Federal Register Vol. 82, No.82,

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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.

Gulfstream periodically applies to amend its supplemental type certificate that installs an executive passenger cabin interior, which includes non-rechargeable lithium batteries, in the GALP Model Gulfstream G150 airplane. The GALP Model Gulfstream G150, approved under type certificate no. A16NM, is a twin engine, transport category airplane with a passenger seating capacity of 9 and a maximum takeoff weight of 26,100 pounds.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the GALP Model Gulfstream G150 airplane, as modified by Gulfstream. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Gulfstream must show that the change and areas affected by the change on the GALP Model Gulfstream G150 airplane meet the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. Earlier amended regulations may not precede those listed in type certificate no. A16NM or, for amended supplemental type certificate projects, those listed in the supplemental type certificate. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

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 GALP Model Gulfstream G150 airplane, as modified by Gulfstream, 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 airplane model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the GALP Model Gulfstream G150 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 novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

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.

These special conditions are applicable to the GALP Model Gulfstream G150 airplane, as modified by Gulfstream. Should Gulfstream apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A16NM to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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 the GALP Model Gulfstream G150 airplane modified by Gulfstream.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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.

Bombardier holds type certificate no. A13NM, which provides the certification basis for the DHC-8-400 series airplanes. The DHC-8-400 series airplanes are twin engine, transport category airplanes with a passenger seating capacity of 86 and a maximum takeoff weight of 61,700 to 65,200 pounds, depending on the specific design.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the DHC-8-400 series airplanes. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Bombardier must show that the DHC-8-400 series airplanes meet the applicable provisions of the regulations listed in type certificate no. A13NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

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 DHC-8-400 series airplanes 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 airplane 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 DHC-8-400 series airplanes 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 novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

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.

These special conditions are applicable to the DHC-8-400 series airplanes. Should Bombardier 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.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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 the Bombardier Model DHC-8-400 series airplanes.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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 March 29, 2012, Gulfstream applied for a type certificate for a new Model GVII-G500 airplane. The GVII-G500 is a twin engine, transport category airplane with a passenger seating capacity of 19 and a maximum certificated takeoff weight of 76,850 pounds.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the GVII-G500 airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.17, Gulfstream must show that the GVII-G500 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-137.

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 GVII-G500 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 airplane 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, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model GVII-G500 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, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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 § 21.17.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123. Sections 25.1353(b)(1) through (4) at Amendment 25-123 remain in effect for other battery installations.

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.

These special conditions are applicable to the GVII-G500 airplane. Should Gulfstream 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.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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 the Gulfstream Model GVII-G500 airplane.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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.

Bombardier holds type certificate no. T00008NY, which provides the certification basis for the BD-500-1A10 airplane. The BD-500-1A10 is a twin engine, transport category airplane with a passenger seating capacity of 127 and a maximum takeoff weight of 134,000 pounds.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the BD-500-1A10 airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Bombardier must show that the BD-500-1A10 airplane meets the applicable provisions of the regulations listed in type certificate no. T00008NY or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

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 BD-500-1A10 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 airplane 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 BD-500-1A10 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 novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

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.

These special conditions are applicable to the BD-500-1A10 airplane. Should Bombardier 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.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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 the Bombardier Model BD-500-1A10 airplane.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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.

Bombardier holds type certificate no. T00003NY, which provides the certification basis for the BD-700-1A11 airplane. The BD-700-1A11 is a twin engine, transport category airplane with a passenger seating capacity of 19 and a maximum takeoff weight of 87,700 to 92,500 pounds, depending on the specific design.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the BD-700-1A11 airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Bombardier must show that the BD-700-1A11 airplane meets the applicable provisions of the regulations listed in type certificate no. T00003NY or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

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 BD-700-1A11 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 airplane 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 BD-700-1A11 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 novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

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.

These special conditions are applicable to the BD-700-1A11 airplane. Should Bombardier 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.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in 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, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

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 the Bombardier Model BD-700-1A11 airplane.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class E airspace extending upward from 700 feet above the surface in the airspace near Ruston, LA, to accommodate IFR procedures at the new Ruston Regional Airport.

On October 12, 2016, the FAA published in the Federal Register (81 FR 70372) Docket No. FAA-2016-9151, a notice of proposed rulemaking (NPRM) to remove Class E airspace extending upward from 700 feet above the surface at Ruston Municipal Airport, Ruston, LA. The FAA also proposed to establish Class E airspace extending upward from 700 feet above the surface within a 6.5 mile radius of the new Ruston Regional Airport, Ruston, LA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received stating, “This would open up airspace because there would not be controlled airspace as the airport has shut down.” While this comment is factually correct, the new airport and associated airspace has been established approximately 2.5 NM from the location of the closed airport so the change in the airspace footprint is minimal.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes Class E airspace at Ruston Municipal Airport, Ruston, LA, as the airport has closed; therefore, controlled airspace is no longer needed. Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the new Ruston Regional Airport, Ruston, LA is established for the safety and management of standard instrument approach procedures for IFR operations at the new airport.

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

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

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

The New York City Department of Transportation, the owner of the bridge, requested a temporary deviation from the normal operating schedule to facilitate application of protective coating to the bridge as well as maintenance of operating machinery. The Hutchinson River Parkway Bridge, across the Hutchinson River, mile 0.9 at New York, New York has a vertical clearance of 30 feet at mean high water and 38 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.793(b).

Under this temporary deviation, between April 3, 2017 and September 29, 2017 the draw of the Hutchinson River Parkway Bridge will be closed to navigation for a period not to exceed 7 days; the draw will then open for vessels in accordance with established operating regulations for a period not to exceed another 7 days, after which the cycle will repeat.

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

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

The following outline is provided to aid in locating information in this preamble.

EPA is approving a SIP revision submitted by the State of Maine on November 26, 2008, concerning updates to emission statement requirements for certain stationary sources that emit criteria pollutants. The Maine requirements, set out in Chapter 137 Emission Statements, were revised to be consistent with EPA's Air Emissions Reporting Requirements (AERR) at 40 CFR part 51, subpart A.

Sections 182(a)(3)(B) and 184(b)(2) of the CAA require that states develop and submit, as SIP revisions, rules which establish annual reporting requirements from certain stationary sources. EPA proposed updates to AERR on January 3, 2006 (71 FR 69) and then finalized the rule on December 17, 2008 (73 FR 76539). On November 26, 2008, Maine submitted a formal revision to its State Implementation Plan (SIP), which consists of updates to Maine's Chapter 137 Emission Statements rule. On January 23, 2017, Maine withdrew from the submittal certain sections of Chapter 137. EPA last approved Maine's Chapter 137 Emission Statements on November 21, 2007 (72 FR 65462).

Maine's November 26, 2008 SIP submittal includes Chapter 137 Emission Statements, effective in Maine on November 8, 2008, less the portions Maine withdrew from the submittal on January 23, 2017. The withdrawn sections no longer pending before EPA address non-criteria pollutant (i.e., greenhouse gas and hazardous air pollutant (HAP)) reporting requirements. Specifically, the following sections of Chapter 137 were withdrawn from the submittal: Sections 1(C), (E), and (F); Definitions 2(A) through (F) and (I); Sections 3(B) and (C); the last sentence of Section 4(D)(5), and all of Appendices A and B.

