Federal Register Vol. 83, No.119,

Pursuant to recent amendments to the Agricultural Marketing Agreement Act of 1946 (7 U.S.C. 1621 et seq.), as amended, the Agricultural Marketing Service (AMS) published a proposed rule regarding establishment of a new national mandatory bioengineered food disclosure standard in the Federal Register on May 4, 2018 (83 FR 19860). On that date, AMS also published a Regulatory Impact Analysis (RIA) describing potential economic impacts of the proposed rule, which included the Regulatory Flexibility Analysis. The RIA tentatively concludes that the proposed rule would not have a significant economic impact on a substantial number of small businesses. However, the Initial Regulatory Flexibility Analysis included in the NPRM used inconsistent language in 83 FR 19881 and 19884. This correction addresses that inconsistency. The summary of the RIA that accompanied 83 FR 19860 will also be revised. The revised RIA will be posted on www.regulations.gov under AMS-TM-17-0050.

In FR Doc. 2018-09389, published May 4, 2018 (83 FR 19860), make the following corrections:

1. On page 19881, in column 3, the final sentence of the Introduction paragraph in Section D—Initial Regulatory Flexibility Analysis is corrected to read as follows:

2. On page 19884, in column 1, the Summary paragraph in Section D—Initial Regulatory Flexibility Analysis is corrected to read as follows:

Executive Order 12866, Classification

This proposed rule has been determined to be non-significant and therefore was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Except where specified, all State and local laws and regulations that are in direct conflict with this rule will be preempted. Federal funds carry Federal requirements. No person is required to apply for funding under SFHGLP, but if they do apply and are selected for funding, they must comply with the requirements applicable to the Federal program funds. This proposed rule is not retroactive. It will not affect agreements entered into prior to the effective date of the rule. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 must be exhausted.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effect of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Agency generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million, or more, in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This document has been reviewed in accordance with 7 CFR part 1970, subpart G, “Environmental Program.” It is the determination of the Agency that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969, Public Law 91-190, neither an Environmental Assessment nor an Environmental Impact Statement is required.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) the undersigned has determined and certified by signature of this document that this rule change will not have a significant impact on a substantial number of small entities. This rule does not impose any significant new requirements on Agency applicants and borrowers, and the regulatory changes affect only Agency determination of program benefits for guarantees of loans made to individuals.

Executive Order 13175 imposes requirements on RHS in the development of regulatory policies that have tribal implications or preempt tribal laws. RHS has determined that the proposed rule does not have a substantial direct effect on one or more Indian Tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian Tribes. Thus, this proposed rule is not subject to the requirements of Executive Order 13175. If a tribe determines that this rule has implications of which RHS is not aware and would like to engage with RHS on this rule, please contact USDA's Native American Coordinator at (720) 544-2911 or [email protected].

These loans are subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. RHS conducts intergovernmental consultations for each SFHGLP loan in accordance with 2 CFR part 415, subpart C.

The program affected by this regulation is listed in the Catalog of Federal Domestic Assistance under Number 10.410, Very Low to Moderate Income Housing Loans (Section 502 Rural Housing Loans).

The information collection and record keeping requirements contained in this regulation have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The assigned OMB control number is 0575-0179.

The Agency is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

(1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410;

(2) Fax: (202) 690-7442; or

(3) Email: [email protected].

USDA is an equal opportunity provider, employer, and lender.

In order to encourage new construction purchase opportunities for rural applicants and increase lender utilization of SFHGLP Combination Construction to Permanent Loans in rural communities, the Agency proposes to revise the regulation pertaining to combination construction permanent loans. The proposed revisions will align the Agency's construction to permanent loans with industry standards. Lenders would be able to recapture interest accrued on a warehouse or business line of credit during the course of construction. An additional option is for lenders to escrow or set aside in reserves regularly scheduled fully amortized PITI payments for the construction period.

Currently, a lender is restricted to using the promissory note rate for the life of the loan, including during the construction phase. The restriction discourages lenders from making combination construction to permanent loans because lenders may have difficulty covering the higher costs of construction or warehouse lines of credit associated with the construction phases. If a lender uses a warehouse line of credit in order to finance the cost of construction, the lender is responsible for any cost associated with the use of those funds. The proposed changes to 7 CFR 3555.104 will allow for a modified interim construction interest rate that is no more than 200 basis points above the underlying promissory note rate. After the construction period, the rate will revert back to the promissory note rate, or a lower interest rate. This practice is common in the traditional construction to permanent loan industry, and allows lenders to cover higher construction phase line of credit costs. The Agency will publish the maximum allowable interim construction interest rate in RD Instruction 440.1, available in any Rural Development Office) or online at: http://www.rd.usda.gov/publications/regulations-guidelines. After construction is completed, lenders who used the interim construction interest rate must revert to the underlying promissory note rate or lower. The Agency also proposes to amend 7 CFR 3555.105(c) so that the cost of the interim construction interest rate may qualify as an eligible construction loan purpose.

Current regulations impede the ability to sell or transfer a loan to an investor on the secondary market at loan closing because lenders do not have a viable method to ensure that consistent, equal principal and interest payments are made to investors during the construction phase. Construction to permanent loans must be modified and re-amortized at the end of the construction period pursuant to 7 CFR 3555.105(d), and there is no authority for lenders to establish an escrow or reserve for payments of consistent, equal principal and interest payments to investors during the construction phase. To address this issue, the Agency proposes to amend 7 CFR 3555.105 by making post-construction modification or re-amortization optional, as well as allowing lenders to establish an escrow or reserve in an amount of up to 12 months of the fully amortized regularly scheduled PITI payments over the construction period. This provides lenders with the increased ability to place SFHGLP construction to permanent loans in the secondary market at loan closing. Please note that 7 CFR 3555.105(d)(4) already allows for the establishment of reserves for interest, taxes and insurance—the proposed amendment is for an additional principal reserve account in order to achieve a 30 year amortization of PITI payments.

The regulatory revisions will reduce the burden of construction financing on small and medium sized lenders, streamline the program, encourage program utilization, and provide the lender the ability to quickly transfer closed loans to program investors.

Lastly, the Agency proposes to correct 7 CFR 3555.104(a)(4) to clarify that if the interest rate increases between the issuance of a conditional commitment and the loan closing, the lender must submit a new request for new conditional commitment. Current language states that the lender must note the increased interest rate in the closing loan package—however this is not consistent with the terms of the conditional commitment or current practice. Lenders do submit new requests for conditional commitments in the event of an increase in interest rate before closing.

Therefore, chapter XXXV, title 7 of the Code of Federal Regulations is proposed to be amended as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0216; Product Identifier 1988-ANE-18-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We issued AD 88-12-10, Amendment 39-5910 (53 FR 19766, May 31, 1988), (“AD 88-12-10”), for certain Honeywell TPE331 turboprop engines. AD 88-12-10 requires reducing the life limit for certain second stage turbine rotors. AD 88-12-10 resulted from the failure of a second stage turbine rotor due to crack growth from a bore initiation site induced by low cycle fatigue. We issued AD 88-12-10 to prevent failure of the second stage turbine rotor, leading to uncontained failure of the second stage turbine rotor.

Since we issued AD 88-12-10, a TPE331-11U engine installed on an M7 Aerospace LP SA227 airplane experienced an uncontained tri-hub rotor separation during climb on April 7, 2015. One of the three fragments from the second stage turbine rotor assembly, part number 3102106-6, came to rest inside the fuselage wall of the twin-engine airplane. In addition, second stage turbine rotor assembly cracks in the bore were discovered by ECI after publication of AD 88-12-10. This evidence supports higher stresses than originally calculated and supports the inability of the normal rotor inspection method, fluorescent penetrant inspection, to detect small cracks in the bore. In addition, we are adding the TPE331-8 and -10N model engines to the applicability of this AD because the design and material of its second stage turbine rotor are similar to those in the TPE331-10, -10R, -10U, -10UA, -10UF, -10UG, -10UGR, -10UR, and -11U model engines.

We reviewed Honeywell Service Bulletin (SB) TPE331-72-A2319, Revision 0, dated April 25, 2018 and TPE331-72-A2310, Revision 0, dated January 26, 2018. These SBs describe procedures for replacement of the second stage turbine rotor assembly installed on TPE331-8, -10, -10N, -10R, -10U, -10UA, -10UF, -10UG, -10UGR, -10UR, and -11U model engines.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain certain requirements of AD 88-12-10. This proposed AD would require removing certain second stage turbine rotors from service at a reduced life limit.

This NPRM proposes to allow certain rotors more time in service before their removal than is allowed by Honeywell SBs TPE331-72-A2310, Revision 0, dated January 26, 2018, and TPE331-72-A2319, Revision 0, dated April 25, 2018. The FAA finds that allowing an additional 100 cycles in service before their removal provides a sufficient level of safety for applicable second stage turbine rotors that have been in service for 30 years after the publication of AD 88-12-10. In addition, the SB includes a calendar deadline of 5 years for removal of the applicable second stage turbine rotors that have exceeded their life-limit of 3,000 cycles. The FAA is instead proposing a requirement to remove applicable rotors at the next access and prohibiting the installation of applicable rotors. We find that the calendar deadline is inconsistent with our compliance requirements.

We estimate that this proposed AD affects 100 engines installed on airplanes of U.S. registry.

We estimate that 20 commercial engines and 80 general aviation engines will need this turbine rotor replacement to comply with this proposed AD:

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0546; Product Identifier 2017-NM-171-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2017-31, dated September 22, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0546.

Bombardier has issued the following service information:

• Service Bulletin 700-1A11-53-025, Revision 01, dated December 16, 2016;

• Service Bulletin 700-53-050, Revision 01, dated December 16, 2016;

• Service Bulletin 700-53-5009, Revision 01, dated December 16, 2016; and

• Service Bulletin 700-53-6008, Revision 01, dated December 16, 2016.

The service information describes actions to modify the aft belly fairing access panels by replacing the attachments. These documents are distinct since they apply to different airplane models in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this proposed AD affects 110 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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

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

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

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

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

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0556; Product Identifier 2018-NM-015-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0007R1, dated January 19, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318 series; Model A319 series; Model A320 series; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0556.

This NPRM does not propose to supersede AD 2016-17-03. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This proposed AD would require all ELAC units to be upgraded with new software, or replaced with upgraded units. Accomplishment of the proposed actions would then terminate all of the requirements of AD 2016-17-03.

Airbus has issued Service Bulletin A320-27-1263, Revision 00, dated April 28, 2017; and Service Bulletin A320-27-1264, Revision 00, dated April 28, 2017. The service information describes the upgrade or replacement of ELAC units. These documents are distinct because they apply to different airplane configurations.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type designs.

We estimate that this proposed AD affects 1,250 airplanes of U.S. registry.

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

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

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

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

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

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

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. Will not affect intrastate aviation in Alaska; and

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

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

I. Background

Title VIII of the Civil Rights Act of 1968, as amended (Fair Housing Act or Act),1 prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status, or national origin. On February 15, 2013, HUD published a final rule, entitled “Implementation of the Fair Housing Act's Discriminatory Effects Standard.” 2 The final rule codified HUD's interpretation that the Fair Housing Act creates liability for practices with an unjustified discriminatory effect, even if those practices were not motivated by discriminatory intent.3 Relying in part on case law under the Fair Housing Act and Title VII of the Civil Rights Act of 1964 (prohibiting employment discrimination), HUD's Disparate Impact Rule established a burden-shifting framework for analyzing claims of disparate impact under the Fair Housing Act.4 In 2016, HUD published a supplement to its responses to certain insurance industry comments made during the rulemaking.5 This ANPR uses the term “Disparate Impact Rule” to refer collectively to the 2013 final rule and 2016 supplement.