Maine's Chapter 137 Emission Statements has been revised to incorporate changes to be consistent with the AERR. The revised rule adds a definition for the term “Process Unit,” which is defined as “any combination of equipment or operation and material or fuel which emits pollutants.” The revised rule also includes an earlier emissions statement filing deadline. The deadline which was previously September 1 of the year following the inventory, was changed to July 1, 2009 for the 2008 inventory and then later changed to May 15 of the year following the inventory year beginning with inventory year 2009. The revisions also specify additional information to be submitted in the inventory statements:

1. Technical contact name, telephone number and email;

2. Latitude and longitude method accuracy description code used to define the accuracy of the geographic data;

3. Emissions control status indicating whether reported emissions are controlled or uncontrolled;

4. Unit type code indicating the type of emissions unit (e.g., boiler, turbine, etc.);

5. Unit operating status code indicating the operating status of the emissions unit (e.g. operating, permanently shut down, etc.);

6. Unit operating status date indicating the year in which the unit status is applicable; and

7. Emission release point type indicating the physical configuration of the release point (e.g., stack, fugitive, etc.).

EPA is approving, and incorporating into the Maine SIP, revised Chapter 137 Emission Statements, with the exception of portions of Chapter 137 that were withdrawn from Maine's submittal: Sections 1(C), (E), and (F); Definitions 2(A) through (F) and (I); Sections 3(B) and (C); the last sentence of Section 4(D)(5); and Appendix A and B.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective June 30, 2017 without further notice unless the Agency receives relevant adverse comments by May 31, 2017.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 30, 2017 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On November 21, 2016, Tennessee submitted a SIP revision consisting of a revision to its 110(a)(1) maintenance plan for the 1997 8-hour ozone NAAQS for the Middle Tennessee Area and the technical noninterference demonstration supporting the State's request to change the federal RVP requirements from 7.8 psi to 9.0 psi in the Area. In a notice of proposed rulemaking (NPR) published on February 24, 2017 (82 FR 11517), EPA proposed to approve the State's noninterference demonstration and the updates to updated emissions inventory and projections associated with the mobile source modeling used in the State's noninterference demonstration related to RVP. The details of Tennessee's submittal and the rationale for EPA's actions are explained in the NPR. EPA did not receive any adverse comments on the proposed action.

EPA is approving Tennessee's November 21, 2016, SIP revision consisting of a revision to its 110(a)(1) maintenance plan for the 1997 8-hour ozone NAAQS for the Middle Tennessee Area and the technical noninterference demonstration supporting the State's request to change the federal RVP requirements from 7.8 psi to 9.0 psi in the Area. Specifically, EPA is finalizing updated emissions inventory and projections associated with the mobile source modeling used in the State's noninterference demonstration related to RVP. EPA has determined that the change in the RVP requirements for Davidson, Rutherford, Sumner, Williamson, and Wilson Counties will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA.

EPA has determined that Tennessee's November 21, 2016, RVP-related SIP revision is consistent with the applicable provisions of the CAA for the reasons provided in the NPR. Through this action, EPA is not removing the federal 7.8 psi RVP requirement for Davidson, Rutherford, Sumner, Williamson, and Wilson Counties. Any such action would occur in a separate rulemaking.

In accordance with 5 U.S.C. 553(d), EPA finds that there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary because today's action approves a noninterference demonstration that will serve as the basis of a subsequent action to relieve the Area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule grants or recognizes an exemption or relieves a restriction, and section 553(d)(3), which allows an effective date less than 30 days after publication as otherwise provided by the agency for good cause found and published with the rule. The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule will serve as a basis for a subsequent action to relieve the Area from certain CAA requirements. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

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

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

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

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

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

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, October 7, 1999);

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

The Clean Air Act (CAA) requires states in the Ozone Transport Region (OTR), as well as moderate and above ozone nonattainment areas, to implement RACT for major sources of volatile organic compounds. Connecticut is in the OTR and the state is currently designated nonattainment and classified as moderate for the 2008 ozone standard. See 40 CFR 81.307.

The Connecticut Department of Energy and Environmental Protection (CT DEEP) submitted to EPA two single source orders establishing RACT for sources of VOCs for incorporation into the Connecticut State Implementation Plan (SIP), and also submitted requests to withdraw from the SIP seven previously-approved orders. The two orders submitted for approval are Consent Order 8001, issued to Mallace Industries, located in Clinton, Connecticut, submitted to EPA on January 13, 2006, and Consent Order 8029, issued to Hamilton Sundstrand, located in Windsor Locks, Connecticut, submitted to EPA on November 15, 2011. The seven withdrawal requests are for the following previously-approved Consent Orders: Order 8021 issued to Pfizer Global Manufacturing; Order 8032 issued to Heminway and Bartlett Company (which was subsequently renamed Coats North America); Order 8009 issued to Uniroyal Chemical Company; Order 8200 issued to Watson Laboratories; Order 8014 issued to Pratt & Whitney Aircraft; Order 8011 issued to the Dow Chemical Company; and Order 8010 issued to Sikorsky Aircraft.

A description of these submittals and our evaluation of them appears below in Section II of this document.

Consent Order 8001 was issued to Frismar, Incorporated, located in Clinton, Connecticut, on October 19, 1987, pursuant to section 22a-174-20(cc) of the Regulations of Connecticut State Agencies (RCSA),1 which at the time was the state's alternative emission reduction mechanism for sources that could not otherwise meet prescribed RACT measures. Connecticut submitted the order to EPA as a SIP revision request, and EPA approved the order on November 28, 1989. See 54 FR 48885. Subsequently, ownership of the facility changed to Mallace Industries, and on September 13, 2005, Connecticut issued Consent Order 8258 to Mallace to maintain the appropriate, enforceable operating conditions contained within Order 8001, and to reflect the new ownership and current operating conditions. Consent Order 8258 contains a lower annual cap for one of the two paper coating machines at the facility, lowering its annual emissions cap from 34.0 tons to 15.9 tons. With this restriction, the source's total emissions will be below the 50 tons per year major source RACT applicability threshold. The order contains daily, monthly, and annual recordkeeping requirements, and the facility is required to submit a report to the state annually that includes a summary of the monthly VOC emissions for the facility. Connecticut held a public hearing on Consent Order 8258 on January 6, 2006, and by letter dated January 13, 2006, submitted the order to EPA as a SIP revision request. Since Consent Order 8258 has a lower cap on emissions than the previously SIP-approved order for this facility, the anti-back sliding requirements of Section 110(l) of the CAA have been met. Therefore, we are approving the order into the Connecticut SIP.

Consent Order 8029 was issued to Hamilton Standard, located in Windsor Locks, Connecticut, on December 22, 1989, pursuant to RCSA section 22a-174-20(ee).2 Connecticut submitted the order to EPA as a SIP revision request, which EPA approved on March 12, 1990. See 55 FR 9121. Subsequently, the facility determined that potential VOC emissions from test rigs were also subject to VOC RACT. Since the original order did not cover this equipment, Connecticut issued an amended order, Consent Order 8029A, to supersede the original order. Consent Order 8029A maintains the appropriate, enforceable operating conditions contained within Order 8029, and contains additional VOC limits for calibration fluids used in the facility's test rigs. Connecticut held a public hearing on Consent Order 8029A on August 24, 2011, and by letter dated November 15, 2011, submitted the order to EPA as a SIP revision request. Since the order contains additional emission reduction requirements beyond the previously SIP-approved order for this facility, the anti-back sliding requirements of Section 110(l) of the CAA have been met. Therefore, we are approving the order into the Connecticut SIP.

In addition, the CAA section 193 General Savings Clause applies to the above two orders since they were approved into the Connecticut SIP prior to the CAA amendments of 1990. Section 193 of the CAA prohibits any control measure in effect in a nonattainment area prior to the enactment of the CAA Amendments of 1990 to be modified after enactment, unless such modification yields equivalent or greater emission reductions. Our review of the updated orders issued to Mallace Industries and Hamilton Sundstrand indicates that they meet this requirement.

In 1988, Connecticut issued Consent Order 8021 to Pfizer Incorporated, located in Groton, Connecticut, to establish VOC RACT requirements pursuant to RCSA section 22a-174-20(ee). The state submitted this order to EPA as a SIP revision request, and EPA approved it into the Connecticut SIP on November 30, 1989. See 54 FR 49284. During an inspection conducted on September 3, 2002, Connecticut confirmed that the manufacturing operations covered by Order 8021 had been permanently discontinued. Furthermore, within an April 23, 2003 letter to Connecticut, Pfizer notified the agency that it no longer intended to manufacture any of the products subject to Order 8021, making the order obsolete. By letter dated July 1, 2004, Connecticut requested that Order 8021 be withdrawn from the SIP. The state held a public hearing on this SIP withdrawal request on January 15, 2004, and we are approving the request and removing the order from the Connecticut SIP. For facilities such as this, as well as those described in sections III.2, III.3, and III.4 below, where operations have been permanently discontinued (i.e., equipment has been removed) and this fact has been confirmed by inspection, the CAA section 110(l) anti-back sliding requirements and the CAA section 193 General Savings Clause requirements have been met as there are no longer any emissions from these operations.

Connecticut issued Consent Order 8032 to the Heminway and Bartlett Company, located in Watertown, Connecticut, in 1989. The order was issued to establish VOC RACT requirements pursuant to RCSA section 22a-174-20(ee), and an amended order was issued to update the ownership and operating conditions at the facility in 2004. Subsequent to the issuance of the amended order, the facility shut down, which Connecticut confirmed by an inspection conducted on May 13, 2005. Accordingly, Connecticut submitted a SIP revision request on January 13, 2006, asking that the order, which EPA approved into the Connecticut SIP on March 12, 1990 (see 55 FR 9442), be removed from the Connecticut SIP. The state held a public hearing on this SIP withdrawal request on January 6, 2006, and we are approving the request and removing the order from the Connecticut SIP.

Connecticut issued Consent Order 8009 to the Uniroyal Chemical Company, located in Naugatuck, Connecticut, in 1989. The order was issued to establish VOC RACT requirements pursuant to RCSA section 22a-174-20(ee). Connecticut submitted Order 8009 to EPA as a SIP revision request, which EPA approved on December 22, 1989. See 54 FR 52798. Subsequent to the issuance of the order, the facility shut down, which Connecticut confirmed by an inspection conducted on August 26, 2004. Accordingly, Connecticut submitted a SIP revision request on January 13, 2006, asking that the order be removed from the Connecticut SIP. The state held a public hearing on this SIP withdrawal request on January 6, 2006, and we are approving the request and removing the order from the Connecticut SIP.

Connecticut issued Consent Order 8200 to Watson Laboratories, located in Danbury, Connecticut, in 2002. The order was issued to establish VOC RACT requirements pursuant to RCSA section 22a-174-32(e)(6).3 Connecticut submitted Order 8200 to EPA as a SIP revision request, and EPA approved the Order on October 24, 2005. See 70 FR 61384. Subsequent to the issuance of the order, the facility shut down, which Connecticut confirmed by an inspection conducted on September 13, 2005. Accordingly, Connecticut submitted a SIP revision request on January 13, 2006, asking that the order be removed from the Connecticut SIP. The state held a public hearing on this SIP withdrawal request on January 6, 2006, and we are approving the request and removing the order from the Connecticut SIP.

Connecticut issued Consent Order 8014 to Pratt & Whitney Aircraft located in East Hartford, Connecticut, in 1989. The order was issued to establish VOC RACT requirements pursuant to RCSA section 22a-174-20(ee). Connecticut submitted the order to EPA as a SIP revision request, and EPA approved the Order on May 30, 1989. See 54 FR 22890. Subsequent to the issuance of the order, Connecticut adopted regulations limiting VOC emissions from the equipment and activity covered by Order 8014, and the facility ceased operation of most activity covered by the order. Specifically, the degreasers covered by Order 8014 have all been removed from the facility. Additionally, in 2010, Connecticut adopted section 22a-174-20(ii) defining RACT for hand wiping operations. These requirements were approved by EPA on June 9, 2014 (see 79 FR 32873) and are at least as stringent as those within Order 8014. Accordingly, Connecticut submitted a SIP revision request on July 15, 2016, asking that Order 8014 be removed from the Connecticut SIP. The state offered a notice of opportunity for public hearing on this SIP withdrawal request on March 18, 2016. Since the newer SIP-approved regulatory requirements are at least as stringent as the previously SIP-approved order, the CAA section 110(l) anti-back sliding requirements and the CAA section 193 General Savings Clause requirements have been met. Therefore, we are approving the state's request and removing the Order 8014 from the Connecticut SIP.

Connecticut issued Consent Order 8011 to the Dow Chemical Company located in Gales Ferry, Connecticut, in 1988. The order was issued to establish VOC RACT requirements pursuant to RCSA section 22a-174-20(ee). Connecticut submitted Order 8011 to EPA as a SIP revision request, and EPA approved the Order on March 8, 1989. See 54 FR 9781. Subsequent to the issuance of the order, Dow shut down portions of its manufacturing operation, and transferred other portions of its manufacturing operations to Trinseo, LLC, and Americas Styrenics, LLC. Connecticut confirmed by an inspection conducted on August 1, 2011, that portions of the manufacturing operations covered by Order 8011 had been dismantled. Additionally, a Connecticut “Order Closure” dated May 4, 2016, indicates that Dow no longer owns or operates equipment covered by Order 8011, and that the VOC emitting equipment remaining at the facility operated by the entities mentioned above are subject to similar regulatory limits which, in most cases, were transferred to the new owners. Accordingly, Connecticut submitted a SIP revision request on July 15, 2016, asking that the Order 8011 be removed from the Connecticut SIP. The state provided public notice and an opportunity to comment on its intent to revise the SIP. Since the VOC emitting equipment subject to the Order 8011 has either been removed from the facility or is covered by other regulatory requirements that are at least as stringent as that required by Order 8011, the CAA Section 110(l) anti-back sliding requirements and the CAA section 193 General Savings Clause requirements have been met. Therefore, we are approving Connecticut's request, and removing the order from the Connecticut SIP.

Connecticut issued Consent Order 8010 to Sikorsky Aircraft located in Stratford, Connecticut, in 1988. The order was issued to establish VOC RACT requirements pursuant to RCSA section 22a-174-20(ee). Subsequently, in 1995, Connecticut added Addendum A to the order to set coating limits for the facility. Addendum B was also added to the order, providing emission reduction credits as a result of degreaser shutdowns. Connecticut submitted Order 8010 and both addenda to EPA as a SIP revision request, which EPA approved on February 9, 1998. See 63 FR 6484.

Subsequent to the issuance of the order and addenda, Connecticut issued Order 8246 to Sikorsky on October 31, 2003, to reflect updated operating conditions and regulations applicable to the facility. Order 8246 required Sikorsky to limit VOC emissions to the emission limits specified within 22a-174-20(s), with the exception of the limits for the coating of the exterior surface of assembled aircraft, as the facility could not meet that limit. Therefore, Order 8246 provided a method of compliance for the facility's use of exterior aircraft coatings through the generation and use of VOC emission reduction credits to offset excess emissions.

Subsequent to the issuance of Order 8246, Connecticut adopted amendments to 22a-174-20(s). EPA approved the amendments to RCSA 22a-174-20(s) into the Connecticut SIP on June 9, 2014. See 79 FR 32873. The amendments incorporated VOC content limits for coatings from EPA's aerospace National Emission Standard for Hazardous Air Pollutants (NESHAP) (see 40 CFR part 63, subpart GG), and EPA's aerospace control techniques guideline (see EPA-453/R-97-004, December 1997). By letter dated January 30, 2014, Sikorsky documented that all coatings used at the facility meet the requirements of the amended version of 22a-174-20(s). Since the facility demonstrated that it can meet the limits within 22a-174-20(s), compliance via the generation and use of VOC emission reduction credits is no longer necessary.

On May 4, 2016, Connecticut closed out the order because it had become obsolete, primarily due to the state's adoption of amendments to RCSA 22a-174-20(s). Connecticut submitted a withdrawal request to EPA for Order 8010 on July 15, 2016, asking that it be removed from the Connecticut SIP. The state offered a notice of opportunity for public hearing on this SIP withdrawal request on March 18, 2016. Since the current SIP requirements are at least as stringent as those in Order 8010, the CAA Section 110(l) anti-back sliding requirements and the CAA section 193 General Savings Clause requirements have been met. Therefore, we are approving Connecticut's request, and removing the order from the Connecticut SIP.

In addition, although Connecticut had previously submitted Order 8246 for Sikorsky to EPA as a SIP revision request, this request was later withdrawn by letter dated July 21, 2016, prior to EPA taking action on it.