In 2015, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 6 (Inclusive Communities), the Supreme Court held that disparate impact claims are cognizable under the Fair Housing Act. The Court's opinion referenced HUD's Disparate Impact Rule, but the Court did not extensively review the rule or rely on it for its holding. Rather, the Court undertook its own analysis of the Fair Housing Act and discussed the standards for, and constitutional limitations on, disparate impact claims. The Supreme Court's ruling in Inclusive Communities recognized the availability of disparate impact claims under the Fair Housing Act independent of HUD's Disparate Impact Rule. HUD is reviewing the Disparate Impact Rule to determine what changes, if any, may be necessary in light of the Inclusive Communities decision. As it conducts this review, HUD welcomes public comment on other amendments to the Disparate Impact Rule that may be necessary or helpful.

The request for comments contained in this ANPR is also consistent with HUD's efforts to carry out the Administration's regulatory reform efforts. On May 15, 2017, HUD published a Federal Register document pursuant to Executive Orders 13771, “Reducing Regulation and Controlling Regulatory Costs,” and 13777, “Enforcing the Regulatory Reform Agenda,” inviting public comments to assist HUD in identifying existing regulations that may be outdated, ineffective, or excessively burdensome.7 In response, HUD received numerous comments asserting that the Disparate Impact Rule created uncertainty for commercial decisionmaking, as well as public policymaking, and that the rule is inconsistent with Inclusive Communities. On the other hand, HUD also received comments in support of the Disparate Impact Rule, asserting that it was cited in Inclusive Communities and is consistent with that decision. Additionally, in October 2017, the Secretary of the Treasury issued a report that explicitly recommended that HUD reconsider applications of the Disparate Impact Rule, especially in the context of the insurance industry.8

In light of Inclusive Communities, public comments submitted in response to HUD's May 15, 2017, Federal Register document, and the recommendation from the Department of the Treasury, HUD is seeking public comment on whether the Disparate Impact Rule should be revised for any considerations of law or policy raised in those fora or that are otherwise appropriate.

HUD seeks public comment on appropriate changes, if any, to the Disparate Impact Rule. While the following list is not exhaustive, HUD is particularly interested in comments on the following questions:

1. Does the Disparate Impact Rule's burden of proof standard for each of the three steps of its burden-shifting framework clearly assign burdens of production and burdens of persuasion, and are such burdens appropriately assigned?

2. Are the second and third steps of the Disparate Impact Rule's burden-shifting framework sufficient to ensure that only challenged practices that are artificial, arbitrary, and unnecessary barriers result in disparate impact liability?

3. Does the Disparate Impacts Rule's definition of “discriminatory effect” in 24 CFR 100.500(a) in conjunction with the burden of proof for stating a prima facie case in 24 CFR 100.500(c) strike the proper balance in encouraging legal action for legitimate disparate impact cases while avoiding unmeritorious claims?

4. Should the Disparate Impact Rule be amended to clarify the causality standard for stating a prima facie case under Inclusive Communities and other Supreme Court rulings?

5. Should the Disparate Impact Rule provide defenses or safe harbors to claims of disparate impact liability (such as, for example, when another federal statute substantially limits a defendant's discretion or another federal statute requires adherence to state statutes)?

6. Are there revisions to the Disparate Impact Rule that could add to the clarity, reduce uncertainty, decrease regulatory burden, or otherwise assist the regulated entities and other members of the public in determining what is lawful?

This ANPR is exclusively concerned with nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), it is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321-4347).

Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This ANPR was reviewed by OMB and determined to likely result in a “significant regulatory action,” as defined in section 3(f) of Executive Order 12866.

On May 21, 2018, OSHA published a NPRM titled “Cranes and Derricks in Construction: Operator Qualification” (83 FR 23534). In the NPRM, OSHA proposed to amend 29 CFR part 1926, subpart CC, to revise sections that address crane operator training, certification/licensing, and competency. The purpose of these amendments are to: require comprehensive training of operators; remove certification by capacity from certification requirements; clarify and permanently extend the employer duty to evaluate potential operators for their ability to safely operate equipment covered by subpart CC; and require documentation of that evaluation.

The public comment period for this NPRM was to conclude on June 20, 2018, 30 days after publication of the NPRM. However, OSHA received requests from stakeholders for an extension of the public comment period (OSHA-2007-0066-0683 and -0693). These requests state that, given the complexity and significance of this NPRM, more time for submitting comments was necessary to gather information from members of the organizations and develop meaningful comments.

OSHA agrees to an extension and believes that a 15 day extension of the public comment period is a sufficient amount of time to address these concerns in light of the short period of time remaining before the deadline for crane operator certification. Therefore, the public comment period will now conclude July 5, 2018. Comments can be submitted by following the procedures listed under ADDRESSES section of this notice.

The RESTORE Act (33 U.S.C. 1321(t) and note) makes funds available for the ecological and economic restoration of the Gulf Coast Region, and certain programs with respect to the Gulf of Mexico, through a trust fund in the Treasury of the United States known as the Gulf Coast Restoration Trust Fund (trust fund). The trust fund holds 80 percent of the administrative and civil penalties paid under the Federal Water Pollution Control Act after July 6, 2012 in connection with the Deepwater Horizon Oil Spill.

Treasury administers two of the five components established by the Act, the Direct Component and Centers of Excellence Research Grants Program. The Act also established an independent Federal entity, the Gulf Coast Ecosystem Restoration Council (Council), to administer two components of the Act, the Comprehensive Plan Component and the Spill Impact Component. The National Oceanic and Atmospheric Administration (NOAA) administers one component, the NOAA RESTORE Act Science Program. This NPRM only affects grants under the Direct Component, Comprehensive Plan Component, and Spill Impact Component of the Act, which are collectively referred to throughout the NPRM as the three “components.”

On December 14, 2015, Treasury promulgated a final rule on the RESTORE Act, 80 FR 77239, which became effective on February 12, 2016. The final rule contains two relevant limitations on the amount of grant funds that may be used for administrative costs.

First, the final rule subjects the grants to government-wide cost principles. Treasury's final rule defines “administrative costs” as “indirect costs for administration” and provides that such “[c]osts must comply with administrative requirements and cost principles in applicable federal laws and policies on grants.” 31 CFR 34.2, 34.200(a)(1). Treasury's final rule excludes “indirect costs that are identified specifically with, or readily assignable to, facilities” from its definition of “administrative costs.”

Indirect cost principles are contained in the Office of Management and Budget's “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards” in 2 CFR part 200, which Treasury has adopted. 2 CFR 1000.10. Indirect costs are defined in 2 CFR 200.56 and are allowable subject to Subpart E of 2 CFR part 200 and Appendix VII.

Under Subpart E, a grant recipient's negotiated indirect cost rate agreement (NICRA) with its cognizant agency determines the allowable indirect cost rate for the recipient's grants, taking into account the unique circumstances and cost structure of the recipient. The NICRA, or a de minimis rate if elected, must be used across all of the recipient's federal grants.1 2 CFR 200.414(c)(1). In accordance with the 2 CFR part 200 Uniform Guidance, Appendix VII—State and Local Government and Indian Tribe Indirect Cost Proposals, these allowable indirect costs are computed on each individual Federal award.

The second limitation for RESTORE awards on the amount of grant funds that can be used for administrative costs under the three components is a three percent administrative cost cap. The Act provides that “[o]f the amounts received by a Gulf Coast State . . ., not more than 3 percent may be used for administrative costs . . . .” 33 U.S.C. 1321(t)(1)(B)(iii)(I). The Act does not specify the method by which this three percent administrative cost cap is to be applied. Treasury's final rule, however, provides that the three percent administrative cost cap is to be applied on a grant-by-grant basis: “The three percent limit is applied to the total amount of funds received by a recipient under each grant.” 31 CFR 34.204(a). In other words, under the current regulation, the administrative costs associated with each particular grant may not exceed three percent of the total amount of that grant.

Thus, under the current regulation, allowable administrative costs for a particular grant, (i.e., the indirect costs for administration) are limited to three percent of total funds received under that particular grant even in cases where a recipient's NICRA (or its de minimis rate) allows more.

For example, if a recipient with a NICRA with a direct labor base were to contract out the labor on a project, the indirect costs under its NICRA may be much lower than three percent of the total amount of the grant. In contrast, if the bulk of the labor is performed in-house, the indirect costs will typically be much greater than three percent of the total amount of the grant.

To address this issue, Treasury proposes to provide a recipient the option to apply the three percent administrative cost cap, within each component, on either a grant-by-grant basis or on an aggregate basis. More specifically, this proposed revision provides that the three percent administrative cost cap may be applied by component to a Gulf Coast State, coastal political subdivision, or coastal zone parish's trust fund allocation, i.e., an aggregate of (1) all grants received by it under one component, and (2) the amount in the trust fund for the same component that is allocated to, but not yet received by it. As used in this NPRM, the phrase “allocated to, but not yet received under that component by a Gulf Coast State, coastal political subdivision, or coastal zone parish” refers only to funds presently in the trust fund and not to future deposits into the trust fund,2 and includes the following amounts with respect to each component: (1) With respect to the Direct Component, amounts made available in equal shares for the Gulf Coast States in accordance with 31 CFR 34.302; (2) with respect to the Comprehensive Plan Component, the estimated aggregate cost of all projects included in all approved Funded Priorities Lists; and (3) with respect to the Spill Impact Component, amounts allocated to the Gulf Coast States in accordance with 31 CFR 34.502 and 40 CFR 1800.500.

The Treasury regulations allocate precise sums to specific entities based on criteria in the Act, which allows the flexibility to administer the administrative cost cap on an aggregate basis. Permitting recipients to allocate administrative costs by component from their “pool” in the trust fund toward the indirect costs in their grants will enable them to recover the maximum amount of indirect costs allowed under the Act and to more efficiently and effectively oversee and manage projects and programs. Under this methodology, if a recipient's allowable indirect costs for administration for one grant are less than three percent of the total amount of that grant, the difference would be available to cover allowable indirect costs for administration exceeding three percent on other grants.

The two methods for applying the three percent administrative cost cap are illustrated by the examples below.

A recipient receives a Direct Component planning assistance grant totaling $216,494. The grant consists of $210,000 for direct costs and, under the three percent cap, $6,494 for indirect costs.

As in the first example, a recipient with a NICRA receives a Direct Component planning assistance grant which includes $210,000 for direct costs. Under the aggregate method, its grant may also include $56,000 for indirect costs under its NICRA, for a grant totaling $266,000. The recipient has a total administrative cost pool of $2,600,000, based on three percent of its gross trust fund allocation for the Direct Component. The recipient has received indirect costs for administration totaling $112,000 for two prior grants, leaving a net amount of $2,488,000 available in its administrative cost pool. Therefore, the recipient may use $56,000 for indirect costs in this grant award because the funds are available in the pool.

At least annually, Treasury will post publicly the amounts available in the administrative cost “pool” by component, simultaneously with its updates to the trust fund allocations. At no time, however, may the total amount of administrative costs of a Gulf Coast State, coastal political subdivision, or coastal zone parish exceed three percent of the aggregate of (1) all grants received by it under one of the three components, and (2) the amount in the trust fund for the same component that is allocated to, but not yet received by such Gulf Coast State, coastal political subdivision, or coastal zone parish. Also, at no time would a recipient be able to recover more in indirect costs under an individual award than it would receive under its NICRA or its de minimis rate.

Treasury invites public comments on all aspects of this proposed amendment for 30 days, and anticipates publishing a final rule on this revision soon after the 30 day public comment period. In particular, Treasury solicits comments from eligible entities on the following: (1) Is the aggregate method an attractive option and if so, describe the benefits; (2) How would you manage and track administrative indirect costs under each method; (3) Is there an additional burden associated with managing the administrative indirect cost cap using the aggregate method?