EPA is approving, and incorporating into the Connecticut SIP, single source orders that establish VOC RACT requirements for Mallace Industries and Hamilton Sundstrand. EPA is also removing from the Connecticut SIP previously approved orders for Pfizer Global Manufacturing, Coats North America, Uniroyal Chemical Company, Watson Laboratories, Pratt and Whitney Aircraft, Dow Chemical, and Sikorsky Aircraft.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective June 30, 2017 without further notice unless the Agency receives relevant adverse comments by May 31, 2017.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 30, 2017 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rulemaking, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is incorporating by reference VOC RACT orders for Mallace Industries and Hamilton Sunstrand, as previously discussed in section II in this rulemaking. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

On January 9, 2017, 82 FR 2305, the EPA proposed to approve the following rules into the Arizona SIP:

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

The EPA's proposed action provided a 30-day public comment period. We received no comments during this period.

No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these rules into the Arizona SIP.

EPA notes that R18-2-610.03, Section F, and R18-2-612.01, Section E, allow commercial farmers and irrigation districts to develop BMPs different than those in the July 2, 2015 version of the rules and to submit alternatives “that are proven effective through on-farm demonstration trials” to the AgBMP Committee. These provisions also state that alternative BMPs “shall not become effective unless submitted as described in A.R.S. § 49-457(L),” and ARS § 49-457(L) in turn provides that approved alternative BMPs must be submitted to EPA as a SIP revision.1 EPA understands these provisions to establish the point at which alternative BMPs may take effect as a matter of state law. For alternative BMPs to take effect as a matter of federal law, the State of Arizona must submit them to EPA as a revision to the SIP, and EPA must complete a notice and comment rulemaking process approving them as part of the SIP.2

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Arizona statute and rules, and PCAPCD rules, described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.3 The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

On October 11, 2016 (81 FR 70064 and 81 FR 70020), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for the District. EPA received a comment on the rulemaking and attempted to withdraw the DFR prior to the effective date of December 12, 2016. However, EPA inadvertently did not withdraw the DFR prior to that date and the rule prematurely became effective on December 12, 2016, revising the District's SIP to include DCMR Chapters 1, 5, and 8 of Title 20 on that date. In the NPR, EPA had proposed to approve the SIP revision, which would add the revised versions of DCMR Chapters 1, 5, and 8 of Title 20 to the District's SIP. These revisions to the DCMR reduce the allowable sulfur content of fuel oils that are combusted in oil-burning combustion units in the District. On January 20, 2016, the District, through the District of Columbia Department of Energy and Environment, submitted the aforementioned regulations for inclusion into the District's SIP. The revisions to the DCMR reduce the sulfur content of fuel oil that can be combusted within the District and prohibit the combustion of certain higher sulfur content fuel oil regardless of where the fuel is refined. EPA is responding to the comment submitted on the proposed revision to the District's SIP, is approving the low sulfur fuel oil regulations for inclusion in the District's SIP, and is amending the effective date of the regulations' inclusion in the SIP to correct our failure to withdraw the DFR (after EPA received adverse public comments) prior to the December 12, 2016 effective date of the DFR.

The combustion of fuel oil containing sulfur leads to direct emissions of fine particulate matter (PM2.5) and also sulfur dioxide (SO2)—a pollutant which is a precursor to secondary formation of PM2.5 pollution. In addition, SO2 emissions oxidize in the atmosphere to form sulfates, which are one of the largest contributors to the formation of regional haze, which impairs visibility in the atmosphere by the scattering and absorption of sunlight by fine particles. Visibility impairment reduces the clarity, color, and visible distance that one can see. The District asserts its regulations limiting sulfur content in fuel oil used by certain fuel combustion sources and the prohibition of combustion of high sulfur content fuel oil within the District will decrease SO2 emissions and therefore strengthen the District's SIP. The reduction in SO2 emissions helps the District to maintain the national ambient air quality standards (NAAQS) for SO2 and PM2.5. Additional SO2 emission reductions and subsequent reductions in sulfates from District sources combusting lower sulfur fuel will assist the District in achieving further reasonable progress towards reducing regional haze. Under section 169A of the CAA, it is a national goal to remedy and prevent regional haze in any Class I areas.1 Section 169A requires states which contain Class I areas and states from which emissions may reasonably be anticipated to cause or contribute to visibility impairment in Class I areas to submit SIP revisions to make reasonable progress toward meeting the national goal (regional haze SIPs). The District's regional haze program to address visibility impairment requirements in Class I areas was fully approved into the District's SIP by EPA on February 2, 2012. See 77 FR 5191.2 The District has submitted revised regulations for SIP approval to implement its low sulfur fuel oil program.

These revisions to DCMR Chapters 1, 5, and 8 of Title 20 require that the sulfur content of Number 2 (No. 2) fuel oil be no greater than 500 parts per million (ppm); the sulfur content of Number 4 (No. 4) fuel oil be no greater than 2,500 ppm; and prohibit the use of Number 5 (No. 5) and heavier fuel oils in the District. Additionally, beginning July 1, 2018, the sulfur content of No. 2 fuel oil can be no greater than 15 ppm. Any fuel oil stored by the ultimate consumer in the District prior to the applicable compliance date may be used after the applicable compliance date. The revisions also include changes to reporting and recordkeeping requirements related to the use and storage of the aforementioned fuel oils. Definitions for terminology which relate to reporting and recordkeeping requirements were added.

The updates to Chapter 1 include amendments to the definitions of “American Standards of Testing Materials (ASTM)” and “distillate oil.” The revision to Chapter 5 includes updates to the sampling and testing practices for fuel oils. The amended Chapter 5 regulations require the use of various ASTM methods for the sampling of petroleum; an ASTM standard for the determination of fuel oil grade; and various ASTM methods for the determination of sulfur content in fuel oil. Chapter 8 includes the revised sulfur content for No. 2 and No. 4 fuel oils and prohibits combustion of No. 5 and heavier fuel oils in the District. Chapter 8 also includes the aforementioned compliance provision and definitions related to reporting and recordkeeping requirements.3

As discussed in the DFR and NPR, EPA finds the District's low sulfur fuel regulations will improve visibility while also helping the District to maintain the NAAQS for SO2 and PM2.5 by reducing sulfur oxide emissions and PM2.5 emissions through reduction of sulfur in fuel oils combusted in the District. EPA finds that these regulations strengthen the District's SIP. EPA notes that existing provisions and the adoption of a low sulfur fuel oil program in the District will lead to SO2 emission reductions and provide additional SO2 and PM2.5 emission reductions from the District to achieve further reasonable progress towards reducing regional haze in nearby Class I areas, which may be impacted by emissions from the District.

EPA received comments from the Export Inspection Council of India within the Ministry of Commerce and Industry, Government of India (hereinafter referred to as “commenter”) on November 10, 2016.

Comment Summary: The commenter noted that the District is of the view that the lower sulfur fuel oil regulation will decrease SO2 emissions from certain fuel combustion sources which results in the strengthening of the District's SIP and which will help the District maintain the SO2 NAAQS. The commenter asked whether this SIP revision is based on any scientific studies or justifications on the low sulfur content of fuel oil. The commenter also asked whether the rule implementing the lower sulfur content of fuel oil has any significance to meeting any “multilateral obligation.” Finally, the commenter inquired whether the proposed SIP revision applies to only domestically produced fuel oil or also applies to fuel oil exported to the United States.

Response: In response to the commenter's inquiry whether this regulation applies to fuel oil imported into the District, as well as to fuel oil produced within the District, EPA notes that the District's regulation applies to all fuel oil to be combusted within the District and limits the sulfur content of fuel oil combusted within the District regardless of where the fuel oil is refined. Thus, EPA responds to the commenter that the District's regulation limits the sulfur content of all fuel oil combusted within the District, whether the fuel oil is domestically produced or imported from sources outside the District or outside the United States. See title 20 of DCMR chapter 8 section 801.