For the reasons described above, Treasury proposes amending the method by which the statutory three percent administrative cost cap is applied under 31 CFR 34.204(a). Conceptually, the proposed revision allows each recipient to establish a “pool” of funds for administrative costs under each component if it so chooses. Within each component, a recipient may budget these funds among its grants, consistent with the definition of administrative costs at 31 CFR 34.2 and Subpart E. Treasury believes that this NPRM will help ensure that recipients have the necessary funding to efficiently and effectively oversee and manage projects and programs while ensuring compliance with the statutory three percent administrative cost cap and a recipient's NICRA or de minimis rate under Subpart E.

To clarify that recipients are no longer required to apply the three percent administrative cost cap on a grant-by-grant basis, Treasury proposes deleting “in a grant” from the first sentence of § 34.204(a). Treasury proposes replacing the second sentence in existing § 34.204(a), which currently requires the three percent administrative cost cap to be applied on a grant-by-grant basis, with language permitting the three percent administrative cost cap to be applied on either a grant-by-grant basis or on an aggregated basis within each component. For the latter method, this NPRM states that amounts used for administrative costs may not at any time exceed three percent of the aggregate of: (1) The amounts received under a component by a recipient, beginning with the first grant through the most recent grant, and (2) the amounts in the trust fund that are allocated to, but not yet received under such component, by a Gulf Coast State, coastal political subdivision, or coastal zone parish under § 34.103, consistent with the definition of administrative costs in § 34.2. This proposed revision helps ensure that the recipient will not exceed the statutory three percent administrative cost cap before the termination of the trust fund. Please note the NPRM does not amend the definition of administrative costs in § 34.2.

Treasury also proposes adding “recipient and” before “subrecipient” in the last sentence of § 34.204(a) to clarify that Federal grant law and policies apply to recipient costs as well as to subrecipient costs.

Treasury will conduct a retrospective analysis of this proposed revision no later than seven years after the date it becomes effective. This review will consider whether the revision ensures that the Gulf Coast states, coastal political subdivisions, and coastal zone parishes have the necessary funding to efficiently and effectively oversee and manage projects and programs for ecological and economic restoration of the Gulf Coast Region while ensuring compliance with the statutory three percent administrative cost cap, and whether it helps them to administer RESTORE grant projects effectively and efficiently.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally requires agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

Six of the 20 Louisiana parishes and six of the 23 Florida counties eligible to receive grants under the RESTORE Act have fewer than 50,000 residents. (2010 U.S. Census) and thus qualify as small governmental jurisdictions under the Regulatory Flexibility Act. (5 U.S.C. 601(5)). Treasury anticipates that this proposed revision will have no significant economic impact on these small entities because all recipients have the option to continue applying the three percent administrative cost cap on a grant-by-grant basis. Accordingly, Treasury certifies that the amendment to this regulation will not have a significant impact upon a substantial number of small entities, and no regulatory flexibility analysis is required.

The amendment to the regulation is a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563.

The affected program for Treasury is listed in the Catalog of Federal Domestic Assistance Program under 21.015, Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States. The affected programs for the Council are listed under 87.051, and 87.052, for its Comprehensive Plan and Spill Impact Components, respectively.

For the reasons set forth herein, the Department of the Treasury proposes to amend 31 CFR part 34 to read as follows:

Invitation to Comment: We invite you to submit comments regarding this document. We urge you to identify clearly the specific issue that each comment addresses to ensure your comments are accurately represented in the development of the final requirements.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 13771 and their overall requirement of reducing regulatory burden that might result from this proposed requirement. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about this proposed requirement by accessing Regulations.gov. You may also inspect the comments in person in Room 5145, 550 12th Street SW, Washington, DC, between 8:30 a.m. and 4:00 p.m., Eastern Time, Monday through Friday of each week except Federal holidays. Please contact the persons listed under FOR FURTHER INFORMATION CONTACT.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this proposed requirement. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the persons listed under FOR FURTHER INFORMATION CONTACT.

Purpose of Program: The purpose of the Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities program is to promote academic achievement and to improve results for children with disabilities by providing technical assistance (TA), supporting model demonstration projects, disseminating useful information, and implementing activities that are supported by scientifically based research.

The Individuals with Disabilities Education Act (IDEA) requires that the Secretary reserve $12,832,000 of IDEA Part D funds each year to address the needs of children with deaf-blindness (see section 682(d)(1)(A) of IDEA, 20 U.S.C. 1482(d)). The Office of Special Education Programs (OSEP) supports children who are deaf-blind and their families in part by funding the State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind and National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind (TA&D-DB) competition (CFDA number 84.326T). Authorized activities include providing TA on evidence-based practices to professionals and others involved in providing services that promote academic achievement and improve results for children who are deaf-blind. For purposes of this document, the term “children who are deaf-blind” refers to infants, toddlers, children, youth, and young adults (birth through 21) who are deaf-blind.

To ensure that children who are deaf-blind and their families receive appropriate supports to address their specific needs, we propose a requirement that would limit the recovery of indirect costs by State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind (CFDA number 84.326T) grantees under this grant competition. The National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind (CFDA number 84.326T) (National Center) would not be subject to this limitation on recovery of indirect costs. The National Center's burden for indirect costs is different from the burden for State Technical Assistance Projects because the National Center does not provide TA directly to professionals who serve deaf-blind children.

The purpose of this requirement is to ensure that more Federal funding flows through to meet the needs of children who are deaf-blind. We are proposing this requirement based on 2 CFR 200.414(c)(1), which allows a Federal awarding agency to use an indirect cost rate different from the negotiated rate when required by Federal statute or regulation. Federal discretionary grantees have historically been reimbursed for indirect costs at the rate that the grantee has negotiated with its cognizant agency, and we believe that use of the negotiated rate is appropriate for most grants in most circumstances. However, grantees under the State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind program (CFDA number 84.326T), provide TA to professionals and others who provide direct services to children who are deaf-blind. Therefore, we believe most of these grants do not carry the same burden of overhead or administrative costs as do many other federally funded projects.

We analyzed historical grantee data for grants previously awarded under CFDA number 84.326T and found a wide range of indirect cost rate agreements in place. Over the past five years, indirect cost rate agreements for grantees under CFDA number 84.326T have ranged from 0 percent to 65 percent, with a median of 9 percent for 49 grantees examined. However, our analysis indicates that 28 grantees—approximately 60 percent—currently funded under this program operate grants with an indirect cost rate of 10 percent or less. Because a majority of current grantees are able to run programs using 90 percent or more of their grant funds to provide direct services, we believe it is reasonable to set a cap of 10 percent on the indirect costs for future grantees.

A grantee may recover the lesser of (a) its actual indirect costs as determined by the grantee's negotiated indirect cost rate agreement and (b) 10 percent of its modified total direct costs. If a grantee's allocable indirect costs exceed 10 percent of its modified total direct costs, the grantee may not recoup the excess by shifting the cost to other grants or contracts with the U.S. Government, unless specifically authorized by legislation. The grantee must use non-Federal revenue sources to pay for such unrecovered costs.

The Department seeks additional comment on this question: If the Department required grantees to justify all indirect costs that exceed 10 percent, what circumstances could justify higher indirect costs? The Department is seeking comment on the circumstances that grantees may encounter that could result in indirect costs that exceed 10 percent.

We will announce the final requirement for the State Technical Assistance Projects to Improve Services and Results for Children Who Are Deaf-Blind and National Technical Assistance and Dissemination Center for Children Who Are Deaf-Blind (TA&D-DB) competition (CFDA Number: 84.326T) in a document in the Federal Register. We will determine the final requirement after considering public comments on the proposed requirement and other information available to the Department. This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

This document does not solicit applications. In any year in which we choose to use this proposed requirement, we invite applications through a notice in the Federal Register.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For Fiscal Year 2018, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. However, Executive Order 13771 does not apply to “transfer rules” that cause only income transfers between taxpayers and program beneficiaries, such as those regarding discretionary grant programs. The proposed requirement would be utilized in connection with a discretionary grant program and, therefore, Executive Order 13771 is not applicable.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this proposed requirement based on a reasoned determination that the benefits would justify the costs. In choosing among alternative regulatory approaches, we selected this approach to maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. This regulatory action may result in a subset of grantees under this program recovering less funds for indirect costs than they would otherwise have recovered prior to this proposed new maximum indirect cost rate, which could impact their operations. Further, it could result in particular entities not seeking funding under this program because of an inability to operate under this proposed new maximum indirect cost rate. However, we believe that the benefits to program beneficiaries of utilizing a higher percentage of program funds for direct services outweigh these costs.

This document does not contain Paperwork Reduction Act requirements. The Technical Assistance and Dissemination to Improve Services and Results for Children with Disabilities program has been approved by OMB to collect data under OMB 1820-0028. The proposed requirement would not impact the approved and active data collection.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program.

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

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

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

Table of Contents I. What action is EPA proposing? II. Background A. 2002 NSR Reform Rules B. PM2.5 NAAQS 1. Implementation of NSR for the PM2.5 NAAQS and Grandfathering Provisions 2. PM2.5 Condensables Correction Rule 3. PM2.5 Subpart 4 Litigation 4. PM2.5 PSD-Increments-SILs-SMC Rule C. 1997 8-Hour Ozone NAAQS Phase 2 Rule D. Greenhouse Gases and Plant-wide Applicability Limits E. Equipment Replacement Provisions III. Analysis of State's Submittal A. Tennessee's March 7, 2017, NNSR and PSD Submittals 1. Definition of “Baseline Actual Emissions” 2. Fugitive Emissions Rule 3. GHG Tailoring Rule B. Tennessee's April 17, 2017, NNSR Changes C. Tennessee's April 17, 2017, Minor Source Permit Changes IV. Incorporation by Reference V. Proposed Action VI. Statutory and Executive Order Reviews I. What action is EPA proposing?

EPA is proposing to approve changes to the Knox County portion of the Tennessee SIP regarding PSD and NNSR permitting, as well as updates to minor NSR, submitted by TDEC on behalf of Knox County's Air Quality Management Division. On March 7, 2017, Tennessee submitted two SIP revisions updating Knox County's Air Quality Management Regulations, Section 41.0 entitled “Regulations for the Review of New Sources,” and Section 45.0 entitled “Prevention of Significant Deterioration.” On April 17, 2017, Tennessee submitted two additional SIP revisions, including additional changes to Section 41, and updates to Section 25.0 entitled “Permits.” These SIP revisions are meant to address changes to the federal NSR regulations, as promulgated by EPA in various rules, and described below. EPA is proposing to approve the aforementioned SIP submittals in their entirety. Additional detail on the analysis of these SIP submittals and our reasoning for proposing to approve them is presented below.

On December 31, 2002, EPA published final rule revisions to title 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the CAA's PSD and NNSR programs. See 67 FR 80186 (hereinafter referred to as the 2002 NSR Rule). The revisions included five changes to the major NSR program that would reduce burden, maximize operating flexibility, improve environmental quality, provide additional certainty, and promote administrative efficiency. These elements included baseline actual emissions, actual-to-projected-actual emissions methodology, plant-wide applicability limits (PALs), Clean Units, and pollution control projects (PCPs). The final rule also codified a longstanding policy regarding the calculation of baseline emissions for electric utility steam generating units and the definition of “regulated NSR pollutant” that clarifies which pollutants are regulated under the Act for purposes of major NSR.

Following publication of the 2002 NSR Rule, EPA received numerous petitions requesting reconsideration of several aspects of the final rule, along with portions of EPA's 1980 NSR Rules. See 45 FR 52676 (August 7, 1980). On July 30, 2003, EPA granted petitions for reconsideration of six issues presented by the petitioners and opened a new comment period for the public.1 As a result of the reconsideration, on November 7, 2003 (68 FR 63021), EPA published the NSR Reform Reconsideration Rule. In the reconsideration rule, EPA made a final determination not to change any of the six issues opened for reconsideration, but did make two clarifications to the rule. These two clarifications included: (1) Adding the definition of “replacement unit” to indicate that it is considered an existing unit in terms of major NSR applicability, and (2) specifying that the PAL baseline calculation procedures for newly constructed units do not apply to modified units. The 2002 NSR Rule and the NSR Reform Reconsideration Rule are hereinafter collectively referred to as the “2002 NSR Reform Rules.”

The 2002 NSR Reform Rules were challenged in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), and the court issued a decision on the challenges on June 24, 2005. See New York v. United States, 413 F.3d 3 (D.C. Cir. 2005). In summary, the D.C. Circuit vacated portions of EPA's NSR rules pertaining to Clean Units and PCPs, remanded a portion of the rules regarding recordkeeping and the term “reasonable possibility” found in 40 CFR 52.21(r)(6), 40 CFR 51.166(r)(6), and 40 CFR 51.165(a)(6) to EPA, and either upheld or did not comment on the other provisions included as part of the 2002 NSR Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the portions that were vacated by the D.C. Circuit.

Meanwhile, EPA continued to move forward with its evaluation of the portion of its NSR Reform Rules that were remanded by the D.C. Circuit. On March 8, 2007 (72 FR 10445), EPA responded to the Court's remand regarding the recordkeeping provisions by proposing two alternative options to clarify what constitutes “reasonable possibility” and when the “reasonable possibility” recordkeeping requirements apply. The “reasonable possibility” standard identifies the circumstances under which a major stationary source must keep records for modifications that do not trigger major NSR. EPA later finalized these changes on December 21, 2007 (72 FR 72607).

Separately from the petitions received that led to the 2002 NSR Reconsideration Rule, EPA received another petition for reconsideration on July 11, 2003. Specifically, the petitioner requested EPA to reconsider the inclusion of “fugitive emissions” when assessing whether a proposed physical or operational change qualified as a “major modification.” On November 13, 2007, EPA granted the petition for reconsideration, and on December 19, 2008, finalized the revision of the language to clarify which types of sources were required to include “fugitive emissions” in their calculations. See 73 FR 77882 (hereinafter referred to as the Fugitive Emissions Rule).

Finally, on February 17, 2009, EPA received one additional petition challenging the Fugitive Emissions Rule. Due to this petition, and after several stays,2 EPA established an interim stay on March 30, 2011 (76 FR 17548), in which most of the Fugitive Emissions Rule language was stayed indefinitely. With the March 30, 2011, stay, EPA specified which portions of 40 CFR 51.165, 40 CFR 51.166, and 40 CFR 52.21 were stayed indefinitely, which were reinstated, and which were revised, in order to revert the federal rules to regulatory language that existed prior to the Fugitive Emissions Rule.

In summary, after several court decisions and public petitions, the federal major NSR program (found in 40 CFR 51.165, 51.166, and 52.21) no longer includes the provisions related to Clean Units or PCPs that were part of the 2002 NSR reform rules. Additionally, an indefinite stay has been placed on the language related to the Fugitive Emissions Rule. Knox County is adopting all of the surviving provisions from the 2002 NSR Reform Rules, and is not adopting all those provisions that were either vacated or stayed indefinitely. More details on Knox County's adoption of the 2002 NSR Reform Rules and our analysis of its submittals can be found in section III below.

On May 16, 2008 (73 FR 28321), EPA published the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” Final Rule (hereinafter referred to as the NSR PM2.5 Rule). The 2008 NSR PM2.5 Rule revised the NSR program requirements to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas. As indicated in the 2008 NSR PM2.5 Rule, major stationary sources seeking permits must begin directly satisfying the PM2.5 requirements, as of the effective date of the rule, rather than relying on PM10 as a surrogate, with two exceptions. The first exception was a “grandfathering” provision in the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering provision applied to sources that had applied for, but had not yet received, a final and effective PSD permit before the July 15, 2008, effective date of the May 2008 final rule. The second exception was that states with SIP-approved PSD programs could continue to implement a policy in which PM10 served as a surrogate for PM2.5 for up to three years (until May 2011) or until the individual revised state PSD programs for PM2.5 are approved by EPA, whichever came first.3

On February 11, 2010 (75 FR 6827), EPA proposed to repeal the grandfathering provision for PM2.5 contained in the federal PSD program at 40 CFR 52.21(i)(1)(xi) and to end early the PM10 Surrogate Policy applicable in states that have a SIP-approved PSD program. In support of this proposal, EPA explained that the PM2.5 implementation issues that led to the adoption of the PM10 Surrogate Policy in 1997 had been largely resolved to a degree sufficient for sources and permitting authorities to conduct meaningful permit-related PM2.5 analyses. On May 18, 2011 (76 FR 28646), EPA took final action to repeal the PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). This final action ended the use of the 1997 PM10 Surrogate Policy for PSD permits under the federal PSD program at 40 CFR 52.21. In effect, any PSD permit applicant previously covered by the grandfathering provision (for sources that completed and submitted a permit application before July 15, 2008) 4 that did not have a final and effective PSD permit before the effective date of the repeal will not be able to rely on the 1997 PM10 Surrogate Policy to satisfy the PSD requirements for PM2.5 unless the application includes a valid surrogacy demonstration.

The NSR PM2.5 Rule also established the following NSR requirements to implement the PM2.5 NAAQS: (1) Required NSR permits to address directly emitted PM2.5 and precursor pollutants; (2) established significant emission rates for direct PM2.5 and precursor pollutants (including sulfur dioxide (SO2) and oxides of nitrogen (NOX)); (3) established PM2.5 emission offsets; and (4) required states to account for gases that condense to form particles (“condensables”) in PM2.5 and PM10 emission limits in PSD or NNSR permits. In addition, the NSR PM2.5 Rule gives states the option of allowing interpollutant trading for the purpose of precursor offsets under the PM2.5 NNSR program.5 Knox County did not adopt this optional interpollutant trading in its March 7, 2017, nor April 17, 2017, SIP revisions. Knox County is thereby being consistent with the State, since Tennessee does not currently have this interpollutant trading approved into its SIP.

Among the changes included in the 2008 NSR PM2.5 Rule mentioned above, the EPA revised the definition of “regulated NSR pollutant” for PSD to add a paragraph providing that “particulate matter (PM) emissions, PM2.5 emissions and PM10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures” and that on or after January 1, 2011, “such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM, PM2.5 and PM10 in permits.” See 73 FR 28321 at 28348 (May 16, 2008). A similar paragraph added to the NNSR rule did not include “particulate matter (PM) emissions.” See 40 CFR 51.165(a)(1)(xxxvii)(D).

On October 25, 2012 (77 FR 65107), EPA took final action to amend the definition, promulgated in the 2008 NSR PM2.5 Rule, of “regulated NSR pollutant” contained in the PM condensable provision at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and appendix S to 40 CFR part 51 (hereinafter referred to as the PM2.5 Condensables Correction Rule). The PM2.5 Condensables Correction Rule removed the inadvertent requirement in the 2008 NSR PM2.5 Rule that the measurement of condensable particulate matter be included as part of the measurement and regulation of “particulate matter emissions” under the PSD program. The term “particulate matter emissions” includes only filterable particles that are larger than PM2.5 and larger than PM10.

On January 4, 2013, the D.C. Circuit issued a judgment 6 that remanded EPA's April 25, 2007 7 and May 16, 2008 PM2.5 implementation rules implementing the 1997 PM2.5 NAAQS. See Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The Court found that because the statutory definition of PM10 (see section 302(t) of the CAA) included particulate matter with an aerodynamic diameter less than or equal to 10 micrometers, it necessarily includes PM2.5. EPA had developed the 2007 and 2008 Rules (or NSR PM2.5 Rule) consistent with the general nonattainment area (NAA) requirements of subpart 1 of Part D, title I, of the CAA. Relative to subpart 1, subpart 4 of Part D, title I includes additional provisions that apply to PM10 NAAs and is more specific about what states must do to bring areas into attainment. In particular, subpart 4 includes section 189(e) of the CAA, which requires the control of major stationary sources of PM10 precursors (and hence under the court decision, PM2.5 precursors) “except where the Administrator determines that such sources do not contribute significantly to PM10 levels which exceed the standard in the area.” The court ordered EPA to re-promulgate the 1997 PM2.5 implementation rules pursuant to subpart 4, rather than subpart 1.

On June 2, 2014 (79 FR 31566), EPA published a final rule 8 which, in part, set a December 31, 2014, deadline for states to make any remaining required attainment-related and NNSR SIP submissions, pursuant to and considering the application of subpart 4. Requirements under subpart 4 for a moderate NAA are generally comparable to subpart 1, including: (1) CAA section 189(a)(1)(A) (NNSR permit program); (2) section 189(a)(1)(B) (attainment demonstration or demonstration that attainment by the applicable attainment date is impracticable); (3) section 189(a)(1)(C) (reasonably available control measures (RACM) and reasonably available control technology (RACT)); and (4) section 189(c) (reasonable further progress and quantitative milestones). The additional requirements pursuant to subpart 4 as opposed to subpart 1 correspond to section 189(e) (precursor requirements for major stationary sources). Further additional SIP planning requirements are introduced by subpart 4 in the case that a moderate NAA is reclassified to a serious NAA, or in the event that the moderate NAA needs additional time to attain the NAAQS. The additional requirements under subpart 4 are not applicable for the purposes of CAA section 107(d)(3)(E) in any area that has submitted a complete redesignation request prior to the due date for those requirements. As discussed below, the Knoxville Area 9 has since been redesignated to attainment for the PM2.5 NAAQS.

On October 20, 2010 (75 FR 64863), EPA published a final rulemaking entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter less than 2.5 Micrometers (PM2.5),” amending the requirements for PM2.5 under the federal PSD program (also referred to as the PM2.5 PSD-Increments-SILs-SMC Rule). The October 20, 2010, final rulemaking established the following: (1) PM2.5 increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS; (2) PM2.5 Significant Impact Levels (SILs) for PSD and NNSR; and (3) Significant Monitoring Concentration (SMC) for PSD purposes.

Subsequently, in response to a challenge to the PM2.5 SILs and SMC provisions of the PM2.5 PSD-Increment-SILs-SMC Rule, the D.C. Circuit vacated and remanded to EPA the portions of the rule addressing PM2.5 SILs, except for the PM2.5 SILs promulgated in EPA's NNSR rules at 40 CFR 51.165(b)(2). See Sierra Club v. EPA, 705 F.3d 458, 469 (D.C. Cir. 2013). The D.C. Circuit also vacated the parts of the rule establishing a PM2.5 SMC for PSD purposes. Id. EPA removed these vacated provisions in a December 9, 2013 (78 FR 73698), final rule.

The PM2.5 SILs promulgated in EPA's NNSR regulations at 40 CFR 51.165(b)(2) were not vacated by the D.C. Circuit because unlike the SILs promulgated in the PSD regulations (40 CFR 51.166, 52.21), the SILs promulgated in the NNSR regulations at 40 CFR 51.165(b)(2) do not serve to exempt a source from conducting a cumulative air quality analysis. Rather, the SILs promulgated at 40 CFR 51.165(b)(2) establish levels at which a proposed new major source or major modification located in an area designated as attainment or unclassifiable for any NAAQS would be considered to cause or contribute to a violation of a NAAQS in any area. For this reason, the D.C. Circuit left the PM2.5 SILs at 40 CFR 51.165(b)(2) in place.