As the commenter notes, the District's regulation lowering the sulfur content of fuel oil combusted within the District will reduce SO2 emissions within the District and aid the District in attaining and maintaining the SO2 NAAQS as EPA noted in the NPR. The District's regulation to reduce the sulfur content in fuel oil is also a response by the District to address regional needs to reduce SO2, the primary pollutant in the Mid-Atlantic and Northeast United States responsible for visibility impairment or regional haze. To address CAA requirements for regional haze, the Mid-Atlantic and Northeastern states agreed to pursue common efforts to reduce SO2 and visibility impairment. One effort to which these states agreed was the reduction of sulfur content in fuel oil. A contribution assessment for these states was prepared for the first round of regional haze SIPs due in 2007 entitled Contributions to Regional Haze in the Northeast and Mid-Atlantic United States. 4 The assessment provided an analysis of pollutant contributions to the formation of regional haze as well as pollutant apportionment among states in the Mid-Atlantic and Northeast regions of the United States. The assessment found that SO2 accounts for 20 percent of the haziest days in the Mid-Atlantic and Northeast region. These states developed a coordinated course of action to address the SO2 emissions contributing to regional haze in the eastern United States and asked states in this area to adopt regulations to lower the sulfur content of fuel oil. To meet this coordinated course of action and to also reduce SO2 emissions in general to aid in attaining and maintaining the SO2 NAAQS, the District adopted the low sulfur fuel oil regulations, which are the subject of this SIP revision. Other than this “contribution assessment,” which aided states in the Mid-Atlantic and Northeast regions to address regional haze, EPA is not aware of any other scientific studies or justifications on low sulfur content of fuel oil on which the District's regulation for sulfur content in fuel oil is based.

Finally, regarding whether the District's regulation has any significance to meeting any multilateral obligation, EPA is unaware to what the commenter refers by “multilateral obligation” as the commenter has not defined this phrase. Assuming arguendo that the commenter meant to ask whether this low sulfur fuel regulation from the District addresses any obligations of the District or of the United States to “international communities” via treaties or other international law obligations, EPA is not aware of any “multilateral obligations” to which this regulation is intended to apply. The District's January 20, 2016 submission only states that its submitted regulation which lowers the sulfur content of fuel combusted within the District was intended to reduce SO2 emissions within the District and aid the District in attaining and maintaining the SO2 NAAQS. The District's January 20, 2016 SIP revision submittal did not address whether the District's regulation addressed any multilateral obligation nor is EPA aware of any multilateral obligation which this regulation is intended to address.

EPA is approving revisions to the DCMR Chapters 1, 5, and 8 of Title 20 for inclusion in the District's SIP because the revisions meet the requirements of the CAA in section 110 and strengthen the District's SIP. The revisions to the DCMR Chapters include limits on sulfur content in fuels to be combusted within the District and a prohibition on combustion of high sulfur content fuels which will reduce SO2 emissions in the District. EPA is also amending the effective date of the inclusion of these revisions to the District's SIP because the revisions were added to the SIP prematurely on December 12, 2016 when EPA failed to withdraw its DFR after receiving a comment on our approval of the District's low sulfur fuel regulations. This rule which responds to the comment received finalizes our approval and corrects the premature effective date for inclusion of the revised low sulfur fuel regulations in the District's SIP.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the DCMR Chapters 1, 5, and 8 of Title 20. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update of the SIP compilation.5 EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving the revisions to the District of Columbia's regulations to lower the sulfur content of fuel oil may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

On October 6, 2014, Rhode Island submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of a request to remove from its SIP Air Pollution Control (APC) Regulation 41, entitled “NOX Budget Trading Program” (Rhode Island NBP). The regulation is no longer needed as the subject facilities' Title V permits, which contain SIP-derived NOX emissions limits, collectively contain maximum allowable emission limitations (682 tons) that are significantly lower than the 936-ton limit in the EPA-approved Rhode Island NBP. In addition, any new sources that would be constructed are subject to the state's new source review program, which has been approved by EPA into the Rhode Island SIP (64 FR 67500; December 2, 1999).

Rhode Island's NBP was a market-based cap and trade program, which was created to reduce emissions of NOX from power plants and other large combustion sources in response to EPA's NOX SIP Call (63 FR 57356; October 27, 1998). The NOX SIP call originally required 22 States, including Rhode Island, and the District of Columbia to meet statewide NOX emission budgets during each ozone season (May 1 to October 1) beginning in 2003. In February 1999, Rhode Island, Massachusetts, and Connecticut signed a memorandum of understanding agreeing to distribute the Electric Generating Unit (EGU) portions of the three states' budgets amongst themselves. Therefore, Rhode Island's SIP submittal for its Regulation 41 “NOX Budget Trading Program” (Rhode Island NBP) to meet NOX SIP Call requirements was approved at the same time as those from Massachusetts and Connecticut (65 FR 81743; December 27, 2000).

Sources covered by the Rhode Island NBP include sources with a nameplate capacity greater than 15 megawatts electric (MWe) or with a maximum design heat input greater than 250 million British thermal units per hour (MMBtu/hr). The five sources meeting the NBP applicability criteria are Ocean State Power, Pawtucket Power Associates, Dominion Energy Manchester Street, Inc., Tiverton Power Inc., and Entergy Rhode Island State Energy, L.P. The EPA-approved Rhode Island NBP set the total NOX emission budget for all applicable sources for each control period (i.e., the May through October ozone season) at 936 tons.

In May 2005, EPA issued the Clean Air Interstate Rule (CAIR) (70 FR 25162; May 12, 2005), which covered 27 eastern states and the District of Columbia. CAIR used a cap and trade program to reduce sulfur dioxide (SO2) and NOX emissions from power plants and other large combustion sources to meet the 1997 annual and 24-hour fine particle (PM2.5) and 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS). By 2009, CAIR had replaced NBPs for CAIR states. CAIR was subsequently replaced by the Cross-State Air Pollution Rule (CSAPR) (76 FR 48208; August 8, 2011). CSAPR implementation began on January 1, 2015. EPA revised the CSAPR ozone-season NOX program by issuing an update to CSAPR for the 2008 ozone NAAQS, known as the CSAPR Update (81 FR 74504; October 26, 2016). The CSAPR Update will largely replace the original CSAPR ozone-season NOX program on May 1, 2017. Rhode Island was not covered by CAIR, CSAPR, or the CSAPR Update. However, neither CAIR nor CSAPR preempted or replaced the underlying requirements of the NOX SIP Call and, therefore, Rhode Island remains subject to those requirements.

In order for Rhode Island to be able to remove its NBP from the SIP, the state has demonstrated that its total NOX emission limitation under its NBP (936 tons during each ozone-season control period) would be retained. As noted earlier, all of the sources meeting the Rhode Island NBP applicability criteria have Title V permits, which contain SIP-derived NOX emissions limits, that collectively limit their allowable NOX emissions to amounts below 936 tons, and these sources also remain subject to adequate monitoring, recordkeeping and reporting requirements.

On April 7, 2014, Rhode Island Department of Environmental Management (RI DEM) proposed to repeal APC Regulation No. 41 “NOX Budget Trading Program” and offered the public an opportunity to schedule a public hearing on or before May 8, 2014. No requests for a public hearing were requested, and repeal of this regulation under state law became effective on July 29, 2014. On October 6, 2014, RI DEM submitted a SIP revision to EPA to remove APC Regulation No. 41 from the Rhode Island SIP.

EPA has reviewed the Title V permits, and NOX emissions limits contained therein, for the five sources that meet the Rhode Island NBP applicability criteria: Ocean State Power, Pawtucket Power Associates, Dominion Energy Manchester Street, Inc., Tiverton Power Inc., and Entergy Rhode Island State Energy, L.P. These permits, which include emissions limits, and a technical support document (TSD) supporting EPA's evaluation are available in the docket for today's action.

The maximum allowable NOX emissions from the five Rhode Island sources during any ozone-season control period under the Title V permits were calculated using the following conservative assumptions: (1) All units are operating at maximum capacity; and (2) all units are operating at all times throughout the ozone season. As detailed in the TSD, the maximum allowable NOX emissions were calculated to be 682 tons, well below the 936 tons allowed under the Rhode Island NBP. These calculated emissions were also compared to these sources' actual emissions during 2016, the most recent year for which emissions data is available from EPA's Clean Air Markets at https://ampd.epa.gov/ampd/. A spreadsheet showing this data is included in the docket for today's action. Actual 2016 ozone-season NOX emissions for the five sources were 221 tons, significantly below both the 682 tons allowed under the Title V permits and the 936 tons allowed under the Rhode Island NBP. Therefore, the state has been meeting, and will continue to meet, the requirements of the NOX SIP Call.