Consistent with the D.C. Circuit decision, and EPA's removal, Knox County did not adopt these vacated portions of the PM2.5 PSD-Increment-SILs-SMC Rule, regarding the PM2.5 SILs and SMC provisions for PSD permitting. Knox County did adopt the remaining portions of the PM2.5 PSD-Increment-SILs-SMC Rule, which includes the PM2.5 PSD Increments and the NNSR portion of the PM2.5 SILs provisions.

On November 29, 2005 (70 FR 71612), EPA published a final rule entitled “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule To Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline” (hereinafter referred to as the Phase 2 Rule). The Phase 2 Rule addressed control and planning requirements as they applied to areas designated nonattainment for the 1997 8-hour ozone NAAQS 10 such as reasonably available control technology, reasonably available control measures, reasonable further progress, modeling and attainment demonstrations, NSR, and the impact to reformulated gasoline for the 1997 8-hour ozone NAAQS transition. The NSR permitting requirements established in the rule included the following provisions: (1) Recognized NOX as an ozone precursor for PSD purposes; (2) established major stationary thresholds (marginal, moderate, serious, severe, and extreme NAA classifications) in the NNSR rules; (3) established significant emission rates for the 8-hour ozone, PM10 and carbon monoxide NAAQS; and (4) revised the criteria for crediting emission reductions credits from operation shutdowns and curtailments as offsets, and changes to offset ratios for marginal, moderate, serious, severe, and extreme ozone NAA.

The March 7, 2017, SIP submittals requesting adoption of Knox County regulations 41 and 45 adopt all the NSR provisions of the Phase 2 Rule as they appear in the federal NNSR and PSD rules, effectively recognizing NOX as a precursor to ozone as well as establishing major stationary thresholds, significant emission rates, and offset ratios. The adoption of these provisions is consistent with the federal NSR rules as well as TDEC's rules.

On January 2, 2011, emissions of greenhouse gases (GHGs) were, for the first time, covered by the PSD and title V operating permit programs.11 To establish a process for phasing in the permitting requirements for stationary sources of GHGs under the CAA PSD and title V programs, on June 3, 2010 (75 FR 31514), the EPA published a final rule entitled “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (hereinafter referred to as the GHG Tailoring Rule). In Step 1 of the GHG Tailoring Rule, which began on January 2, 2011, the EPA limited application of PSD and title V requirements to sources of GHG emissions only if they were subject to PSD or title V “anyway” due to their emissions of pollutants other than GHGs. These sources are referred to as “anyway sources.”

In Step 2 of the GHG Tailoring Rule, which applied as of July 1, 2011, the PSD and title V permitting requirements applied to some sources that were classified as major sources based solely on their GHG emissions or potential to emit GHGs. Step 2 also applied PSD permitting requirements to modifications of otherwise major sources that would increase only GHG emissions above the level in the EPA regulations. EPA generally described the sources covered by PSD during Step 2 of the GHG Tailoring Rule as “Step 2 sources” or “GHG-only sources.”

Subsequently, EPA published the GHG Step 3 Rule on July 12, 2012 (77 FR 41051). In this rule, EPA decided against further phase-in of the PSD and title V requirements for sources emitting lower levels of GHG emissions. Thus, the thresholds for determining PSD applicability based on emissions of GHGs remained the same as established in Step 2 of the Tailoring Rule.

In addition, the July 12, 2012 (77 FR 41051), final rule revised EPA regulations under 40 CFR part 52 for establishing PALs for GHG emissions. A PAL establishes a site-specific plantwide emission level for a pollutant that allows the source to make changes at the facility without triggering the requirements of the PSD program, provided that emissions do not exceed the PAL level. Under EPA's interpretation of the federal PAL provisions, such PALs are already available under PSD for non-GHG pollutants and for GHGs on a mass basis. EPA revised the PAL regulations to allow for GHG PALs to be established on a carbon dioxide equivalent (CO2e) 12 basis as well. EPA finalized these changes in an effort to streamline federal and SIP PSD permitting programs by allowing sources and permitting authorities to address GHGs using PALs in a manner similar to the use of PALs for non-GHG pollutants.

On June 23, 2014, the U.S. Supreme Court addressed the application of stationary source permitting requirements to GHG emissions in Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 2427 (2014). The Supreme Court upheld EPA's regulation of Step 1—or “anyway” sources—but held that EPA may not treat GHGs as air pollutants for the purposes of determining whether a source is a major source (or a modification thereof) and thus require the source to obtain a PSD or title V permit. Therefore, the Court invalidated PSD and title V permitting requirements for Step 2 sources.

In accordance with the Supreme Court decision, on April 10, 2015, the D.C. Circuit issued an Amended Judgment vacating the regulations that implemented Step 2 of the GHG Tailoring Rule, but not the regulations that implement Step 1 of the GHG Tailoring Rule. Coalition for Responsible Regulation, Inc. v. EPA, 606 Fed. Appx. 6, 7 (D.C. Cir. 2015). With respect to Step 2 sources, the D.C. Circuit's Judgment vacated the EPA regulations under review (including 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v)) “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emissions increase from a modification.” Id. at 7-8.

EPA promulgated a final rule on August 19, 2015, entitled “Prevention of Significant Deterioration and Title V Permitting for Greenhouse Gases: Removal of Certain Vacated Elements.” See 80 FR 50199 (August 19, 2015). The rule removed from the Federal regulations the portions of the PSD permitting provisions for Step 2 sources that were vacated by the D.C. Circuit (i.e., 40 CFR 51.166(b)(48)(v) and 52.21(b)(49)(v)). EPA therefore no longer has the authority to conduct PSD permitting for Step 2 sources, nor can EPA approve provisions submitted by a state for inclusion in its SIP providing this authority. In addition, on October 3, 2016 (81 FR 68110), EPA proposed to revise provisions in the PSD permitting regulations applicable to GHGs to fully conform with UARG and the Amended Judgment, but those revisions have not been finalized.

In Tennessee's March 7, 2017, and April 17, 2017, SIP submittals, Knox County adopts Step 1 of the GHG Tailoring Rule only. It does not adopt the language pertaining to the Step 2, nor Step 3. This is consistent with Tennessee's rules which do not adopt Step 3 provisions and which include an automatic rescission clause that renders the Step 2 language ineffective at the state level due to the vacatur of Step 2 by the D.C. Circuit.

Under Federal regulations, certain activities are not considered to be a physical change or a change in the method of operation at a source, and thus do not trigger NSR review. One category of such activities is routine maintenance, repair and replacement (RMRR). On October 27, 2003 (68 FR 61248), EPA published a rule titled “Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion” (hereinafter referred to as the ERP Rule). The ERP Rule provided criteria for determining whether an activity falls within the RMRR exemption. The ERP Rule provided a list of equipment replacement activities that are exempt from NSR permitting requirements, while ensuring that industries maintain safe, reliable, and efficient operations that will have little or no impact on emissions. Under the ERP Rule, a facility undergoing equipment replacement would not be required to undergo NSR review if the facility replaced any component of a process unit with an identical or functionally equivalent component. The rule included several modifications to the NSR rules to explain what would qualify as an identical or functionally equivalent component.

Shortly after the October 27, 2003, rulemaking, several parties filed petitions for review of the ERP Rule in the D.C. Circuit. The D.C. Circuit stayed the effective date of the rule pending resolution of the petitions. A collection of environmental groups, public interest groups, and States, subsequently filed a petition for reconsideration with EPA, requesting that the Agency reconsider certain aspects of the ERP Rule. EPA granted the petition for reconsideration on July 1, 2004 (69 FR 40278).13 After the reconsideration, EPA published its final response on June 10, 2005 (70 FR 33838), which stated that the Agency would not change any aspects of the ERP. On March 17, 2006, the D.C. Circuit acted on the petitions for review and vacated the ERP Rule.14 Knox County did not adopt the vacated language from the ERP Rule in Tennessee's March 7, 2017, nor April 17, 2017, SIP submittals.

Knox County currently has a SIP-approved NSR program for new and modified stationary sources, including preconstruction regulations for PSD found in Section 45.0—“Prevention of Significant Deterioration,” and for NNSR found in Section 41.0—“Regulations for the Review of New Sources.” Tennessee's March 7, 2017, SIP revisions made changes to Section 41.0 and Section 45.0 to address changes to the federal NSR regulations, as promulgated by EPA in the 2002 NSR Reform Rules, and subsequent changes in other relevant rulemakings as described in section II, above.

As part of the changes to Section 41 and Section 45, Knox County adopted all the necessary provisions of the federal NNSR rules (found in 40 CFR 51.165) and the federal PSD rules (found in 40 CFR 51.166) to make them consistent with, and in some cases more stringent than, the federal rules. These changes included the adoption of several definitions in the federal PSD and NNSR rules, such as the definition of “regulated NSR pollutant,” as well as provisions regarding major NSR applicability procedures, actual-to-projected-actual applicability tests, PALs, and recordkeeping. Slight differences between the Knox County NSR rules and the federal rules are discussed below in Section III.A.1.—3.

Additionally, in the changes included in the March 7, 2017, SIP submittal, Knox County adopted the provisions from the Ozone Phase 2 Rule, as discussed in section II.C of this rulemaking. Consistent with TDEC's rules and the federal NNSR and PSD rules, Knox County adopted the same language regarding the Phase 2 rule found at 40 CFR 51.165 and 40 CFR 51.166. This includes amendments found in the federal NNSR rules in § 51.165(a)(1)(iv)(A)(1) through (3), (a)(1)(v)(E) and (F), (a)(1)(x), (a)(3)(ii)(C), and (a)(8) and (9), as well as the federal PSD rules in § 51.166(b)(1)(ii), (b)(2)(ii), (b)(23)(i), and (b)(49)(i).

EPA believes that the proposed approval of these changes, including all amendments mentioned in the following sections, will not have a negative impact on air quality in the County.

First, with these proposed changes, the local Knox County regulations will now be consistent with the State's current SIP-approved NSR program, which is slightly more stringent than the federal rules. Tennessee's NSR program already underwent updates concerning the 2002 NSR reform on September 14, 2007 (72 FR 52472).

Second, Knox County currently does not have any nonattainment areas, and all previous nonattainment areas have been redesignated to attainment due to clean data. Table 1, below, shows the most recent air quality monitoring design values (DV), in micrograms per meter cubed (μg/m3) and parts per billion (ppb), and the most current corresponding NAAQS in each redesignated (i.e., maintenance) area in Knox County.15 This data shows that air quality in the Knox County area has been improving over the years, and most recently the entire county has been designated as attainment/unclassifiable for both the 2010 1-hour SO2 and 2015 8-hour Ozone NAAQS as well.

On May 28, 2009, TDEC submitted a SIP revision to EPA for approval that contains changes to Tennessee's SIP-approved major NSR permitting regulations at Tennessee Air Pollution Control Regulations (TAPCR) 1200-3-9-.01—“Construction Permits,” including the adoption of federal requirements and the modification of certain other provisions.1 In this action, EPA is proposing to approve the portions of this SIP submission that make changes to the definitions of “baseline actual emissions” in Tennessee's SIP-approved Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) regulations at TAPCR 1200-3-9-.01(4)—“Prevention of Significant Air Quality Deterioration” and 1200-3-9-.01(5)(b)—“Nonattainment Areas,” respectively.2 Tennessee's NSR regulations at TAPCR 1200-3-9--.01 were last revised in the SIP on July 25, 2013 (78 FR 44886).

Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Intended Site Deletion I. Introduction

EPA Region 3 announces its intent to delete the Ordnance Works Disposal Areas Superfund Site from the National Priorities List (NPL) and requests public comment on this proposed action. For purposes of this action, the Site consists of Operable Unit 1 (OU1), an NPL-listed area of approximately 6 acres. This action does not include Operable Unit 2 (OU2), a non-NPL listed area of approximately eight hundred acres. Both OU1 and OU2 are located in an industrial/commercial complex formally known as the Morgantown Ordnance Works in Morgantown, West Virginia. Unless otherwise stated, references to the “Site” shall mean OU1 only. The NPL constitutes Appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

EPA will accept comments on the proposal to delete this site for thirty (30) days after publication of this document in the Federal Register.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Ordnance Works Disposal Areas Superfund Site and demonstrates how it meets the deletion criteria.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) EPA consulted with the State before developing this Notice of Intent to Delete;

(2) EPA has provided the State 30 working days for review of this action prior to this publication;

(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate;

(4) The State of West Virginia, through the WVDEP, has concurred with deletion of the Site from the NPL;

(5) Concurrently with the publication of this Notice of Intent to Delete in the Federal Register, a notice is being published in a major local newspaper, The Dominion Post. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL;

(6) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

If comments are received within the 30-day public comment period on this document, EPA will evaluate and respond appropriately to the comments before making a final decision to delete. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the Site, the Regional Administrator will publish a final Notice of Deletion in the Federal Register. Public notices, public submissions, and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and in the site information repositories listed above.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The Ordnance Works Disposal Areas Superfund Site (EPA Identification Number WVD000850404) consists of a disposal area designated by EPA as OU1 containing approximately 6 acres within a commercial/industrial development known as the Morgantown Ordnance Works outside of Morgantown, West Virginia. See Section I (Introduction) for details regarding OU1 and OU2. Within the geographical limits of OU2 is a third area consisting of two separate parcels currently being studied under the Resource Conservation and Recovery Act (RCRA). OU1 was a disposal location used by entities that operated in the remainder of the Morgantown Ordnance Works complex.

A removal action was conducted at OU2 on hotspots identified in a Remedial Investigation completed in 1995. Cleanup of OU2 occurred pursuant to a 1996 settlement with potentially responsible parties (PRPs) to perform a removal action and was based on exposure scenarios for the current and future anticipated land use. The work was conducted between March 1997 and June 1997. After the removal action was completed, EPA determined, based on the residual risk assessment analysis, that the potential for adverse carcinogenic and non-carcinogenic effects to industrial workers and youth trespassers was negligible and within the limits considered acceptable by EPA. No further response actions at OU2 are anticipated.

The Site is located approximately one mile southwest of the city of Morgantown, West Virginia, near the west bank of the Monongahela River. The population of Monongalia County is approximately 75,509; the city of Morgantown accounts for 25,879 of this total. The majority of the population lives to the northeast and northwest of the Site and obtains drinking water from a public supply. There are several houses within a one-mile radius of the Site that utilize wells in one capacity or another, however they are not located downgradient of the Site.

The Morgantown Ordnance Works, which later became the Morgantown Industrial Park, has been the location of a variety of industrial and chemical production facilities since the 1940's. These activities occurred primarily in OU2 of the Site; OU1 was used as a disposal area for various industrial concerns operating in OU2. Beginning in October 1940, the Morgantown Ordnance Works property was developed as a coke plant and chemical production facility by E.I. DuPont de Nemours and Company under contract to the United States Government. From 1943-1962, the United States held title to the property. Between 1941 and 1958, various businesses were operated by private parties, in some cases pursuant to government contracts and operating agreements, and in other cases pursuant to commercial leases. During these years, substances such as hexamine, ammonia, methyl alcohol, formaldehyde, ethylene diamine, and coke were produced. The plant was idle from 1958-1962.

In 1962, the property was sold to Morgantown Ordnance Works, Inc. which then leased and/or sold portions of the property to various industrial and chemical manufacturing operations. In 1964 Weston Chemical Company purchased a portion of the property totaling 62 acres that is split between two facilities known as the North and South plants. Weston Chemical Company was purchased by the Borg-Warner Corporation in 1969. General Electric (GE) purchased Borg-Warner Corporation in 1988 and in 2003 the GE North and South plants were purchased by Crompton Corporation. The Crompton Corporation then sold the two plants to Chemtura Corporation which in turn sold the two facilities, in 2013, to Addivant US, LLC, the current owner. The North and South plants are active facilities currently being addressed through a June 1990 RCRA settlement with EPA.

Except for parcels previously sold, which were portions of OU2, the Morgantown Ordnance Works property was acquired by Princess Coals, Inc. in 1978. In 1982, the property was purchased by private individuals who later formed Morgantown Industrial Park, Inc. In 1983, the property was conveyed to Morgantown Industrial Park Associates, which retained ownership of OU1, but then sold all of the other parcels comprising the industrial park property.

As a result of the industrial activities that occurred at the Morgantown Ordnance Works facility, hazardous substances were disposed of within a small area in the southern portion of the facility that is OU1 of the Site. OU1 contained an inactive landfill, two lagoons, a former drum staging area, and an area used for the shallow disposal of wastes called the scraped area. Investigation of this disposal area by EPA began in 1981. OU1 was proposed to the NPL on October 15, 1984 (49 FR 40320). On June 10, 1986, OU1 was added to the NPL (51 FR 21054).

Sampling at OU1 of the Site occurred in various phases between 1988 and 1998. Samples were collected, both by EPA as well as by PRPs, from groundwater, surface and subsurface soils, surface water, and sediments. Analyses revealed no connection between disposal activities at OU1 and the groundwater. The surface and subsurface soils, surface water, and sediment at OU1 were all impacted to varying degrees by organic and inorganic contaminants.

Test pits installed in the scraped area during the 1988 Remedial Investigation (RI) revealed cinder-like backfill material, blue and black catalyst pellets, and yellow solid material. Additional Phase II soil borings taken in the scraped area exposed visible tar at depths of up to eight feet and revealed total carcinogenic polycyclic aromatic hydrocarbons (cPAHs) ranging from 94 parts per million (ppm) to 36,000 ppm. Some elevated levels of inorganic contaminants were detected during the RI but were not detected in the scraped area during the 1996 Phase II Interim Design Tasks.

A portion of the lagoon area was excavated in 1981 to address metal plating wastes disposed in two surface impoundments between 1970 and 1976. During this action, miscellaneous wastes including coal tars were observed in the lagoon. Further investigation during the Phase II Interim Design Tasks indicated cPAH concentrations ranging from 3.2 ppm to 30,000 ppm; however, the inorganic contaminants detected during the 1988 RI were not found.

The northern section of OU1 was the location of the abandoned, inactive landfill estimated to have a fill depth of 20 feet at its thickest location. No records exist on quantities or types of material disposed of in the landfill. Eyewitness reports and direct observation reveal that the landfill contained construction debris, slag, ash, and catalyst pellets. Leachate from the landfill drained to the northeast into a wetland. The wetland drained directly to a feature known as “Swale 3,” which eventually discharged to the Monongahela River. During pre-design sampling, the sediment layer of both the wetland and upper portion of Swale 3 were determined to have been impacted by heavy metals contamination.

As part of the 1988 Remedial Investigation/Feasibility Study (RI/FS), EPA prepared a Baseline Human Health Risk Assessment (BHHRA) for the Site in order to identify and define possible existing and future human health risks associated with exposure to the contaminants present in the various media at OU1 if no action were taken. The BHHRA was revised in the 1989 Focused Feasibility Study (FFS) report. In both the 1988 original and 1989 revised BHHRA documents, EPA concluded that action was necessary to prevent contact with contaminated soil and sediments found at OU1 of the Site.

A comprehensive Ecological Risk Assessment was not conducted during either the 1988 RI/FS or the 1989 FFS. While drafting the September 29, 1999 Record of Decision (ROD), EPA's Biological Technical Assistance Group reviewed the 1988 RI data and concluded that inorganic contaminants were present in surface water and sediments within OU1 at levels that were acutely toxic to potentially affected ecosystems.

In March 1988, EPA issued a Record of Decision (ROD) for OU1 selecting onsite incineration of soils and sediments contaminated with cPAHs and heavy metals. In November 1988, EPA opened an additional 30-day comment period for out-of-state PRPs who had not received notice of the original Proposed Plan. Based on comments received during this period, EPA conducted a focused feasibility study (FFS) in 1989 to re-evaluate the alternatives described in the March 1988 ROD and to conduct a risk-based analysis of cleanup levels. This FFS was completed in June 1989.

On September 29, 1989, EPA issued a ROD that superseded the 1988 ROD. The 1989 ROD selected a remedy and contingency remedy for OU1. The selected remedial action included, among other things, excavation and treatment of inorganic hot spots from the lagoon and scraped areas; disposal of treated inorganic contaminants at the former landfill area; capping the former landfill; and excavation and treatment of organics-contaminated soils and sediments using bioremediation. The contingency remedial action called for treatment of soils and sediments using soil washing technology. In June 1990, EPA issued an administrative order directing several PRPs to implement the September 1989 ROD.

The human health risk assessment conducted in conjunction with the OU1 RI was completed in 1988. This assessment was completed prior to the issuance of a revised cancer potency factor (CPF) established in the Integrated Risk Information System (IRIS) for benzo(a)pyrene (BAP) and the interim comparative potency estimates provided by EPA's Office of Research and Development (ORD) in a guidance document entitled “Provisional Guidance for Quantitative Risk Assessment of Polycyclic Aromatic Hydrocarbons” (EPA/600/R-93/089 (July 1993)). In 1995, during implementation of remedial design conducted under EPA's June 1990 administrative order, the PRPs recalculated the cleanup standards for cPAHs at OU1 using the new CPF established in IRIS and the interim comparative potency estimates established by ORD. The resulting cleanup standard was less stringent than the cleanup standard identified in the September 1989 ROD. The PRPs submitted a proposal to EPA in July 1995 requesting that the Agency adopt the newly calculated cleanup standard of 78 ppm total cPAHs. EPA evaluated this proposal using a Monte Carlo simulation and determined that this cleanup level would result in risk within the 1x10−4 to 1x10−6 acceptable risk range established by the NCP. The Monte Carlo risk assessment verified that 78 ppm total cPAHs was an acceptable cleanup standard as long as the associated BAP value did not exceed 18.2 ppm. Achieving a cleanup level of 78 ppm total cPAHs with no more than 18.2 ppm BAP became the cPAH cleanup standard approved by EPA.

The PRPs completed treatability studies for the bioremediation component in March 1997 under EPA's June 1990 administrative order. The PRPs concluded, and EPA agreed, that bioremediation was not capable of meeting the 78 ppm total cPAH cleanup standard within a reasonable time-frame and was not cost-effective. The PRPs and EPA also concluded that the soil washing contingency action described in the September 1989 ROD was similarly deficient. In the Spring of 1997, the PRPs submitted a proposal to EPA to conduct a second FFS to identify a replacement remedial action for OU1. EPA agreed and negotiated a new agreement with the PRPs for this study work in October 1997. The second FFS was completed in 1998.

On September 30, 1999, EPA issued a ROD that superseded the 1989 ROD. The 1999 ROD selected a replacement remedial action for OU1. The selected remedy consisted of off-site thermal treatment of visibly stained stream, lagoon, and scraped area soils/sediments; consolidation of contaminated media into the existing landfill; restoration of streams and wetland areas where sediment was excavated; capping of the existing landfill; long-term monitoring; and institutional controls to protect the cap and prohibit residential development, recreational use, schools, and child care facilities within OU1. Neither the March 1988 ROD nor the September 1989 ROD required action to address groundwater. There was no evidence that the groundwater had been significantly impacted by disposal operations at OU1 and no unacceptable risks were posed to receptors of the groundwater at OU1. Therefore, the remedy selected in the 1999 ROD also did not include a groundwater remediation component.

The PRPs implemented the remedy selected for OU1 pursuant to an administrative order originally issued in 1989 and modified in 1999 to direct the PRPs to implement the 1999 ROD. The Remedial Design (RD) was conducted in conformance with the approved work plan and 1999 ROD. The Remedial Action (RA) was initiated in August 2000. The target areas were excavated as part of the RA and soils and sediments containing visible coal tar were separated for treatment and utilization as a fuel source for a local power plant. Utilization of the treated coal tar as a fuel source achieved destruction of the contaminants of concern through thermal treatment as well as beneficial reuse of the coal tar to produce electricity. The rest of the excavated material found to be above the ROD cleanup criteria was consolidated into the former landfill which was covered with a multi-layer RCRA Subtitle C cap.

EPA and WVDEP conducted a final inspection of OU1 on September 11, 2003 and determined that the remedy had been constructed in accordance with the Remedial Design plans and specifications and that no further construction was anticipated. EPA and WVDEP reviewed the remedial action contract and construction for compliance with quality assurance and quality control (QA/QC) protocols. Construction activities at the Site were determined to be consistent with the 1999 ROD, Remedial Design plans and specifications, and EPA's June 1990 administrative order.

The PRP's construction contractor adhered to the approved Construction Quality Assurance Plan (CQAP). The CQAP incorporated all EPA and State requirements. All confirmatory inspections, independent testing, audits, and evaluations of materials and workmanship were performed in accordance with the construction drawings, technical specifications, and the CQAP. Construction quality assurance was performed by the United States Army Corps of Engineers, Huntington District, which maintained a constant on-site presence. The EPA Remedial Project Manager and State regulators visited OU1 approximately twice a month during construction activities to review construction progress and evaluate and review the results of QA/QC activities. Institutional controls to protect the cap, limit land use to industrial/commercial operations, and prohibit use of groundwater were implemented in 2006 with the recording of an Environmental Covenant in the office of the Clerk of the County Commission of Monongalia County, West Virginia, in Deed Book 1327, at Page 557.

The remedy addressed visible tar-like material and contaminated soil and sediment exceeding site-specific cleanup standards. Cleanup standards specified in the 1999 ROD for the surface and subsurface soils in the Lagoon Area and Scraped Area are as follows: Total cPAH 78 ppm, with a BAP value not to exceed 18.2 ppm; arsenic 88.8 ppm; cadmium 642 ppm; copper 41,100 ppm; and lead 500 ppm. Cleanup standards specified in the 1999 ROD for stream and wetlands sediments are as follows: Total cPAH 78 ppm, with a BAP value not to exceed 18.2 ppm; arsenic 9.62 ppm; cadmium 0.35 ppm; chromium 30.2 ppm; copper 22.7 ppm; lead 31.6 ppm; mercury non-detect; and zinc 86.8 ppm. The project team determined that total removal of the existing sediments and replacement with clean fill would be the most the appropriate way to achieve cleanup of the sediments. Removal of the contaminated sediment and replacement with clean fill was completed as part of the Remedial Action.

The Quality Assurance Project Plan (QAPP) incorporated all EPA and State QA/QC procedures and protocols. EPA analytical methods were used for all confirmation and monitoring samples during RA activities. Sampling and analysis during construction and during Operation and Maintenance (O&M) monitoring was performed in accordance with approved Sampling and Analysis Plans. Procedures and protocols followed for soil sample analysis during the RA were conducted in accordance with the Contract Laboratory Program. EPA and the State determined that analytical results are accurate to the degree needed to assure satisfactory completion of the RA.

Site O&M requirements are contained in the approved O&M Plan dated April 13, 2012. This plan includes inspection of the landfill cover and wetlands and associated drainage systems, and sampling requirements for groundwater and treatment wetland effluent. O&M activities are performed by the PRPs under the 1990 EPA administrative order.

The treatment wetlands were initially inspected every six months during the first two years following the completion of the RA and continue to be inspected and maintained to ensure flow-through of leachate in the pond system. The integrity of the treatment ponds system has been monitored and has not required modification to date.

The replacement wetlands, located adjacent to the Monongahela River, are inspected annually as part of the landfill cap inspection. Beginning in 2008, the PRPs undertook efforts to eradicate invasive plant species from the replacement wetlands at the request of EPA and WVDEP. Recent inspections of the replacement wetlands have verified that the wetlands have developed into a high quality mosaic of forested, shrub-scrub, and emergent wetlands habitats. Invasive plants are present, but at low density as a result of the control measures implemented after construction. The presence of numerous wetland terrestrial, aquatic, and avian species was noted through visual and auditory observation.

Landfill cap inspections currently occur on a semi-annual basis. The cap has remained in good condition and has required only minor revegetation in small areas affected by erosion. No cracking or movement of surficial soils has occurred on the top of the cap slope. Storm water conveyance channels remain in good condition and no obvious signs of ponding water have been found. Overall the vegetative cover remains robust and well established and the drainage system operates as designed.

Five-Year Reviews were conducted at the Site in 2006, 2011, and 2016. In the Five-Year Review report issued on September 12, 2016, EPA concluded that the remedial action objectives for the remedy had been achieved. EPA found that the remedy is protective of human health and the environment, that the remedy was implemented in accordance with the remedial action objectives of the 1999 ROD, and that the remedy was functioning as intended. The landfill has not been found to be a significant source of contamination to the groundwater in the area and the contaminants of concern identified in the 1999 ROD have not been detected in groundwater samples during the review period. The multi-layer RCRA landfill cap was determined to be effective in containing hazardous waste materials, the treatment wetland ponds appeared to be functioning as intended, and access restrictions were found to be functional. Institutional controls are in place to prohibit disturbing the landfill cap, use of groundwater, and non-commercial use of any kind within OU1. O&M including annual inspections, leachate monitoring, and treatment wetland monitoring are performed by the PRPs pursuant to the 2012 approved O&M Plan. There were no issues or recommendations identified in the 2016 report. The next review for OU1 is required by September 2021.

Throughout the Site's history, EPA has kept the community and other interested parties apprised of Site activities through fact sheets, press releases, and public meetings. Public participation activities have been performed in accordance with Sections 113(k) and 117 of CERCLA. Documents in the deletion docket upon which EPA relied for recommending deletion of OU1 from the NPL are available to the public in the information repositories. EPA notified local officials in advance about Five-Year Reviews and placed notices in The Dominion Post to inform the public that the Five-Year Reviews were being conducted and when the findings of each would be available.

The implemented remedy achieves the degree of cleanup and protection specified in the 1999 ROD and meets EPA's acceptable risk for all exposure pathways. The remedial action at OU1 has been completed in accordance with the 1999 ROD, institutional controls are in place, and O&M is being conducted in accordance with the approved O&M Plan. All remedial action objectives, performance standards, and cleanup goals established in the 1999 ROD have been achieved and the remedy is protective of human health and the environment in both the short- and long-term. No further Superfund response, other than O&M, monitoring, and Five-Year Reviews, is necessary to continue to protect human health and the environment. All of the selected remedial actions and the remedial action objectives and associated cleanup goals are consistent with CERCLA, the NCP, and EPA policy and guidance.

The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., was enacted in 1970. NEPA states that “it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a). NEPA also established CEQ as an agency within the Executive Office of the President. 42 U.S.C. 4342.

By Executive Order (E.O.) 11514, “Protection and Enhancement of Environmental Quality” (March 5, 1970), President Nixon directed CEQ in Section 3(h) to issue “guidelines to Federal agencies for the preparation of detailed statements on proposals for legislation and other Federal actions affecting the environment, as required by section 102(2)(C) of the Act.” CEQ published these guidelines in April of 1970 and revised them in 1973.

President Carter issued E.O. 11991 (May 24, 1977), “Relating to Protection and Enhancement of Environmental Quality,” which amended Section 3(h) of E.O. 11514 to direct CEQ to issue regulations providing uniform standards for the implementation of NEPA, and amended Section 2 of E.O. 11514 to require agency compliance with the CEQ regulations. CEQ promulgated its “Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act” (CEQ's NEPA regulations) at 40 CFR parts 1500-1508. 43 FR 55978 (November 29, 1978). Since that time, CEQ has amended its NEPA regulations substantively only once, to eliminate the “worst case” analysis requirement of 40 CFR 1502.22. 51 FR 15618 (April 25, 1986).

On August 15, 2017, President Trump issued E.O. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” 82 FR 40463 (August 24, 2017). Section 5(e) of E.O. 13807 directed CEQ to develop an initial list of actions to enhance and modernize the Federal environmental review and authorization process. In response, CEQ published its initial list of actions pursuant to E.O. 13807 and stated that it intends to review its existing NEPA regulations in order to identify changes needed to update and clarify these regulations. 82 FR 43226 (September 14, 2017).

CEQ requests comments on potential revisions to update and clarify CEQ NEPA regulations. In particular, CEQ requests comments on the following specific aspects of these regulations, and requests that commenters include question numbers when providing responses. Where possible, please provide specific recommendations on additions, deletions, and modifications to the text of CEQ's NEPA regulations and their justifications.

1. Should CEQ's NEPA regulations be revised to ensure that environmental reviews and authorization decisions involving multiple agencies are conducted in a manner that is concurrent, synchronized, timely, and efficient, and if so, how?

2. Should CEQ's NEPA regulations be revised to make the NEPA process more efficient by better facilitating agency use of environmental studies, analysis, and decisions conducted in earlier Federal, State, tribal or local environmental reviews or authorization decisions, and if so, how?

3. Should CEQ's NEPA regulations be revised to ensure optimal interagency coordination of environmental reviews and authorization decisions, and if so, how?

4. Should the provisions in CEQ's NEPA regulations that relate to the format and page length of NEPA documents and time limits for completion be revised, and if so, how?

5. Should CEQ's NEPA regulations be revised to provide greater clarity to ensure NEPA documents better focus on significant issues that are relevant and useful to decisionmakers and the public, and if so, how?

6. Should the provisions in CEQ's NEPA regulations relating to public involvement be revised to be more inclusive and efficient, and if so, how?

7. Should definitions of any key NEPA terms in CEQ's NEPA regulations, such as those listed below, be revised, and if so, how?

a. Major Federal Action;

b. Effects;

c. Cumulative Impact;

d. Significantly;

e. Scope; and

f. Other NEPA terms.

8. Should any new definitions of key NEPA terms, such as those noted below, be added, and if so, which terms?

a. Alternatives;

b. Purpose and Need;

c. Reasonably Foreseeable;

d. Trivial Violation; and

e. Other NEPA terms.

9. Should the provisions in CEQ's NEPA regulations relating to any of the types of documents listed below be revised, and if so, how?

a. Notice of Intent;

b. Categorical Exclusions Documentation;

c. Environmental Assessments;

d. Findings of No Significant Impact;

e. Environmental Impact Statements;

f. Records of Decision; and

g. Supplements.

10. Should the provisions in CEQ's NEPA regulations relating to the timing of agency action be revised, and if so, how?

11. Should the provisions in CEQ's NEPA regulations relating to agency responsibility and the preparation of NEPA documents by contractors and project applicants be revised, and if so, how?

12. Should the provisions in CEQ's NEPA regulations relating to programmatic NEPA documents and tiering be revised, and if so, how?

13. Should the provisions in CEQ's NEPA regulations relating to the appropriate range of alternatives in NEPA reviews and which alternatives may be eliminated from detailed analysis be revised, and if so, how?

14. Are any provisions of the CEQ's NEPA regulations currently obsolete? If so, please provide specific recommendations on whether they should be modified, rescinded, or replaced.

15. Which provisions of the CEQ's NEPA regulations can be updated to reflect new technologies that can be used to make the process more efficient?

16. Are there additional ways CEQ's NEPA regulations should be revised to promote coordination of environmental review and authorization decisions, such as combining NEPA analysis and other decision documents, and if so, how?

17. Are there additional ways CEQ's NEPA regulations should be revised to improve the efficiency and effectiveness of the implementation of NEPA, and if so, how?