Furthermore, as Rhode Island is meeting the requirements of the NOX SIP call through the implementation of the facilities' permitted NOX emissions limits, removing APC Regulation No. 41 from the Rhode Island SIP will not interfere with any applicable requirement concerning attainment of the NAAQS, reasonable further progress, or any other applicable Clean Air Act requirement; i.e., the SIP revision meets the Clean Air Act's section 110(l) anti-backsliding requirements. In addition, any new sources that would be constructed would be subject to the state's new source review program which has been approved by EPA into the Rhode Island SIP (64 FR 67500; December 2, 1999). Accordingly, EPA is approving the removal of APC Regulation No. 41 from the Rhode Island SIP.

EPA is approving Rhode Island's request, submitted to EPA on October 6, 2014, to remove from the Rhode Island SIP APC Regulation No. 41 “NOX Budget Trading Program.”

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective June 30, 2017 without further notice unless the Agency receives relevant adverse comments by May 31, 2017.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 30, 2017 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

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

Sections 111(d) and 129 of the CAA require submittal of state plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established by EPA under section 111(b) for new sources of the same source category and the EPA has established emission guidelines for such existing sources. When designated facilities are located in a state, the state must then develop and submit a plan for the control of the designated pollutant. 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 from designated facilities under sections 111(d) and 129 of the CAA. Also, Subpart A of 40 CFR part 62 provides the procedural framework for the submission of these plans.

If a state fails to submit a satisfactory plan, the CAA provides the EPA the authority to prescribe a plan for regulating the designated pollutants at the designated facilities. The EPA prescribed plan, also known as a federal plan, is often delegated to states with designated facilities but no EPA approved state-specific plan. If no such designated facilities exist within a state's jurisdiction, a state may submit to the EPA a letter of certification to that effect (referred to as a negative declaration) in lieu of a state plan to satisfy the state's obligation. 40 CFR 60.23(b) and 62.06. A negative declaration exempts the state from the requirement to submit a CAA section 111(d)/section 129 plan for that designated pollutant and source category. 40 CFR 60.23(b).

On December 1, 2000 (60 FR 75338), the EPA promulgated new source performance standards for new CISWI units, 40 CFR part 60, subpart CCCC, and emission guidelines for existing CISWI units, 40 CFR part 60, subpart DDDD. After a series of legal challenges, amendments, and reconsiderations, the EPA promulgated the Reconsideration and Final Amendments for CISWI units on February 7, 2013 (78 FR 9112) (providing final standards for new and existing sources). A CISWI unit is any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding six months, any solid waste, as that term is defined in 40 CFR part 241, Solid Wastes Used as Fuels or Ingredients in Combustion Units. 40 CFR 60.2875. A state plan must address all existing CISWI units that commenced construction on or before June 4, 2010, or for which modification or reconstruction was commenced on or before August 7, 2013, with limited exceptions as provided in 40 CFR 60.2555. See 40 CFR 60.2550.

As discussed previously, if there are no designated facilities in the state, the state may submit a negative declaration in lieu of a state plan. The EPA will provide public notice of receipt of a state's negative declaration with respect to CISWI. See 40 CFR 60.2530. If any subsequently identified existing CISWI unit is found in a state that had submitted a negative declaration, the Federal plan implementing the emission guidelines for subpart DDDD would automatically apply to that CISWI unit until a state plan is approved. See 40 CFR 60.2530.

The State of Delaware, through the Department of Natural Resources & Environmental Control (DNREC), the District of Columbia District through the Department of Energy & Environment (DDOEE), and the City of Philadelphia through the Department of Public Health, Air Management Services in the Commonwealth of Pennsylvania (Philadelphia AMS) have determined that there are no CISWI units subject to CAA 111(d)/129 requirements in their respective jurisdictional boundaries. Accordingly, each state and local agency has submitted to EPA a negative declaration letter certifying this fact. DNREC submitted a negative declaration letter to EPA on January 7, 2014. DDOEE submitted a negative declaration letter to EPA on November 8, 2013. Philadelphia AMS submitted a negative declaration letter to EPA on March 4, 2015. A typographical error in the letter was noted and clarified by Philadelphia AMS in an email on February 4, 2016. These negative declaration letters and a copy of the February 4, 2016 email are in the docket for this action and are available online at https://www.regulations.gov. A description of the states' submittals and EPA's rationale for the approval is also set forth in a technical support document for this action. Supporting documentation, including the technical support document, for this action is available in the docket for this rulemaking and available online at https://www.regulations.gov.

In this direct final action, EPA is amending 40 CFR part 62 to reflect the receipt of negative declaration letters from the noted state and local agencies. EPA accepts these negative declarations as meeting the requirements in paragraph 40 CFR 60.23(b). Amendments are being made to 40 CFR part 62, subparts I (Delaware), J (District of Columbia), and NN (Pennsylvania). With respect to subpart NN, this action is only applicable to the City of Philadelphia air pollution control agency's jurisdiction; it does not include the remaining geographical areas in the Commonwealth of Pennsylvania. EPA is providing notice of receipt of these negative declarations.

After publication of this Federal Register action, if a designated facility (i.e., existing CISWI unit) is later found within any of the three noted jurisdictions, then the overlooked facility will become subject to the requirements of the federal plan for CISWI units for that designated facility, including the compliance schedule, when promulgated by EPA. See 40 CFR 60.2530. The federal plan would no longer apply if EPA subsequently receives and approves a section 111(d)/129 plan from the jurisdiction with the overlooked CISWI facility.

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 action if adverse comments are filed. This rule will be effective on June 30, 2017 without further notice unless EPA receives adverse comment by May 31, 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 negative declarations from air pollution control agencies without any existing CISWI units within their jurisdictional boundaries. 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 declarations for existing CISWI units from DNREC, DDOEE and Philadelphia AMS. The action 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. This action does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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. 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 June 30, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action approving negative declarations for existing CISWI units from DNREC, DDOEE and Philadelphia AMS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 62 is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0215 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 30, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0215, by one of the following methods:

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

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

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

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

In the Federal Register of May 20, 2015 (80 FR 28925) (FRL-9927-39), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4F8339) by Monsanto Company, 1300 I Street NW., Suite 450 East, Washington, DC 20005. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the nematicide tioxazafen, in or on cattle, fat at 0.01 parts per million (ppm); cattle, meat at 0.01 ppm; cattle, meat byproducts at 0.01 ppm; corn, field, forage at 0.01 ppm; corn, field, grain at 0.01 ppm; corn, field, stover at 0.02 ppm; cotton, gin byproducts at 0.02 ppm; cotton, undelinted seed at 0.01 ppm; goat, fat at 0.01 ppm; goat, meat at 0.01 ppm; goat, meat byproducts at 0.01ppm; horse, fat at 0.01 ppm; horse, meat at 0.01 ppm; horse, meat byproducts at 0.01 ppm; milk at 0.01 ppm; sheep, fat at 0.01 ppm; sheep, meat at 0.01 ppm; sheep, meat byproducts at 0.01 ppm; soybean, forage at 0.15 ppm; soybean, hay at 0.30 ppm; soybean, meal at 0.05 ppm; and soybean, seed at 0.04 ppm. That document referenced a summary of the petition prepared by Monsanto Company, the registrant, which is available in the docket, http://www.regulations.gov. One comment was received in response to the notice of filing. The Agency's response to that comment is contained in Unit IV.C.

Based upon review of the data supporting the petition, EPA is establishing tolerance levels for corn, field, forage; corn, field, grain; and cotton, undelinted seed that differ from what the petitioner requested. In addition, the Agency determined tolerances were not necessary on cattle, fat; cattle, meat; cattle, meat byproducts; goat, fat; goat, meat; goat, meat byproducts; horse, fat; horse, meat; horse, meat byproducts, milk; sheep, fat; sheep, meat; and sheep, meat byproducts because of no expectation of residues. The reasons for these changes are explained in Unit IV.D.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Tioxazafen has low acute toxicity by the oral, dermal and inhalation routes of exposure. It is a mild eye irritant, nonirritating to the skin, and is not a dermal sensitizer.

The adrenal gland in male and female rats was the primary target organ in subchronic and chronic oral toxicity studies. These effects were also observed in the dermal and inhalation (28- and 90-day) toxicity studies. In male rats, adrenal effects included increased adrenal weights and adrenal vacuolation. Although female rats exhibited decreased rather than increased adrenal weights, there were no corresponding histological effects in adrenals of females in the 2-generation reproductive study or the chronic toxicity study to indicate adversity of the finding. The available studies suggest that the male rat may be more sensitive than females to the adrenal effects of tioxazafen.

Evidence of neurotoxicity (i.e., decreased locomotor activity) was observed in the acute neurotoxicity study in the rat. Decreased hindlimb splay observed in the rat subchronic neurotoxicity study was not considered adverse, and there was no evidence of neurotoxicity in the rest of the database and no corroborating neuropathology.

Tioxazafen did not result in developmental effects in either rats or rabbits, and therefore, there is no quantitative or qualitative susceptibility. In rats, the only maternal effects were decreased adrenal weights, and decreased food consumption. No histology was performed on the adrenal to assess potential functional effects. There were no maternal effects in the rabbit of toxicological significance. No offspring toxicity was noted up to 60 milligram/kilogram/day (mg/kg/day) (highest dose tested (HDT)) in the 2-generation reproductive toxicity study.

In an immunotoxicity rat study, decreased serum IgM response (not statistically significant) was noted at the high dose and decreasing median values exhibited a clear dose-response. These findings provide an indication of perturbation/dis-regulation of the immunologic response.

Long-term dietary exposure to high doses of tioxazafen was associated with the development of malignant thoracic hibernomas in female rats, hepatocellular tumors in male and female mice, and hemangiosarcomas in male mice. Based on the observation of tumors in 2 species and both sexes without an adequate mode of action, EPA classified tioxazafen as “likely to be carcinogenic to humans” with a linear cancer slope factor (Q1*) of 9.63 × 10− 3 (mg/kg/day)− 1. Tioxazafen is not considered to be a mutagen.

Specific information on the studies received and the nature of the adverse effects caused by tioxazafen as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document, “Tioxazafen. Human Health Risk Assessment for the First Food Uses on Corn, Cotton, and Soybean Seeds” (K. Rickard, 10/06/2016) in docket ID number EPA-HQ-OPP-2015-0215.

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

A summary of the toxicological endpoints for tioxazafen used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tioxazafen, EPA considered exposure under the petitioned-for tolerances in 40 CFR 180. EPA assessed dietary exposures from tioxazafen in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for tioxazafen. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA conducted an unrefined acute dietary assessment using tolerance-level residues, 100 PCT assumptions, and default processing factors.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA NHANES/WWEIA. As to residue levels in food, EPA conducted an unrefined chronic dietary assessment, using tolerance-level residues, 100 PCT assumptions, and default processing factors.

iii. Cancer. EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. If quantitative cancer risk assessment is appropriate, cancer risk may be quantified using a linear or nonlinear approach. If sufficient information on the carcinogenic mode of action is available, a threshold or nonlinear approach is used and a cancer RfD is calculated based on an earlier noncancer key event. If carcinogenic mode of action data are not available, or if the mode of action data determines a mutagenic mode of action, a default linear cancer slope factor approach is utilized. Based on the data summarized in Unit III.A., EPA has concluded that tioxazafen should be classified as “Likely to be Carcinogenic to Humans” and a linear approach has been used to quantify cancer risk. Unrefined cancer dietary assessments were conducted using tolerance-level residues, 100 PCT assumptions, and default processing factors.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for tioxazafen. Tolerance level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for tioxazafen in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of tioxazafen. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide in Water Calculator (PWC v1.52) consisting of a graphical user interface shell integrating PRZM v.5.02 and VVWMv.1.02.1, the estimated drinking water concentrations (EDWCs) of tioxazafen for acute exposures are estimated to be 4.89 parts per billion (ppb) for surface water and 0.0756 ppb for ground water. For chronic exposures for non-cancer assessments the EDWCs are estimated to be 0.61 ppb for surface water and there was no breakthrough for ground water. Chronic exposures for cancer assessments are estimated to be 0.38 ppb for surface water and there was no breakthrough for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 4.89 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 0.61 ppb was used to assess the contribution to drinking water. For cancer dietary risk assessment, the water concentration of value 0.38 ppb was used to assess the contribution to drinking water.

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

Tioxazafen is not registered for any specific use patterns that would result in residential exposure.

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

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

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

2. Prenatal and postnatal sensitivity. No evidence of quantitative or qualitative increased susceptibility, as compared to adults, was observed in fetuses as a result of in utero exposure in developmental toxicity studies in rats or rabbits, or in offspring as a result of potential in utero or postnatal exposure in a reproduction study in rats.

3. Conclusion. EPA is retaining the 10X FQPA SF for acute exposure scenarios to account for extrapolation to a NOAEL from a LOAEL. For other exposure durations and routes, EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X based on the following findings:

i. The toxicology database for tioxazafen is complete.

ii. Tioxazafen did not result in developmental effects in either rats or rabbits, therefore, there is no evidence of increased qualitative or quantitative susceptibility in the developing fetus. No offspring toxicity was noted up to 60 mg/kg/day (highest dose tested) in the 2-generation reproductive toxicity study.

iii. There is low concern for neurotoxicity. In the acute neurotoxicity study in the rat, decreased locomotor activity was noted and decreased hind limb splay was observed in the rat subchronic neurotoxicity study at week 3 evaluations; however, this effect was not considered adverse since there was no dose response relationship, the response was variable, nonpersistent, and not observed in the 90-day subchronic rat oral toxicity study, and no additional neurotoxicity data are required.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to tioxazafen in drinking water. These assessments will not underestimate the exposure and risks posed by tioxazafen.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to tioxazafen will occupy <1% of the aPAD for all infants <1-year old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to tioxazafen from food and water will utilize <1% of the cPAD for children 1-2 years old the population group receiving the greatest exposure. There are no residential uses for tioxazafen.

3. Short-term risk. Because there are no residential exposures to tioxazafen, a short-term aggregate risk assessment was not conducted.

4. Intermediate-term risk. Because there are no residential exposures to tioxazafen, an intermediate-term aggregate risk assessment was not conducted.

5. Aggregate cancer risk for U.S. population. Using a linear low-dose extrapolation model (Q1*) was used to estimate cancer risk, with a Q1* = 9.63 × 10−3 (mg/kg/day)−1, the Agency estimates cancer risk to Adults 20-49 years old to be 5 × 10−7. EPA generally considers cancer risks (expressed as the probability of an increased cancer case) in the range of 1 in 1 million (or 1 × 10−6) or less to be negligible.

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

Adequate analytical methods are available to enforce the proposed tolerances for tioxazafen and benzamidine in plant commodities. The proposed plant enforcement method, Method 115G8064A, employs a single extraction and determinative step for both analytes. This method was successfully validated by an independent laboratory.

Adequate enforcement methodology (electrospray ionization liquid chromatography with mass spectrometric detection (ESI LC-MS/MS) in positive ion mode) is available to enforce the tolerance expression.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established an MRL for tioxazafen.

EPA received one comment on the Notice of Filing objecting, without any supporting information, to the establishment of these tioxazafen tolerances for concerns about the toxicity of chemicals generally. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned from use on agricultural crops. The existing legal framework provided by section 408 of the FFDCA, however, states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety stand imposed by that statute. EPA has evaluated the available data, assessed the effects of this chemical on human health, and determined that aggregate exposure to it will be safe. The commenter has not provided any information to support altering that safety finding.

Some of the petitioned-for tolerance levels in the Notice of Filing differ from those currently being set by the Agency. Specifically, the Agency has determined that no livestock tolerances are needed as there is no reasonable expectation of finite residues in those commodities. Further, for corn and cotton raw agricultural commodities, the appropriate tolerance level needs to be the sum of the level of quantification of tioxazafen and benzamidine (0.02 ppm) rather than 0.01 ppm.

Therefore, tolerances are established for residues of tioxazafen, in or on corn, field, forage at 0.02 ppm; corn, field, grain at 0.02 ppm; corn, field, stover at 0.02 ppm; cotton, gin byproducts at 0.02 ppm; cotton, undelinted seed at 0.02 ppm; soybean, forage at 0.15 ppm; Soybean, hay at 0.30 ppm; soybean, meal at 0.05 ppm and soybean, seed at 0.04 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

The Federal List of Endangered and Threatened Wildlife (List), which is authorized by the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), is located in title 50 of the Code of Federal Regulations in part 17 (50 CFR 17.11(h)). On September 10, 2012, we published a final rule to remove the gray wolf in Wyoming from the List and remove this population's status as a nonessential experimental population under the ESA (77 FR 55530; “2012 final rule”). Additional background information on the gray wolf in Wyoming and on this decision, including previous Federal actions, can be found in our 2012 final rule at http://www.regulations.gov in Docket No. FWS-R6-ES-2011-0039, or at https://www.fws.gov/mountain-prairie/es/grayWolf.php.

Various groups filed lawsuits challenging our 2012 final rule. On September 23, 2014, the U.S. District Court for the District of Columbia vacated and set aside our 2012 final rule (Defenders of Wildlife v. Jewell, 68 F. Supp. 3d 193 (D.D.C. 2014)) and reinstated our April 2, 2009 (74 FR 15123), final rule that protected gray wolves in Wyoming as a nonessential experimental population under the ESA. On December 1, 2014, the United States appealed the District Court's decision to the U.S. Court of Appeals for the District of Columbia Circuit. Pending the appeal, and consistent with the District Court's September 23, 2014, order, we published a final rule reinstating the April 2, 2009, final rule protecting the gray wolf in Wyoming (80 FR 9218, February 20, 2015).

On March 3, 2017, the U.S. Court of Appeals, in a unanimous opinion, reversed the ruling of the U.S. District Court Defenders of Wildlife v. Zinke, No. 14-5300 (D.C. Cir. March 3, 2017). On April 25, 2017, the U.S. Court of Appeals issued its mandate consistent with its March 3, 2017, opinion reversing the U.S. District Court's vacatur of our 2012 final rule for gray wolves in Wyoming. The issuance of the mandate makes the delisting go into effect. To the extent that a regulatory change is required to effectuate the delisting, we are doing so now. Therefore, this rule amends the List of Endangered and Threatened Wildlife by removing gray wolves in Wyoming.

This rulemaking is necessary to comply with the March 3, 2017, court order and April 25, 2017, mandate. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are impractical and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that the court order and mandate constitute good cause to make this rule effective upon publication.

Per the March 3, 2017, court order and April 25, 2017, mandate, the protections of the ESA are removed for gray wolves in Wyoming. Additionally, the regulations under section 10(j) of the ESA at 50 CFR 17.84(i) and (n) designating Wyoming as a nonessential experimental population area are also removed.

To comply with the court order and mandate discussed above, we amend part 17, subchapter B of chapter I, title 50 of the CFR, as set forth below:

The regulations at § 648.86(o) authorize the Regional Administrator (RA) to implement possession and trip limits for common pool vessels in order to prevent the overharvest of common pool quotas. Effective May 1, 2017, this action sets the initial possession and trip limits for the 2017 fishing year, as summarized in Tables 1 and 2 below. These possession and trip limits were developed after considering any changes to the common pool quota, preliminary 2017 sector rosters, and 2016 catch rates. These adjustments are intended to facilitate optimized harvest of the common pool quotas and prevent early trimester closures.

The initial 2017 possession and trip limits are the same as the initial 2016 limits, with the exception of four stocks (Georges Bank (GB) cod, Gulf of Maine (GOM) haddock, Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder, and witch flounder). The initial possession and trip limit for GB cod outside the Eastern U.S./Canada area and witch flounder are reduced relative to initial 2016 possession and trip limits to prevent early stock area closures in Trimester 1 as occurred in 2016. For GOM haddock and SNE/MA yellowtail flounder, the initial 2017 limits are higher than the initial 2016 limits to allow additional opportunities given that quota utilization was low for these stocks in 2016.

For Handgear A and Handgear B vessels, possession and trip limits for GB and GOM cod are tied to the possession and trip limits for groundfish days-at-sea (DAS) vessels. The default cod trip limit is 300 lb (136 kg) for Handgear A vessels and 75 lb (34 kg) for Handgear B vessels. If the GOM or GB cod landing limit for vessels fishing on a groundfish DAS drops below 300 lb (136 kg), then the respective Handgear A cod trip limit must be reduced to the same limit. Similarly, the Handgear B trip limit must be adjusted proportionally (rounded up to the nearest 25 lb (11 kg)) to the DAS limit. This action sets the trip limit of GOM cod to 25 lb (11 kg) per DAS, up to 100 lb (45 kg) per trip for vessels fishing on a groundfish DAS, which is 97 percent lower than the default limit specified in the regulations for these vessels (800 lb (363 kg) per DAS). As a result, the Handgear A and Handgear B trip limit for GOM cod is 25 lb (11 kg) per trip. This action sets the possession and trip limit of GB cod at 250 lb (136 kg) per DAS, up to 500 lb (227 kg) per trip for vessels fishing on a groundfish DAS outside the Eastern U.S./Canada Area. As a result, the Handgear A trip limit for GB cod is also set at 250 lb (136 kg) per trip, and the Handgear B trip limit is 25 lb (11 kg) per trip.

Weekly quota monitoring reports for the common pool fishery can be found on our Web site at: http://www.greateratlantic.fisheries.noaa.gov/ro/fso/MultiMonReports.htm. We will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, vessel monitoring system catch reports, and other available information and, if necessary, we will make additional adjustments to common pool management measures.

As a reminder, Table 3 includes the common pool trimester Total Allowable Catches (TACs) for fishing year 2017. These trimester TACs are based on preliminary sector rosters. However, individual permit holders have until the end of the 2016 fishing year (April 30, 2017) to drop out of a sector and fish in the common pool fishery for the 2017 fishing year. Therefore, it is possible that the sector and common pool catch limits, including the trimester TACs, may change due to changes in sector rosters. If changes to sector rosters occur, updated catch limits and/or possession and trip limits will be announced as soon as possible in the 2017 fishing year to reflect the final sector rosters as of May 1, 2017. The regulations also require that any overages of the common pool quota be deducted from the respective quota in the following fishing year. If final fishing year 2016 catch information indicates the common pool exceeded its quota for any stock, we would reduce the common pool quota, as required, in a future action.

Additionally, we are working to publish a proposed rule for Framework Adjustment 56. If approved, Framework 56 would substantively increase the 2017 catch limit for witch flounder. In the Framework 56 proposed rule, we intend to propose a change to the common pool trip limit for witch flounder consistent with the recommended quota increase.

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

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be contrary to the public interest. The regulations at § 648.86(o) authorize the RA to adjust the Northeast multispecies possession and trip limits for common pool vessels in order to prevent the overharvest or underharvest of the pertinent common pool quotas. This action sets the initial common pool possession and trip limits on May 1, 2017, for the 2017 fishing year. The possession and trip limits implemented through this action help to ensure that the Northeast multispecies common pool fishery may achieve the optimum yield (OY) for the relevant stocks, while controlling catch to help prevent inseason closures or quota overages. Delay of this action would leave the common pool fishery with no possession or trip limits to control catch and would likely lead to early closure of a trimester and quota overages. Any overage of catch must be deducted from the Trimester 3 quota, which could substantially disrupt the trimester structure and intent to distribute the fishery across the entire fishing year. An overage reduction in Trimester 3 would further reduce fishing opportunities for common pool vessels and likely result in early closure of Trimester 3.

This would undermine management objectives of the Northeast Multispecies Fishery Management Plan and cause unnecessary negative economic impacts to the common pool fishery.

NMFS manages the groundfish fishery in the 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 Greenland turbot ITAC in the Aleutian Islands subarea of the BSAI is 106 metric tons (mt) as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017). The Regional Administrator has determined that the 2017 ITAC for Greenland turbot in the Aleutian Islands subarea of the BSAI is necessary to account for the incidental catch of this species in other anticipated groundfish fisheries for the 2017 fishing year. Therefore, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the directed fishing allowance for Greenland turbot in the Aleutian Islands subarea of the BSAI as zero mt. Consequently, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Greenland turbot in the Aleutian Islands subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as April 25, 2017.

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

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