18. Are there ways in which the role of tribal governments in the NEPA process should be clarified in CEQ's NEPA regulations, and if so, how?

19. Are there additional ways CEQ's NEPA regulations should be revised to ensure that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, and if so, how?

20. Are there additional ways CEQ's NEPA regulations related to mitigation should be revised, and if so, how?

Under E.O. 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993), this is a “significant regulatory action.” Accordingly, CEQ submitted this action to the Office of Management and Budget (OMB) for review under E.O. 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. Because this action does not propose or impose any requirements, and instead seeks comments and suggestions for CEQ to consider in possibly developing a subsequent proposed rule, the various statutes and executive orders that normally apply to rulemaking do not apply in this case. If CEQ decides in the future to pursue a rulemaking, CEQ will address the statutes and executive orders applicable to that rulemaking at that time.

In FR Doc. 2018-08705 of May 7, 2018 (83 FR 20164) there were a number of technical and typographical errors that are identified and corrected by the Correction of Errors section of this correcting document.

On page 20165, in the For Further Information Contact section, we inadvertently omitted the contact for the Medicaid Promoting Interoperability Program.

On pages 20384, 20385, and 20401, we made errors that describe the notice announcing the extension of changes to the payment adjustment for low-volume hospitals and the Medicare-dependent hospital (MDH) program for fiscal year (FY) 2018 (CMS-1677-N) as appearing in the May 7, 2018 issue of the Federal Register in which the proposed rule appeared. This notice appeared in the April 26, 2018 issue of the Federal Register (83 FR 18301).

On pages 20483, 20484, and 20492, in our discussion of the Hospital Inpatient Quality Reporting (IQR) Program, we made technical and typographical errors in two website links and in referencing the payment determination year corresponding with the CY 2020 reporting period.

On page 20533, in our discussion of the proposed new measure for the Promoting Interoperability Programs, Support Electronic Referral Loops by Receiving and Incorporating Health Information, we made a technical error in our citation to the CEHRT capabilities and standards that eligible hospitals and CAHs must use. We erroneously cited 45 CFR 170.315(g)(1) and (2) instead of 45 CFR 170.315(b)(1) and (2).

On page 20557, in our discussion of the information collection requirements for the Hospital IQR Program, we made a technical error by referring to an outdated name of a form in our description of burden estimates for proposed removal of two structural measures.

On page 20563, in our discussion of the information collection burden estimates for the Promoting Interoperability Programs, we made a technical error by incorrectly referring to Title 45 instead of Title 42 of the Code of Federal Regulations (CFR) when describing proposed amendments to the prior approval policy applicable in the Medicaid Promoting Interoperability Program.

In FR Doc. 2018-08705 of May 7, 2018 (83 FR 20164), we are making the following corrections:

1. On page 20165, first column, after the second full paragraph, the text is corrected by adding the following:

“David Koppel, (214) 767-4403, Medicaid Promoting Interoperability Program Related Issues.”

2. On page 20384, lower half of the page—

a. Second column, last paragraph, lines 27 and 28, the phrase “elsewhere in this issue of the Federal Register” is corrected to read “in a separate issue of the Federal Register”.

b. Third column, last paragraph, lines 11 and 12, the phrase “elsewhere in this issue of the Federal Register” is corrected to read “in a separate issue of the Federal Register”.

3. On page 20385, first partial paragraph, lines 5 and 6, the phrase “elsewhere in this issue of the Federal Register” is corrected to read “in a separate issue of the Federal Register”.

4. On page 20401, third column, second full paragraph, lines 15 and 16, the phrase “elsewhere in this issue of the Federal Register” is corrected to read “in a separate issue of the Federal Register”.

5. On page 20483, first column, second footnoted paragraph (footnote 286), lines 1 through 4, the URL “http://www.strokassociation.org/STROKEORG/AboutStroke/Impact-of-Stroke-Stroke-statistics_UCM_310728_Article.jsp#.WtDzy42Wzg9.” is corrected to read “http://www.strokeassociation.org/STROKEORG/AboutStroke/Impact-of-Stroke-Stroke-statistics_UCM_310728_Article.jsp#.WtDzy42Wzg9.”.

6. On page 20484, top half of the page, first column, second partial paragraph, line 11, the phrase “CY 2020 reporting period/FY 2021 payment determination” is corrected to read “CY 2020 reporting period/FY 2022 payment determination”.

7. On page 20492, lower third of the page, third column, first partial paragraph, the URL “http://cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Measure-Methodology.html.” is corrected to read “https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/MMS/PC-Updates-on-Previous-Comment-Periods.html”.

8. On page 20533, second column, third full paragraph, lines 5 and 6, the citation “45 CFR 170.315(g)(1) and (g)(2)” is corrected to read “45 CFR 170.315(b)(1) and (b)(2).”

9. On page 20557, first column, first full paragraph, lines 30 and 31, the phrase “Extraordinary Circumstances Extension/Exemption Request Form” is corrected to read “Extraordinary Circumstances Exceptions Request Form”.

10. On page 20563, third column, first paragraph, lines 3 and 4, the CFR citation “45 CFR 495.324(b)(2) and 495.324(b)(3)” is corrected to read “42 CFR 495.324(b)(2) and 495.324(b)(3).”

NMFS published a proposed rule to implement Amendment 116 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) on June 6, 2018 (83 FR 26237). If approved, Amendment 116 would limit access to the BSAI TLAS yellowfin sole directed fishery by vessels that deliver their catch of yellowfin sole to motherships for processing. This proposed rule would (1) establish eligibility criteria based on historical participation in the BSAI TLAS yellowfin sole directed fishery, (2) issue an endorsement to those groundfish License Limitation Program (LLP) licenses that meet the eligibility criteria, and (3) authorize delivery of BSAI TLAS yellowfin sole to motherships by only those vessels designated on a groundfish LLP license that is endorsed for the BSAI TLAS yellowfin sole directed fishery. The public comment period for the proposed rule ends on July 6, 2018.

Proposed Table 52 in the proposed rule incorrectly identifies the groundfish LLP licenses that would be eligible to be credited with qualifying landings and receive an endorsement that allows catcher vessels to deliver BSAI TLAS yellowfin sole to a mothership. Proposed Table 53 incorrectly identifies the groundfish LLP licenses that would be eligible for, but would not be credited with, qualifying landings and thus would not receive a BSAI TLAS yellowfin sole catcher vessel directed fishery endorsement to deliver to a mothership until notification from the vessel owner is received by NMFS. Two paragraphs in the preamble to the proposed rule that describe these eligible groundfish LLP licenses incorrectly identified the number of groundfish LLP licenses that would be eligible to be credited with qualifying landings and receive a BSAI TLAS yellowfin sole catcher vessel directed fishery endorsement. These corrections are necessary because the proposed rule, if approved as published, would result in a total of seven groundfish LLP licenses that would receive a BSAI TLAS yellowfin sole directed fishery endorsement. However, NMFS has determined that a total of eight groundfish LLP licenses would receive a BSAI TLAS yellowfin sole directed fishery endorsement.

Based on the information provided in the analysis and the official record, NMFS has determined that 10 groundfish LLP licenses would be eligible to be credited with qualifying landing(s) and receive a BSAI TLAS yellowfin sole directed fishery endorsement. Six of these groundfish LLP licenses, rather than two as published in the proposed rule on June 6, 2018, would be immediately eligible to be credited with a qualifying landing and receive the endorsement (groundfish LLP licenses 3741, 3944, 2913, 1667, 3714, and 1820). Therefore, under this proposed rule, those six groundfish LLP licenses would be credited with a qualifying landing and receive a BSAI TLAS directed fishery endorsement. The remaining four eligible groundfish LLP licenses (groundfish LLP licenses 3838, 2702, 3902, and 3826), rather than eight as published in the proposed rule on June 6, 2018, were each one of two groundfish LLP licenses designated on a vessel that made qualifying landings during the qualifying period; therefore, those four groundfish LLP licenses would be eligible to be credited with a qualifying landing and receive an endorsement. For any of those four groundfish LLP licenses to be credited with a qualifying landing and receive an endorsement, the vessel owner would be required to select one groundfish LLP license that NMFS is to credit with all qualifying landings made by that vessel. Up to two of those four groundfish LLP licenses could be credited with a qualifying landing and receive an endorsement from NMFS. Therefore, NMFS anticipates that a total of eight groundfish LLP licenses could receive a BSAI TLAS yellowfin sole directed fishery endorsement under the proposed rule, resulting in up to eight vessels that could participate in the BSAI TLAS yellowfin sole directed fishery and deliver their catch to a mothership.

In the proposed rule, published on June 6, 2018 (83 FR 26237), the following corrections are made:

1. On page 26245, beginning in column 2, the last paragraph is corrected to read as follows:

Based on the information provided in the Analysis and the official record, NMFS has determined that ten groundfish LLP licenses would be eligible to be credited with qualifying landing(s) and receive a BSAI TLAS yellowfin sole directed fishery endorsement. Six of these were the sole groundfish LLP license designated on a vessel in a given year during the qualifying period, for those vessels that made a qualifying landing. Therefore, under this proposed rule, those six groundfish LLP licenses would be credited with a qualifying landing and receive a BSAI TLAS directed fishery endorsement. The remaining four eligible groundfish LLP licenses were each one of two groundfish LLP licenses designated on a vessel that made qualifying landings during the qualifying period; therefore, those four groundfish LLP licenses would be eligible to be credited with a qualifying landing and receive an endorsement. For any of those four groundfish LLP licenses to be credited with a qualifying landing and receive an endorsement, the vessel owner would be required to select one groundfish LLP license that NMFS is to credit with all qualifying landings made by that vessel. Up to two of those four groundfish LLP licenses could be credited with a qualifying landing and receive an endorsement from NMFS. Therefore, NMFS anticipates that a total of eight groundfish LLP licenses could receive a BSAI TLAS yellowfin sole directed fishery endorsement under the proposed rule, resulting in up to eight vessels that could participate in the BSAI TLAS yellowfin sole directed fishery and deliver their catch to a mothership.

2. On page 26246, beginning in column 2, the last paragraph is corrected to read as follows:

Based on the official record, NMFS has identified ten groundfish LLP licenses that would be eligible to be credited with qualifying landings. Six of these eligible groundfish LLP licenses were the sole groundfish LLP license on which a given vessel was designated at the time the vessel made qualifying landings of BSAI TLAS yellowfin sole. Therefore, NMFS would credit these six groundfish LLP licenses with the qualifying landings under this proposed rule. NMFS proposes to list these six groundfish LLP licenses in Table 52 to part 679. The remaining four eligible groundfish LLP licenses were not the sole groundfish LLP license on which a given vessel was designated at the time the vessel made at least one trip target in the BSAI TLAS fishery during the qualifying period. Because this proposed rule would require in such cases that the vessel owner specify one groundfish LLP license to receive credit with the qualified landing(s) made by that vessel, NMFS would not be able to credit these groundfish LLP licenses until NMFS receives notification from the vessel owner which groundfish LLP license should be credited with the qualifying landing(s). NMFS proposes to list in Table 53 to part 679 the four groundfish LLP licenses that would be eligible for, but would not be credited with, qualifying landings until notification from the vessel owner is received by NMFS. The proposed notification process is described in the following section.

3. On page 26251, column 2, is corrected to correctly identify the groundfish LLP licenses that are eligible to be assigned an endorsement for the BSAI Trawl Limited Access Sector yellowfin sole fishery.

Table 52 is corrected and reprinted in its entirety to read as follows:

4. On page 26251, column 3, is corrected to correctly identify the groundfish LLP licenses that require qualified landings assignment to be eligible for a BSAI Trawl Limited Access Sector yellowfin sole directed fishery endorsement.

Table 53 is corrected and reprinted in its entirety to read as follows: