Federal Register Vol. 83, No.153,

Public meetings for this proposed rulemaking will be held in:

1. Richland, WA at the HAMMER Federal Training Facility, Building 6091, Room 10, 2890 Horn Rapids Road, Richland, WA, on August 16th, 2018.

2. Albuquerque, NM at the Albuquerque Marriott, Sandia Room, 2101 Louisiana Blvd. NE, Albuquerque, NM, on September 6th, 2018.

3. Oak Ridge, TN at the Oak Ridge Associated Universities, Pollard Technology Conference Center Auditorium, 210 Badger Avenue, Oak Ridge, TN, on September 25th, 2018.

4. Aiken, SC at the University of South Carolina—Aiken, Business and Education Building, Room 124, 471 University Parkway, Aiken, SC, on September 27th, 2018.

All public meetings will be held from 1 p.m. to 4:30 p.m. and from 6 p.m. to 8:30 p.m. local time. Interested persons who wish to speak at the public meeting should telephone the Office of Nuclear Safety, (301) 903-2996, by 4:30 p.m. Eastern Time on August 13th, 2018 for Richland, WA, on August 31st, 2018 for Albuquerque, NM, on September 18th, 2018 for Oak Ridge, TN, and on September 20th, 2018 for Aiken, SC. Each presentation is limited to 20 minutes.

Pursuant to the Atomic Energy Act of 1954, as amended (the AEA), the Department of Energy (DOE or the Department) owns and leases nuclear and non-nuclear facilities at various locations in the United States. These facilities are operated either by DOE or by contractors with DOE oversight. Activities at these facilities include, but are not limited to: Research, testing, production, disassembly, or transporting nuclear materials. DOE regulations governing nuclear safety at these facilities are set forth in the Nuclear Safety Management rule (10 CFR part 830). The regulations were issued in response to external assessments from the National Academy of Sciences (NAS), the enactment of the Price-Anderson Amendments Act of 1988 (PAAA), and DOE efforts to improve safety at DOE nuclear facilities. Aspects of 10 CFR part 830 were finalized and issued from 1994 to 2001, covering core safety requirements for quality assurance and facility safety basis. Over the past 17 years, DOE has gained considerable experience in the implementation of 10 CFR part 830, and is proposing to modify the requirements to incorporate that experience and help ensure more effective safety performance.

On December 9, 1991, DOE published Procedural Rules for DOE Nuclear Activities (56 FR 64290) and a Notice of Proposed Rulemaking and Public Hearing (1991 Notice, 56 FR 64316) to add Parts 820 and 830 to Title 10 of the Code of Federal Regulation (CFR).1 Title 10 CFR part 830 was proposed to establish safety management requirements for DOE nuclear facilities. DOE issued, as final, the sections of 10 CFR part 830 related to the initial provisions (§§ 830.1-830.7) and Subpart A—General Provisions, (§§ 830.100-830.120) on April 5, 1994 (1994 Notice, 59 FR 15843).

The Department issued a Notice of Limited Reopening of the Comment Periods for the remaining topics to be addressed in 10 CFR part 830 on August 31, 1995, and for a second, unrelated, rule (Reopening Notice, 60 FR 45381).

On October 10, 2000, the Department published an Interim Final Rule and Opportunity for Public Comment (65 FR 60291) which amended the nuclear safety regulations to (1) establish and maintain safety bases for Hazard Category 1, 2, and 3 DOE nuclear facilities and perform work in accordance with safety bases, and (2) clarify that the quality assurance work process requirements apply to standards and controls adopted to meet regulatory or contract requirements that may affect nuclear safety (Interim Final Rule). The Interim Final Rule was also issued to provide further opportunity for public comment on the rule.

Following the public comment period, the Department issued a Final Rule on January 10, 2001 (66 FR 1810).

1. DOE Standard 1027—Section 830.202 of the regulations requires that DOE nuclear facilities be categorized consistent with DOE-STD-1027-92 (“Hazard Categorization and Accident Analysis Techniques for compliance with DOE Order 5480.23, Nuclear Safety Analysis Reports,” Change Notice 1, September 1997). The Department continues to believe that the methodology in DOE-STD-1027-92 Ch 1 is sufficient and supports the categorization of DOE nuclear facilities. In 2001, when Subpart B of 10 CFR part 830 was issued, not every Hazard Category 1, 2, and 3 DOE nuclear facility was categorized using a standardized methodology, and therefore consistent application of the cited reference, without change, was appropriate.

DOE now proposes, after two decades of experience in facility categorization using DOE-STD-1027-92, Ch 1, to amend § 830.202(b)(3) by adding “or successor document”. This change would allow the Department to revise the standard to include up-to-date research, data, and DOE experience with implementation. This would be consistent with DOE's practice to periodically evaluate and revise DOE Technical Standards and would follow the development, review, and approval process described in DOE Order 252.1A, Technical Standards Program. The Technical Standards Program process requires concurrence from all affected Departmental elements prior to issuance of any standard.

DOE also proposes to amend Section C, Scope, of Appendix A to remove the reference to the specific version of DOE-STD-1027, for consistency with the revision in § 830.202. DOE would also remove Table 1 of Appendix A and replace that table with a definition for Hazard Category 1, 2, and 3 DOE nuclear facilities in § 830.3 that references DOE-STD-1027-92 or successor document. The removal of Table 1 would allow successor revisions to more clearly link the determination of Hazard Category 1, 2, 3, and below hazard category 3 to the methodology in the Standard. The concept that Hazard Category 1 will have higher potential consequences and Hazard Category 3 will have lower potential consequences will be maintained throughout all successor documents of DOE-STD-1027.

2. Unreviewed Safety Question (USQ) Process—A situation or potential situation outside the bounds of the current safety analysis for a Hazard Category 1, 2, or 3 nuclear facility (as documented in its approved safety analysis) constitutes an Unreviewed Safety Question under the current regulations. Section 830.203 allows contractors to make changes to the facility, to change site or facility procedures, and to conduct tests and/or experiments without prior DOE approval when these activities do not involve an Unreviewed Safety Question and do not require any change to Technical Safety Requirements.

The proposed change to Appendix A to Subpart B of 10 CFR part 830—General Statement of Safety Basis Policy, H, Unreviewed Safety Questions, would add the sentence, “The contractor is allowed to make editorial and format changes to its USQ procedure while maintaining DOE approval.” This proposal would focus the requirement to obtain DOE's approval on changes with the potential to impact on the safety basis of the facility.

DOE also proposes to modify § 830.3, Definitions, by changing the definition for Unreviewed Safety Question (USQ). The current definition includes four situations that define a USQ: (1) The probability of the occurrence or the consequences of an accident or the malfunction of equipment important to safety previously evaluated in the documented safety analysis (DSA) could be increased; (2) The possibility of an accident or malfunction of a different type than any evaluated previously in the documented safety analysis could be created; or (3) A margin of safety could be reduced; or (4) The documented safety analysis may not be bounding or may be otherwise inadequate. As explained in the following paragraphs, the proposed definition would remove the third situation: “A margin of safety could be reduced”.

The current set of four situations that define an USQ in 10 CFR 830.3 reflected standard nuclear industry practice and was an adaptation of 10 CFR 50.59, changes, tests and experiments, used by the United States Nuclear Regulatory Commission (NRC). The NRC, in 1968, added to § 50.59 the concept of “margin of safety as defined in the basis for any technical specification is reduced.” In issuing 10 CFR part 830, DOE modified this question to simply read “A margin of safety could be reduced”. In addition to adapting the NRC process, DOE included the situation of “(4) The documented safety analysis may not be bounding or may otherwise be inadequate.”

The NRC, after 30 years of experience implementing § 50.59, issued an October 21, 1998, Notice of Proposed Rulemaking to change the criteria associated with margin of safety, explaining that “the phrases `margin of safety' and `as defined in the basis for any technical specification' in the third criterion have been the subject of differing interpretations because the rule does not define what constitutes a margin of safety or a basis for any technical specification in the context of §§ 50.59 and 72.48. In addition, some have questioned the need for the third criterion on `margin of safety.' ” The third criterion refers to the existence of two prior questions associated with creation, consequences, and likelihood of accidents and equipment malfunction. The revision to 10 CFR part 50 removing the term “margin of safety” from 10 CFR 50.59 was issued as a final rule on October 4, 1999.

DOE's experience with the margin of safety criteria is similar to that expressed by the NRC in its rulemaking, specifically, that the other existing criteria provide sufficient guidance to identify facility and safety basis changes that warrant DOE approval. Feedback from periodic surveys considering a broad-range of USQ determinations indicated that the “margin of safety” criterion has not provided benefit independent of the criteria DOE is retaining in the definition of the USQ process. In addition, stakeholder feedback noted that the “margin of safety” criterion was subjectively interpreted and often diverted safety resources without a corresponding safety benefit. Therefore, the proposed removal of the criterion related to “margin of safety” would enhance DOE and contractor operational effectiveness, without reducing the level of safety provided by the current practice. The current practice allows contractors to conduct certain specified activities without prior DOE approval, when these activities do not cause an Unreviewed Safety Question (and when they do not require Technical Safety Requirements changes).2

3. DOE Approval of Annual DSA Updates—As stated above, DOE currently requires the contractor, in § 830.203, Unreviewed Safety Question process, to obtain DOE approval prior to taking any action determined to involve a USQ. Additionally, in § 830.202 Safety basis, DOE requires the contractor to annually submit to DOE either the updated DSA for approval or a letter stating that there have been no changes in the DSA since the prior submission. This effectively requires the contractor to submit changes to the DSA for DOE approval twice. Currently, DOE provides implementation guidance for this approval process in DOE-STD-1104-2016, Review and Approval of Nuclear Facility Safety Basis and Safety Design Basis Documents, Section 7.1.2, Review of Safety Basis Changes and DSA Annual Updates. The guidance states that “Review and approval of revisions and annual updates are a matter of endorsing the incorporation of changes in the safety basis since the last approval rather than performing a new assessment of the previously approved safety basis documents.” While the guidance is clear in the intent to drive focus of DOE's approval to the change identified in the USQ process, the regulations' additional requirement for a second approval has led to considerable implementation challenges, and unnecessary review iterations without providing additional safety benefit.

Therefore, DOE is proposing to change the requirement in § 830.202, Safety basis, to require the current DSA be provided to DOE annually, but not to require DOE approval at that time. Additional guidance would also be included in Appendix A to Subpart B of 10 CFR part 830—General Statement of Safety Basis Policy, F, Documented Safety Analysis, to make clear that DOE's review and approval of the safety analysis is intended to be focused on changes submitted through the USQ process, but may require DOE approval if DOE has reason to believe a portion of the safety basis has substantially changed. DOE would continue to have the authority to review the safety basis at any time. DOE would maintain the ability to direct the contractor to incorporate in the safety basis any changes, conditions, or hazard controls.

4. Definition and Application of New Facilities, Major Modification, Preliminary Documented Safety Analysis, and Existing Facilities—The current definitions of a New DOE nuclear facility, Major Modification, Preliminary documented safety analysis, and Existing DOE nuclear facility (and applications of those definitions within the rule) reference specific dates related to the issuance of the rule and the need to bring DOE nuclear facilities into the regulatory framework. DOE is proposing to change the definitions to clearly recognize that all current DOE nuclear facilities are already within this regulatory framework and that new DOE nuclear facilities would be those that are in design or under construction that do not yet have a DOE approved safety basis. Additionally, the specific definition of an existing DOE nuclear facility is being proposed to be deleted. DOE proposes instead to rely upon a new definition of Hazard Category 1, 2, and 3 DOE nuclear facilities and the specific endpoint of a DOE approved safety basis to delineate between a new facility and an existing facility.

DOE also proposes to change the definition of a Major modification to remove the completion date of the facility. The definition would rely upon a criteria of a substantial change to the existing safety basis for the facility. This would link the meaning of “Major modification” to changes to existing Hazard Category 1, 2, or 3 nuclear facilities via the existence of a safety basis for the facility. Furthermore, additional clarity is proposed within 10 CFR part 830, subpart B, to highlight that the concept of “Major modification” would only apply to existing Hazard Category 1, 2, or 3 DOE nuclear facilities (i.e., nuclear facilities with an approved safety basis).

DOE proposes to change the definition of Preliminary documented safety analysis to maintain consistency with other proposed changes to the definitions related to nuclear facilities.

The specific proposed changes to 10 CFR part 830 are summarized below in the order in which they appear:

1. In proposed § 830.3 “Definitions,” the current definition for Existing DOE nuclear facility would be deleted, a definition for Hazard Category 1, 2, and 3 DOE nuclear facilities has been proposed, and there would be a modification of the current definition of New Hazard Category 1, 2, and 3 DOE nuclear facility. These changes are designed to improve the delineation between new and existing facilities. The definition for Major modification would be changed to remove the effective date associated with the original issuance of the rule. The definition for Preliminary documented safety analysis would be changed to better reflect the intent of preliminary documented safety analysis being associated with Hazard Category 1, 2, or 3 DOE nuclear facilities rather than all DOE nuclear facilities. The definition for Safety management system would be changed to include the specific title of 48 CFR 970.5223-1, Integration of environment, safety, and health into work planning and execution. The definition for Unreviewed Safety Question (USQ) would be changed by adding “or” to the end of (2), deleting “(3) A margin of safety could be reduced; or”, and renumbering (4) as (3).

2. In proposed § 830.201 “Performance of Work,” current § 830.201 would be changed by adding “DOE-approved” to modify safety basis to maintain consistency with § 830.207, DOE approval of safety basis.

3. Proposed § 830.202(b)(3) would be changed to add “or successor document” to modify DOE-STD-1027-92 (“Hazard Categorization and Accident Analysis Techniques for compliance with DOE Order 5480.23, Nuclear Safety Analysis Reports,” Change Notice 1, September 1997). This proposed change would allow DOE to modify the methodology used to perform hazard categorization consistent with DOE's policy of maintaining technical standards to reflect updated knowledge and methods. Current § 830.202(c)(2) would be changed to read, “(2) Annually provide DOE the current documented safety analysis or a letter stating that there have been no changes in the documented safety analysis since the prior submittal; and”. These proposed changes reflect the removal of the requirement for DOE to annually approve the documented safety analysis, and are intended to focus DOE's approval on the existing requirement to approve changes through the USQ process.

4. In proposed § 830.203 “Unreviewed safety question process,” current § 830.203(a) would be changed by adding “DOE-approved” as a modifier to USQ, and by changing the word “process” to “procedure”. These proposed changes are to clarify the connection between references to the DOE-approved procedure in proposed § 830.203(a), § 830.203(b), and § 830.203(c). Current § 830.203(b) would be deleted, since DOE no longer has existing facilities operating outside of 10 CFR part 830. In the current § 830.203(c), which is proposed to be redesignated as § 830.203(b), the word “new” has been proposed to be moved to match a proposed change in the definition of New Hazard Category 1, 2, and 3 nuclear facility, and “207(d)” would be changed to “207(a)” to reflect changes to § 830.207. Current § 830.203(d) would be redesignated as § 830.203(c). Current § 830.203(e) would be redesignated as § 830.203(d). Current § 830.203(f) would be redesignated as § 830.203(e), “submit” would be replaced by “provide”, and “submissions” would be replaced by “submittal” to better reflect that the document is being given to DOE for review, but not for approval. Current § 830.203(g) would be redesignated as § 830.203(f), and the text would be changed to read “initiated to meet paragraph (f)(1) of this section” consistent with citation changes in this section.

5. In proposed § 830.204 “Documented safety analysis,” current § 830.204(a) would be updated by changing “Table 2” to “Table 1” to reflect the deletion of Table 1 and re-numbering of subsequent tables.

6. In proposed § 830.206 “Preliminary documented safety analysis,” current § 830.206 would be changed to read “Prior to construction of a new Hazard Category 1, 2, or 3 DOE nuclear facility or a major modification to an existing Hazard Category 1, 2, or 3 DOE nuclear facility, the contractor responsible for the design and construction of the new facility or major modification must:” To reflect changes to the definitions in § 830.3. Current § 830.206(b)(1) would be changed to add, “, or successor document” as a modifier to “DOE Order 420.1, Facility Safety” to reflect the ongoing updates to the current version of the DOE order.

7. In proposed § 830.207 “DOE approval of safety basis,” current § 830.207(a) would be deleted, as DOE no longer has existing Hazard Category 1, 2, or 3 facilities operated outside of 10 CFR part 830. Current § 830.207(b) would be changed by adding “updated or amended” to modify “safety basis”, moving the word “existing” to before the phrase “Hazard Category 1, 2, or 3 DOE nuclear facility” to better match the revised definition, and by deleting “in effect on October 10, 2000, or as approved by DOE at a later date” to reflect that all Hazard Category 1, 2, or 3 DOE nuclear facilities already operate within 10 CFR part 830. Current § 830.207(c) would be deleted, as DOE no longer has existing Hazard Category 1, 2, or 3 facilities operated outside of 10 CFR part 830. Current § 830.207(d) would be redesignated as § 830.207(a) and updated to reflect the changes in definitions in § 830.3. As a result, the proposed § 830.207(a) would now read as: “With respect to a new Hazard Category 1, 2, or 3 DOE nuclear facility or a major modification to an existing Hazard Category 1, 2, or 3 DOE nuclear facility, a contractor may not begin operation of the facility or modification prior to the issuance of a safety evaluation report in which DOE approves the safety basis for the facility or modification.”

8. In proposed Appendix A to Subpart B to 10 CFR part 830—General Statement of Safety Basis Policy current “A. Introduction” would be modified by replacing a reference to an outdated DOE Policy with a specific statement that reflects current DOE policy and would now read as follows, “This Appendix does not create any new requirements and should be used consistently with DOE's policy that work be conducted safely and efficiently and in a manner that ensures protection of workers, the public, and the environment.”

9. In proposed Appendix A to Subpart B to 10 CFR part 830—General Statement of Safety Basis Policy current “C. Scope, 1.” would be changed by replacing the reference to “DOE-STD-1027-92 Change Notice 1, September 1997” with a general reference to DOE-STD-1027 to reflect the proposed change to allow successor versions of DOE-STD-1027 to be used, the reference to “Table 1” would be deleted to reflect the proposed deletion of Table 1. The proposed sentences now would read, “A contractor must establish and maintain a safety basis for a Hazard Category 1, 2, or 3 DOE nuclear facility because these facilities have the potential for significant radiological consequences. DOE-STD-1027 sets forth the methodology for categorizing a DOE nuclear facility based on the inventory of radioactive materials.” Current “C. Scope, 2.” Would be changed to delete the parenthetical reference to “including radiological facilities”, and by adding “DOE” to the reference to Hazard Category 1, 2, and 3 nuclear facilities to match changes to definitions within § 830.3. Current “C. Scope” Table 1 is proposed for deletion for consistency with the proposal to allow use of subsequent versions of DOE-STD-1027, since Table 1 references the specific content of DOE-STD-1027-92, Change Notice 1, September 1997.

10. In proposed Appendix A to Subpart B to 10 CFR part 830—General Statement of Safety Basis Policy, current “E. Enforcement of Safety Basis Requirements, 4.” would be changed by deleting the word “however” to improve clarity.

11. In proposed Appendix A to Subpart B to 10 CFR part 830—General Statement of Safety Basis Policy current “F. Documented Safety Analysis, 3.” would be changed by adding “as: (1) part of the initial submittal; (2) when revisions are submitted as part of a positive USQ or major modification; (3) if DOE has reason to believe a portion of the safety basis to be inadequate, or; (4) if DOE has reason to believe a portion of the safety basis has substantially changed. DOE will review the DSA” to better define when and why DOE would review a DSA. This change is proposed to be consistent with proposed changes to DOE's requirement to annually approve the DSA. Current “F. Documented Safety Analysis, 3.” would also be changed by adding “in the Safety Evaluation Report” to the end of the last sentence in that section, which currently reads, “A documented safety analysis must contain any conditions or changes required by DOE.” This change is proposed to clarify how DOE directs conditions and changes required by DOE. Additionally, Current “F. Documented Safety Analysis, 3.” would be changed by adding the following sentences, “Generally, DOE's review of the annual submittal may be limited to ensuring that the results of USQs have been adequately incorporated into the DSA. If additional changes are proposed by the contractor and included in the annual update that have not been previously approved by DOE or have not been evaluated as a part of the USQ process, DOE must review and approve these changes. DOE has the authority to review the safety basis at any time.” This proposed change is in support of focusing DOE's approval of changes in the DSA to the incorporation of USQ's or as DOE determines are necessary to maintain safe operations, rather than the previous annual process. Current “F. Documented Safety Analysis, 4.” would be changed by renumbering the reference to “Table 2” to “Table 1” to reflect the deletion of Table 1. Current “F. Documented Safety Analysis” would be changed by changing the title of “Table 2” to “Table 1” to reflect the deletion of Table 1. Current “F. Documented Safety Analysis, 5.” would be changed by renumbering the reference to “Table 2” to “Table 1” to reflect the deletion of Table 1, by changing the reference to the definition of nuclear facility to re-state the existing definition within § 830.3 instead of paraphrasing the definition, by renumbering the reference to “Table 3” to “Table 2” to reflect the deletion of Table 1, and by replacing “specific nuclear facilities” with “terms” in reference to the content within Table 1. Current “F. Documented Safety Analysis” would be changed by renumbering the title of “Table 3” to “Table 2” to reflect the proposed deletion of Table 1 and changing the reference to “Table 2” to “Table 1” to reflect the proposed deletion of Table 1. Current “F. Documented Safety Analysis, 6.” would be changed to delete the phrase “If construction begins after December 11, 2000” and by adding “or successor document” as a modifier to “DOE Order 420.1, Facility Safety” to reflect the ongoing updates to the current version of the DOE order.

12. In proposed Appendix A to Subpart B to 10 CFR part 830—General Statement of Safety Basis Policy current “G. Hazard Controls, 2.” would be changed to add “or successor document” as a modifier to “DOE Order 420.1, Facility Safety” to reflect the ongoing updates to the current version of the DOE order. Current “G. Hazard Controls, 4.” would be changed to update the reference to DOE Guide 423.1-1B and by adding, “or successor document” to reflect the ongoing updates to the current version of the DOE guide. Current “G. Hazard Controls, 4.” would be changed by changing the reference to “Table 4” to “Table 3” to reflect the proposed deletion of Table 1. Current “G. Hazard Controls” would be changed by changing the title of the table from “Table 4” to “Table 3” to reflect the proposed deletion of Table 1.

13. In proposed Appendix A to Subpart B to 10 CFR part 830—General Statement of Safety Basis Policy current “H. Unreviewed Safety Questions, 3.” Would be changed to update the reference to DOE Guide 424.1-1B Chg 2, to update the title of the referenced guide to “Implementation Guide for Use in Addressing Unreviewed Safety Question Requirements,” to add “or successor document” to reflect the ongoing updates to the current version of the DOE guide, and by adding the sentence, “The contractor is allowed to make editorial and format changes to its USQ procedure while maintaining DOE approval.” The additional sentence wold be provided to better delineate those aspects of the USQ process on which DOE approval focuses.

14. Throughout 10 CFR part 830, the term “Hazard Category” would be capitalized to improve consistency with the usage within the DOE regulatory structure.

Interested persons are invited to participate in this proceeding by submitting data, views, or arguments. Written comments should be submitted to the address, and in the form, indicated in the ADDRESSES section of this notice of proposed rulemaking. To help DOE review the comments, interested persons are asked to refer to specific proposed rule provisions, if possible.

If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information regulations at 10 CFR 1004.11.

Public meetings will be held at the times, dates, and places indicated at the start of the SUPPLEMENTARY INFORMATION section of this notice of proposed rulemaking. Any person who is interested in making an oral presentation should make a phone request to the person and telephone number in the SUPPLEMENTARY INFORMATION section by 4:30 p.m. on the date specified for making such requests. The person should provide a daytime phone number where he or she can be reached. Each oral presentation will be limited to 20 minutes. Persons making an oral presentation are requested to bring 3 copies of their prepared statement to the meeting and submit them to the registration desk prior to the meeting.

This notice of proposed rulemaking has been determined not to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this notice of proposed rulemaking was not subject to review by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

On January 30, 2017, the President issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” That Order stated the policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources. The Order stated it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. This proposed rule is expected to be an E.O. 13771 deregulatory action.

Additionally, on February 24, 2017, the President issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” The Order required the head of each agency designate an agency official as its Regulatory Reform Officer (RRO). Each RRO oversees the implementation of regulatory reform initiatives and policies to ensure that agencies effectively carry out regulatory reforms, consistent with applicable law. Further, E.O. 13777 requires the establishment of a regulatory task force at each agency. The regulatory task force is required to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each regulatory reform task force must attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

DOE concludes that this final rule is consistent with the directives set forth in these executive orders. This provisions in this proposed rule are intended, as described in section II, to enhance operational efficiency while maintaining robust safety performance at DOE nuclear facilities.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website (http://energy.gov/gc/office-general-counsel).

DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed rule would incorporate the experience of more than a decade of implementation to improve the effectiveness of the DOE nuclear safety regulatory framework while maintaining safety performance. Requirements that are considered duplicative or of little value have been proposed to be removed. DOE is proposing four key changes in this proposed rule, as described in II. Discussion of Proposed Rule, A. Discussion of Key Proposed Changes.

The changes in this proposed rule are all expected to reduce burden on affected DOE contractors. On this basis, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).

The information collection necessary to administer DOE's nuclear safety program under 10 CFR part 830 is subject to OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection provisions of this rule are not substantially different from those contained in DOE contracts with DOE prime contractors covered by this rule and were previously approved by the Office of Management and Budget (OMB) and under OMB Control No. 1910-0300. Public reporting burden for the certification is estimated to average 1.91 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

DOE has determined that this proposed rule is covered under the Categorical Exclusion in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to rulemaking that interprets or amends an existing rule or regulation without changing the environmental effect of the rule or regulation that is being amended. The proposed rule would amend DOE's regulations by removing duplicative approval requirements, updating definitions, and increasing the efficiency of internal processes. These proposed amendments are primarily procedural and would not change the environmental effect of 10 CFR part 830. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For regulatory actions likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. (This policy is also available at http://energy.gov/gc/office-general-counsel.) DOE examined this proposed rule according to UMRA and its statement of policy and has tentatively determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal government, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

Section 654 of the Treasury and General Government Appropriations Act, 1999, 5 U.S.C. 601 note, requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family wellbeing. While this proposed rule would apply to individuals who may be members of a family, the rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

The Treasury and General Government Appropriations Act, 2001, 44 U.S.C. 3516 note, provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA) a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action has been determined to not be a significant regulatory action, and it would not have an adverse effect on the supply, distribution, or use of energy. Thus, this action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

The Secretary of Energy has approved the publication of this proposed rule.

For the reasons stated in the preamble, DOE proposes to revise 10 CFR part 830 to read as follows:

I. Introduction

The NCUA's primary mission is to ensure the safety and soundness of federally insured credit unions. The agency performs this function by examining and supervising all federal credit unions, participating in the examination and supervision of federally insured, state-chartered credit unions in coordination with state regulators, and insuring members' accounts at federally insured credit unions.1 In its role as administrator of the NCUSIF, the NCUA insures and regulates approximately 5,573 federally insured credit unions, holding total assets exceeding $1.4 trillion and representing approximately 111 million members.2

At its October 2015 meeting, the Board issued the 2015 Final Rule to amend Part 702 of the NCUA's PCA regulations to require that credit unions taking certain risks hold capital commensurate with those risks.3 The risk-based capital provisions of the 2015 Final Rule apply only to federally insured, natural-person credit unions with quarter-end total assets exceeding $100 million. The overarching intent of the 2015 Final Rule is to reduce the likelihood that a relatively small number of high-risk outlier credit unions would exhaust their capital and cause large losses to the NCUSIF. Under the Federal Credit Union Act (FCUA), federally insured credit unions are collectively responsible for replenishing losses to the NCUSIF.4

The 2015 Final Rule restructures the NCUA's PCA regulations and makes various revisions, including amending the agency's current risk-based net worth requirement by replacing the risk based net worth ratio with a new risk-based capital ratio for federally insured, natural-person credit unions (credit unions). The risk-based capital requirements set forth in the 2015 Final Rule are more consistent with the NCUA's risk-based capital ratio measure for corporate credit unions and, as the law requires, are more comparable to the regulatory risk-based capital measures used by the Federal Deposit Insurance Corporation (FDIC), Board of Governors of the Federal Reserve System, and Office of the Comptroller of Currency (Other Banking Agencies). The 2015 Final Rule also eliminates several provisions in the NCUA's current PCA regulations, including provisions related to the regular reserve account, risk-mitigation credits, and alternative risk weights.

The 2015 Final Rule is currently set to become effective on January 1, 2019. The NCUA delayed the effective date until January 1, 2019 to provide credit unions and the NCUA sufficient time to make the necessary adjustments, such as systems, processes, and procedures; to reduce the burden on affected credit unions.

In 1998, Congress enacted the Credit Union Membership Access Act (CUMAA).5 Section 301 of CUMAA added section 216 to the FCUA,6 which required the Board to adopt by regulation a system of PCA to restore the net worth of credit unions that become inadequately capitalized.7 Section 216(b)(1)(A) requires the Board to adopt by regulation a system of PCA for federally insured credit unions “consistent with” section 216 of the FCUA and “comparable to” section 38 of the Federal Deposit Insurance Act (FDI Act).8 Section 216(b)(1)(B) requires that the Board, in designing the PCA system, also take into account the “cooperative character of credit unions” (i.e., credit unions are not-for-profit cooperatives that do not issue capital stock, must rely on retained earnings to build net worth, and have boards of directors that consist primarily of volunteers).9 The Board initially implemented the required system of PCA in 2000,10 primarily in Part 702 of the NCUA's Regulations, and most recently made substantial updates to the regulation in October 2015.11

The purpose of section 216 of the FCUA is to “resolve the problems of [federally] insured credit unions at the least possible long-term loss to the [NCUSIF].” 12 To carry out that purpose, Congress set forth a basic structure for PCA in section 216 that consists of three principal components: (1) A framework combining mandatory actions prescribed by statute with discretionary actions developed by the NCUA; (2) an alternative system of PCA to be developed by the NCUA for credit unions defined as “new;” and (3) a risk-based net worth requirement to apply to credit unions the NCUA defines as “complex.”

Among other things, section 216(c) of the FCUA requires the NCUA to use a credit union's net worth ratio to determine its classification among five “net worth categories” set forth in the FCUA.13 Section 216(o) generally defines a credit union's “net worth” as its retained earnings balance,14 and a credit union's “net worth ratio,” as the ratio of its net worth to its total assets.15 As a credit union's net worth ratio declines, so does its classification among the five net worth categories, thus subjecting it to an expanding range of mandatory and discretionary supervisory actions.16

Section 216(d)(1) of the FCUA requires that the NCUA's system of PCA include, in addition to the statutorily defined net worth ratio requirement applicable to federally insured natural-person credit unions, “a risk-based net worth 17 requirement for insured credit unions that are complex, as defined by the Board. . . .” 18 The FCUA directs the NCUA to base its definition of “complex” credit unions “on the portfolios of assets and liabilities of credit unions.” 19 It also requires the NCUA to design a risk-based net worth requirement to apply to such “complex” credit unions.20

Under § 702.103 of the NCUA's 2015 Final Rule, a credit union is defined as “complex” and the NCUA's risk-based capital ratio measure is applicable only if the credit union's quarter-end total assets exceed $100 million, as reflected in its most recent Call Report. Consistent with the spirit and intent of Executive Order 13777, the NCUA further analyzed the impact of the NCUA's risk-based capital requirements and the portfolios of assets and liabilities of credit unions to identify potential ways to reduce regulatory burden on credit unions.21

Based on the NCUA's analysis, which is discussed in more detail below, the Board believes that $500 million in total assets would be a more appropriate threshold level for defining a complex credit union, and therefore subjecting it to the risk-based capital requirement. Increasing the threshold level to $500 million in assets would reduce regulatory burden on credit unions by more closely tailoring the applicability of the NCUA's risk-based capital requirement to cover only those credit unions that, if they failed, individually could present an undue risk of loss to the NCUSIF. This amendment would exempt an additional 1,026 credit unions—a total of 90 percent 22 of all credit unions—from the 2015 Final Rule's risk-based capital requirements. However, approximately 85 percent of the complex assets and liabilities and 76 percent of the total assets in the credit union system would still be subject to the risk-based capital requirement.23 Accordingly, consistent with requirements of section 216(d)(1) of the FCUA, proposed § 702.103 would provide that, for purposes of § 702.102, a credit union is defined as “complex,” and a risk-based capital ratio requirement is applicable, only if the credit union's quarter-end total assets exceed $500 million, as reflected in its most recent Call Report.

Under the 2015 Final Rule, the NCUA determined that credit unions exceeding the $100 million asset-size threshold had portfolios of assets and liabilities that were complex based on the products and services in which such credit unions engaged. As explained further below, the $100 million asset-size threshold was developed as a proxy measure based on a detailed analysis performed by the NCUA. The threshold set forth a clear demarcation line, above which the NCUA determined all credit unions engaged in complex activities, and where almost all such credit unions (99 percent) were involved in multiple complex activities.24 The NCUA continues to believe that using a single asset-size threshold is appropriate, as it is clear, logical, and easy to administer. Moreover, using a single asset-size threshold provides regulatory relief for smaller institutions, and eliminates the potential unintended consequences of having a checklist of activities that would determine complexity on an institution-by-institution basis.

The $100 million asset threshold adopted in the 2015 Final Rule for determining whether a credit union is complex was based on a complexity index (original complexity index or OCI). The OCI counted the number of complex products and services provided by credit unions based on the following indicators:

As discussed in more detail in the 2015 Final Rule, these products and services were determined by the NCUA to be good indicators of complexity.25

To define “complex” credit unions for the 2015 Final Rule, the NCUA used the original complexity index to analyze June 30, 2014 and March 31, 2015 Call Report data. Based on the OCI, for credit unions with more than $100 million in assets, 100 percent engaged in offering at least one complex activity; 99 percent engaged in two or more complex activities; and 87 percent engaged in four or more complex activities. Accordingly, the Board determined it was appropriate to set the asset size threshold for “complex” credit unions at $100 million in total assets, subjecting credit unions with more than $100 million in assets to the NCUA's risk-based capital requirements.

As discussed in more detail below, the OCI did not take into account the volume of the complex activity engaged in by such credit unions.

Following a careful review of the 2015 Final Rule by the NCUA's regulatory reform task force,26 the Board is now proposing to revise the original complexity index (revised complexity index or RCI), and to apply a new complexity ratio (complexity ratio or CR) for analyzing the portfolios of assets and liabilities of credit unions to determine which are “complex.” The RCI would amend 6 of the indicators in the original complexity index so the index will more accurately reflect “complexity” in credit unions and take into account certain regulatory changes that were made after the 2015 Final Rule was approved. The revised complexity index would be the same as the original complexity index, with the following six changes:

• Replace the indicator for “member business loans” with an indicator for “commercial loans” to reflect changes to the NCUA's member business lending rule,27 and current Call Report data collection requirements.

• Replace the indicator for “participation loans” (which included participation loans sold and participation loans held) with an indicator for “participation loans sold” to restrict the indicator to the most complex component of participation loans.

• Replace the indicator for “interest-only loans” to exclude first-lien mortgages. The remaining interest only loans include complex payment options. For example, only requiring monthly payments of interest during draw periods.

• Remove the indicator for “internet banking” because it has become a typical mechanism for members to transact business with most credit unions, with 78 percent of credit unions engaging in some type of internet banking. Also, it is not an asset or liability—therefore there is no suitable way to translate the volume into a financial measure for purposes of defining complex.

• Remove the indicator for “investments with maturities greater than five years (where the investments are greater than one percent of total assets)” because the indicator is adequately captured in the other index components.

• Replace the indicator for “real estate loans (where the loans are greater than five percent of assets and/or sold mortgages)” with an indicator for “sold mortgages” to account for the most complex component of real estate loans.

The NCUA believes the revised complexity index would provide a more accurate methodology, based on the assets and liabilities of credit unions, for identifying when credit unions engage in complex activities and defining credit unions as “complex.” Table 1 shows that, among credit unions with $500 million or more in total assets, 100 percent engage in at least one complex activity, and 96 percent engage in three or more complex activities.

In addition to the revised complexity index, the NCUA is also proposing to use a ratio of complex assets and liabilities to total assets (complexity ratio or CR) to evaluate the extent to which credit unions are involved in complex activities. The CR, when used in conjunction with the revised complexity index, takes into account the volume of the complex activity engaged in by complex credit unions and provides a more accurate measure of credit union complexity.28 The numerator of the CR would be the dollar value sum of the complex assets and the liabilities held by a credit union, where complex assets and liabilities are determined using the same complexity indicators as used in the RCI. The denominator of the CR would be the total assets of the credit union.

As shown in Table 2 below, credit unions with greater than $500 million in total assets hold complex assets and liabilities as a larger share of their total assets than smaller credit unions. The complexity ratio increases from 23 percent among credit unions with less than $500 million in assets to 40 percent among credit unions with more than $500 million in assets. Of the $497 billion in complex assets and liabilities in the credit union system, $423 billion (85 percent)—the majority of complex assets and liabilities in the credit union system—are held among credit unions with more than $500 million in assets.29

Table 3 below shows the share of credit unions in each asset category above various complex ratio thresholds. Larger credit unions are much more likely to have a significant share of their balance sheet in complex assets and liabilities. Nearly all credit unions (95 percent) with more than $500 million in assets have complex assets and liabilities greater than 10 percent of their total assets, and 66 percent have complex assets and liabilities greater than 30 percent of their total assets.

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

We issued AD 2015-22-02, Amendment 39-18306 (80 FR 65618, October 27, 2015) (AD 2015-22-02), for Bell Model 429 helicopters with a TR pitch link assembly part number (P/N) 429-112-101 or 429-112-103 installed. AD 2015-22-02 requires repetitively inspecting each inboard and outboard TR pitch link assembly for axial or radial bearing play every 50 hours time-in-service (TIS), performing a dimensional inspection of the TR pitch link if there is axial or radial bearing play, and replacing the TR pitch link before further flight if there is any wear beyond allowable limits. AD 2015-22-02 was prompted by Emergency AD No. CF-2015-16, dated July 2, 2015, and Emergency AD No. CF-2015-16R1, dated August 6, 2015, issued by Transport Canada, to correct an unsafe condition for Bell Model 429 helicopters. Transport Canada advised of several occasions where the TR pitch link spherical bearings experienced early and accelerated wear.

Since we issued AD 2015-22-02, Transport Canada has issued AD No. CF-2015-16R2, dated April 17, 2017, which supersedes AD CF-2015-16R1. According to Transport Canada, Bell has reported that the TR pitch link assembly can be rotated during the 50-hour inspections to extend the serviceability life of the bearings. Transport Canada AD No. CF-2015-16R2 requires modified inspection procedures for the spherical bearings and requires replacing the TR pitch link bearings (or the TR pitch link assembly) with spherical bearings manufactured after January 12, 2015. Transport Canada AD No. CF-2015-16R2 also requires re-identifying TR pitch link assemblies with a different P/N after installing the new bearings. We propose to issue this AD to make similar changes.

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative, has notified us of the unsafe condition described in the Transport Canada AD. We are proposing this AD because we evaluated all information provided by Transport Canada and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

Bell has issued Alert Service Bulletin No. 429-15-16, Revision B, dated June 15, 2016. This service information contains procedures for repetitively inspecting the TR pitch link assembly until it is upgraded by replacing the TR pitch link bearings.

This proposed AD would require performing a dimensional inspection of the spherical bearings for axial and radial play and inspecting the TR pitch link assembly sealant for pin holes, voids, and excessive thickness. These inspections would be required within 50 hours TIS and thereafter at intervals not exceeding 50 hours TIS.

This proposed AD would also require replacing any spherical bearing manufactured before January 13, 2015, that has exceeded 250 hours TIS or that has an unknown number of hours TIS, and re-identifying the P/N of the TR pitch link assembly.

The Transport Canada AD requires the bearing inspection within 10 hours TIS or before exceeding 60 hours TIS since new, whichever occurs later. This proposed AD would require the bearing inspection within 50 hours TIS. The Transport Canada AD also requires replacing certain bearings within 200 hours TIS after the initial bearing inspection or within 250 hours TIS since new, whichever occurs first. This proposed AD would require replacing the bearing within 200 hours of the initial inspection or at the next 50 hour TIS inspection if the hours TIS of a pitch link assembly exceed 250 hours TIS or are unknown.

We consider this proposed AD to be an interim action. If final action is later identified, we might consider further rulemaking then.

We estimate that this proposed AD would affect 85 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this proposed AD. At an average labor rate of $85 per hour, inspecting the TR pitch link assemblies would require 2 work-hours for a cost of $170 per helicopter and $14,450 for the U.S. fleet per inspection cycle. Replacing both spherical bearings in each TR pitch link assembly would require 3 work-hours, and required parts would cost $3,088, for a cost of $3,343 per helicopter and $284,155 for the U.S. fleet.

According to Bell's service information 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 by Bell. Accordingly, 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.

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

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

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

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

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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 participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

We issued AD 2016-25-19, Amendment 39-18745 (81 FR 95854, December 29, 2016) (AD 2016-25-19), for Airbus Helicopters Model AS350B3 and EC130B4 helicopters with the ARRIEL 2B1 engine with the two-channel Full Authority Digital Engine Control (FADEC) and with new twist grip modification (MOD) 073254 (for the Model AS350B3 helicopter) or MOD 073773 (for the Model EC130B4 helicopter). AD 2016-25-19 requires repetitively inspecting the wiring, performing an insulation test, inspecting the pilot and copilot throttle twist grip controls, and testing the pilot and copilot throttle twist grip controls for proper functioning. AD 2016-25-19 was prompted by AD No. 2013-0191-E, dated August 22, 2013 (EASA AD 2013-0191-E), issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA advised that the switches in the engine “IDLE” or “FLIGHT” control system could be affected by the corrosive effects of a salt-laden atmosphere, which could lead to engine power loss. EASA AD 2013-0191-E required repetitive inspections for corrosion, application of corrosion protection on the switches, and testing of the insulation and switches of the engine idle and flight control system. The actions required in AD 2016-25-19 are intended to prevent unintended touchdown to the ground at a flight-idle power setting during a practice autorotation, damage to the helicopter, and injury to occupants.

Since we issued AD 2016-25-19, EASA issued AD No. 2017-0052, dated March 24, 2017, which superseded EASA AD No. 2013-0191-E, dated August 22, 2013. EASA advised that Airbus Helicopters had added clarifications to the operational procedure, introduced a modification to apply water-tight protection to the microswitch connectors, and extended the applicability to helicopters with a Turbomecca ARRIEL 2D engine installed.

EASA subsequently issued AD No. 2017-0059, dated April 6, 2017, which superseded EASA AD No. 2017-0052 to correct the applicability by including Model EC130T2 helicopters.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

We reviewed one document that co-publishes three Emergency Alert Service Bulletin (EASB) identification numbers: No. 05.00.61, Revision 3, dated June 15, 2015, for Model AS350B3 helicopters; No. 05.00.41, Revision 2, dated June 15, 2015, for the non-FAA type certificated Model AS550C3 helicopter; and No. 05A009, Revision 3, dated June 15, 2015, for Model EC130B4 helicopters. EASB Nos. 05.00.61 and 05A009 are incorporated by reference in AD 2016-25-19 and will be retained for the requirements of this proposed AD. EASB No. 05.00.41 is not incorporated by reference in AD 2016-25-19 and will not be incorporated by reference in this proposed AD. This service information applies to helicopters with an Arriel 2B1 engine installed and describes procedures for a functional check and installation of protection for micro-contacts (microswitches) 53Ka, 53Kb, and 65K (IDLE/FLIGHT mode).

We also reviewed one document that co-publishes three EASB identification numbers: No. 05.00.77, Revision 1, dated June 15, 2015, for Model AS350B3 helicopters; No. 05.00.52, Revision 1, dated June 15, 2015, for the non-FAA type certificated Model AS550C3 helicopter; and No. 05A014, Revision 1, dated June 15, 2015, for Model EC130T2 helicopters. EASB Nos. 05.00.77 and 05A014 will be incorporated by reference in this proposed AD. EASB No. 05.00.52 will not be incorporated by reference in this proposed AD. This service information applies to helicopters with an Arriel 2D engine installed and describes procedures for a check of the protection for micro-contacts (microswitches) 53Ka, 53Kb, and 65K (IDLE/FLIGHT mode).

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 proposed AD would retain the inspection requirements of AD 2016-25-19 but would add Model AS350B3 helicopters with an Arriel 2D engine installed and Model EC130T2 helicopters.

The EASA AD requires the initial inspections within 10 flight hours or 7 days; this proposed AD requires compliance before the next autorotation training flight or before 100 hours time-in-service, whichever occurs earlier, as the unsafe condition only occurs when transitioning the throttle in flight from flight to idle and back to flight, such as during a practice autorotation.

Additionally, the EASA AD requires installing Airbus Helicopters modification 074263; this proposed AD does not as it does not correct the unsafe condition.

We consider this proposed AD to be an interim action. If final action is later identified, we might consider further rulemaking then.

We estimate that this proposed AD would affect 692 helicopters of U.S. Registry.

We estimate that operators will incur the following costs in order to comply with this proposed AD. At an average labor rate of $85 per work hour, it would take about 4 work hours for the inspections and any necessary maintenance, for a total cost of $340 per helicopter and $235,280 for the U.S. fleet per inspection cycle.

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.

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, 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 to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

On November 16, 2017, the Maryland Department of Environment (MDE) submitted a revision to its SIP for COMAR 26.11.32—Control of Emissions of Volatile Organic Compounds from Consumer Products. The amendment is part of Maryland's strategy to achieve and maintain the 8-hour ozone national ambient air quality standards (NAAQS) throughout the State.

EPA has designated certain areas within Maryland as nonattainment for the 2008 ozone NAAQS. See 40 CFR 81.321. Also, all of Maryland is included in the Ozone Transport Region (OTR) and is therefore treated as a moderate nonattainment area for ozone. See CAA section 184(a), (b)(2), 42 U.S.C. 7511c(a), (b)(2). Therefore, Maryland must continue to enact regulations to gain further reductions of the emissions of VOCs, a class of compounds that are precursors to ground-level ozone. Ozone is formed in the atmosphere by photochemical reactions between VOCs and oxides of nitrogen (NOX) in the presence of sunlight. In order to reduce ozone concentrations, the CAA requires control of VOC and NOX emission sources to achieve VOC and/or NOX emission reductions in nonattainment areas.

In December 1999, EPA identified emission reduction shortfalls in several severe 1-hour ozone nonattainment areas, including those located in the OTR. The Ozone Transport Commission (OTC) developed model rules for a number of source categories. One of the model rules was to reduce VOC emissions from consumer products. The OTC model rules are based on existing rules developed by the California Air Resources Board (CARB) in 2001 (See “OTC Model Rule for Consumer Products,” issued March 28, 2001, revised November 29, 2001, and April 23, 2002), which were then analyzed and modified by OTC-formed workgroups to address emission reduction needs in the OTR. The 2001 OTC model rule set VOC emission limits on nearly 80 percent of the consumer product categories. Maryland adopted the 2001 OTC model rule for consumer products under COMAR 26.11.32—Control of Emissions of Volatile Organic Compounds from Consumer Products, on August 18, 2003. EPA approved Maryland's adopted regulation COMAR 26.11.32 as part of the SIP on December 8, 2004 (69 FR 70895). The OTC model rule for consumer products was amended on September 19, 2006, based upon changes by CARB in 2005. Maryland adopted the amended 2006 OTC model rule for consumer products under COMAR 26.11.32—Control of Emissions of Volatile Organic Compounds from Consumer Products, on June 8, 2007.

The amended model rule added fourteen consumer product categories with new product category definitions and VOC limits; revised one previously regulated category with a more restrictive VOC limit; and established additional requirements for two previously regulated categories. EPA approved Maryland's amended regulation into the SIP on December 10, 2007 (72 FR 69621). Maryland again amended its consumer products regulation and on October 18, 2010 (75 FR 63717), EPA approved Maryland's SIP revision to COMAR 26.11.32—Control of Emissions of Volatile Organic Compounds from Consumer Products. This SIP revision added and amended definitions; added VOC content limits for an additional 11 categories of consumer products; and revised the VOC content limits for one category of consumer products that was already regulated.

MDE's November 16, 2017 SIP revision asks EPA to approve into the SIP recent amendments to COMAR 26.11.32—Control of Emissions of Volatile Organic Compounds from Consumer Products, in order to institute the requirements of the 2010 and 2014 OTC model rules for consumer products. The 2010 and 2014 model rules were developed as part of a regional effort to attain and maintain the 8-hour ozone NAAQS, and reduce 8-hour ozone levels. The 2010 OTC model rule reflected changes made by the 2006 CARB rule. The 2014 OTC model rule reflected changes made by the 2009 CARB rule. The OTC model rules further enhance VOC standards for specific consumer products and introduces VOC standards for new products. The amendments to COMAR 26.11.32—Control of Emissions of Volatile Organic Compounds from Consumer Products, consists of updates to the VOC content limits and standards for a variety of consumer product categories, including personal care products, household products, automotive cleaners, and adhesives. The regulations set forth content and labeling requirements for flammable multi-purpose solvents and paint thinners. In addition, the regulations prohibit the sale, offer for sale, supply, or manufacture for use in the State of certain products manufactured on or after January 1 that contain methylene chloride, perchloroethylene, or trichloroethylene. These products include any bathroom and tile cleaner, construction panel and floor covering adhesive, electronic cleaner labeled “Energized Electronic Equipment use only,” general purpose cleaner, or oven or grill cleaner. The amendments also establish VOC standards for 11 new consumer product categories. In addition, the amendments further strengthen the VOC standards for 15 consumer product categories based on improved reformulations of these products that are capable of achieving lower VOC emissions while demonstrating an ability to maintain performance specifications for the products. The amendments also incorporate new definitions and numerous modifications to existing definitions to improve clarity. In particular, MDE amended the structure of the definition, exemptions, and VOC standard for the artist's thinner/solvent consumer product category without changing the regulatory language, which remains consistent with the 2009 CARB rule and the 2014 OTC model rule.

It is important to note that the 2006 CARB rule eliminated the “hair styling gel” category and now considers gels to fall under “hair styling product—all other forms.” Moving gels under the “hair styling product—all other forms” category reduced the VOC limit from 6 to 2 percent VOC by weight. The 2014 OTC model rule did not address this amendment as intended; however, MDE amended “hair styling gel” to be included under the “hair styling product—all other forms” category to meet the VOC limit of 2 percent VOC by weight in order to remain consistent with CARB.

The SIP revision consists of Maryland's revision to regulations .01-.06, .08, .12, .14, .16, and the addition of a new regulation .05-1, under COMAR 26.11.32—Control of Emissions of VOCs from Consumer Products. Generally, the regulations establish or amend VOC content limits and standards for a variety of consumer product categories, including personal care products, household products, automotive cleaners, and adhesives, in order to be consistent with the CARB and OTC model rules. The regulations also, among other things:

1. Set forth content and labeling requirements for flammable multi-purpose solvent and paint thinner;

2. prohibit the sale, offer for sale, supply, or manufacture for use in the State of specified products that contain methylene chloride, perchloroethylene, or trichloroethylene, which are compounds that are potential carcinogens; and

3. make various updates to the applicability provisions, documents incorporated by reference, definitions, reporting requirements, exemptions, and test methods.

Substantial amendments were made to COMAR 26.11.32.04—Standards—General, to establish that a person may not sell, supply, offer for sale, or manufacture for sale in the State a consumer product that contains VOCs in excess of limits specified in COMAR 26.11.32.04B based on the CARB and OTC model rules. The following 11 consumer products categories were added, including the VOC standards limits in parentheses based on percent VOC by weight: (1) Dual Purpose Air freshener/Disinfectant, Aerosol (60); (2) Anti-Static Product, Aerosol (80); (3) Artist's Solvent/Thinner (3); (4) Automotive Windshield Cleaner (35); (5) Disinfectant, Aerosol (70); (6) Disinfectant, Non-Aerosol (1); (7) Multi-Purpose Solvent (3); (8) Paint Thinner (3); (9) Sanitizer, Aerosol (70); (10) Sanitizer, Non-Aerosol (1); and (11) Temporary Hair Color, Aerosol (55).

The following existing 15 consumer products categories were amended, including the VOC content limits in parentheses based on percent VOC by weight: (1) Adhesive—Construction, Panel and Floor (7); (2) Automotive Brake Cleaner (category changed to Brake Cleaner (10); (3) Bathroom and Tile Cleaner, All Other Forms (subcategory changed to Non-Aerosol (1); (4) Carburetor or Fuel-Injection Air Intake Cleaner (10); (5) Engine Degreaser, Aerosol (10); (6) Floor Polish/Wax, Resilient Flooring Material (1); (7) Floor Polish/Wax, Non-resilient Flooring Material (1); (8) Furniture Maintenance Product, All Other Forms (subcategory changed to Non-Aerosol) (3); (9) General Purpose Cleaner, Aerosol (8); (10) General Purpose Degreaser, Aerosol (10); and (11) Laundry Starch/Sizing/Fabric Finish Product (4.5); (12) Nail Polish Remover (1); (13) Oven or Grill Cleaner, Non-Aerosol (subcategory changed to Non-Aerosol) (4); (14) Oven or Grill Cleaner, Aerosol (8); and (15) Shaving Gel (4).

In addition to these revised and new standards, Maryland added a requirement for “flammable and extremely flammable multi-purpose solvent and paint thinner,” to meet the formulated California VOC limits. The revision will continue to help Maryland attain and maintain the eight-hour ozone standard for the 2008 NAAQS. The revision is expected to result in estimated statewide VOC emissions reduction potential of approximately 6.3 tons per day through the implementation of standards for new and existing forms of consumer products. This estimate is based on the proposed emissions benefit methodology of CARB and OTC model rules.

Further details of Maryland's regulation revisions and the CARB and OTC model rules for consumer products can be found in the docket of this proposed rulemaking EPA-R03-OAR-2018-0153 on www.regulations.gov.

EPA is proposing to approve MDE's amendments to COMAR 26.11.32—Control of Emissions of VOCs from Consumer Products, that adopts the VOC limits established in the 2010 and 2014 OTC model rules for consumer products, based on the 2006 and 2009 CARB rules; respectively (with the exception of the previously discussed “hair styling gel” category). The OTR estimated regional VOC emission reductions of approximately 15 percent if all OTR states, including Maryland, adopts the 2010 and 2014 model rules. EPA's review of this material indicates that the revisions made to COMAR 26.11.32—Control of Emissions of VOCs from Consumer Products, meet the SIP revision requirements of the CAA. EPA is proposing to approve the State of Maryland's SIP revision for the control of emissions of VOCs from consumer products, which was submitted on November 19, 2017. EPA is soliciting public comments on the proposed adoption of these changes into the Maryland SIP.

In this proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the specific provisions of the Maryland rule discussed in section II of this preamble. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

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

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

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

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

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

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

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

In addition, this proposed rule, to approve amendments to the State of Maryland's COMAR 26.11.32—Control of Emissions of Volatile Organic Compounds from Consumer Products, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Table 1 lists the rule addressed by this proposal with the date it was adopted by SCAQMD and submitted by the California Air Resources Board (CARB), the governor's designee for California SIP submittals. Rule 1325 contains the District's New Source Review (NSR) permit program applicable to new and modified major sources emitting fine particulate matter (PM2.5) and PM2.5 precursors.

On November 1, 2017, CARB's May 8, 2017 submittal of Rule 1325 was deemed to meet the completeness criteria in 40 CFR part 51, appendix V. Completeness criteria must be met before formal EPA review.

The current SIP contains a version of Rule 1325—Federal PM 2.5 New Source Review Program, approved into the SIP on May 1, 2015 (80 FR 24821). Consistent with the District's stated intent to have the submitted rule replace the existing SIP-approved rule in its entirety, EPA's conditional approval of the rule identified above in Table 1 would have the effect of entirely superseding our prior approval of the same rule in the current SIP-approved program.

For areas designated as nonattainment for one or more National Ambient Air Quality Standards (NAAQS), the SIP must include preconstruction permit requirements for new or modified major stationary sources of such nonattainment pollutant(s), commonly referred to as “Nonattainment New Source Review” (NNSR). CAA 172(c)(5).

SCAQMD Rule 1325 addresses NNSR permit requirements for major sources of PM2.5. Rule 1325 has been amended to address SCAQMD's reclassification from a Moderate to a Serious PM2.5 nonattainment area and to implement additional provisions pertaining to precursors, as promulgated in EPA's rule entitled Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements (“2016 Implementation Rule”).1

Under EPA's 2016 Implementation Rule, which implements the D.C. Circuit court's January 2013 decision in NRDC v. EPA, 2 areas classified as nonattainment for any PM2.5 NAAQS are required to comply with the parts of CAA subpart 4 section 189(e) 3 that require 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 2016 Implementation Rule amended the definitions of (1) Regulated NSR Pollutant with regards to PM2.5 precursors; (2) Major Stationary Source with regards to major sources locating in PM2.5 nonattainment areas classified as Moderate and Serious; and (3) Significant with regards to emissions of PM2.5 precursors. Rule 1325 is subject to these new regulatory requirements.

The SCAQMD is classified as a Moderate nonattainment area for the 2012 PM2.5 NAAQS. On January 13, 2016,4 the SCAQMD was reclassified from a Moderate to a Serious PM2.5 nonattainment area for the 2006 PM2.5 NAAQS. The major source permitting threshold for a Moderate PM2.5 nonattainment area is 100 tons per year (tpy) of direct PM2.5 or any PM2.5 precursor, and 70 tpy for a Serious PM2.5 nonattainment area.

In addition, EPA has reviewed the submitted rule for compliance with: (1) The requirements for SIPs as set forth in CAA section 110(a)(2); (2) the requirements related to SIP revisions in CAA sections 110(l) and 193; (3) the requirements for stationary source preconstruction permitting programs in CAA section 173(a) through (c); and (4) the requirements related to the review and modification of major sources in 40 CFR part 51.165 that pertain to a PM2.5 nonattainment area classified as Serious.

In our previous May 1, 2015 5 action we evaluated Rule 1325 in accordance with the CAA and regulatory requirements listed in Section II.A of this preamble. In that action, we determined Rule 1325 satisfied the applicable requirements for a PM2.5 NNSR permit program. Below we discuss and evaluate the revised portions of submitted Rule 1325 to determine if the revisions meet current applicable requirements for a PM2.5 NNSR permit program.

Section (a)—Applicability, contains minor revisions to clarify that the rule applies to major polluting facilities that will emit PM2.5 or its precursors in areas federally-designated as nonattainment for PM2.5. EPA finds these clarifying revisions approvable.

Section (b)—Definitions, has been revised to update: (1) The effective date of the referenced 40 CFR 51.165(a)(1) definitions; (2) the definition of Major Polluting Facility to include a 70 tpy emissions threshold, effective upon the date of the EPA's approval of the November 4, 2016 amendments to Rule 1325; (3) the definition of Precursors to include volatile organic compounds (VOC) and ammonia, effective upon the date of the EPA's approval of the November 4, 2016 amendments to Rule 1325; and (4) the definition of “Significant” to include VOC and ammonia and specify a 40 tpy threshold. EPA finds these revisions approvable, as they are consistent with current applicable requirements for a serious PM2.5 nonattainment area.

The definition of Regulated NSR Pollutant was not revised to include VOC and ammonia as PM2.5 precursors. Because the definition for the term Major Modification relies on the definition of Regulated NSR Pollutant, Rule 1325 does not satisfy the requirement to include VOC and ammonia as PM2.5 precursors when evaluating if a project will result in a major modification, and it is therefore deficient.

Section (f)—Two Year Limit on Facility Exemption has been revised to lower the emissions threshold for this exemption provision from 100 tpy to 70 tpy, effective upon the date of the EPA's approval of the November 4, 2016 amendments to Rule 1325. The provision requires a source to aggregate its PM2.5 emissions from any permit actions that occur within a two-year period to determine if emissions exceed 70 tpy; if so, offsets are required for the aggregated emission increase. This provision requiring PM2.5 emissions to be aggregated is more stringent that CAA requirements. Therefore, EPA finds this more stringent provision acceptable.

Section (j)—Offset Exemptions for Regulatory Compliance has been added.

This provision allows the Executive Officer to exempt new or modified sources installed solely to comply with District, state or federal air pollution control regulations from the otherwise applicable offset requirements. EPA finds this new provision approvable.

In addition, other minor editorial or conforming edits have been made throughout the rule. EPA finds these revisions approvable.

With respect to procedural requirements, CAA sections 110(a)(2) and 110(l) require that revisions to a SIP be adopted by the state after reasonable notice and public hearing. EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart V. These requirements include publication of notices by prominent advertisement in the relevant geographic area, a public hearing or notice of an opportunity for a public hearing on the proposed revisions, and a public comment period of at least 30 days.

Based on our review of the public process documentation included in the May 5, 2017 submittal, we find that SCAQMD has provided sufficient evidence of public notice and opportunity for comment and a public hearing prior to adoption and submittal of these rules to EPA.

Section 193 of the Act, which was added by the Clean Air Act Amendments of 1990, includes a clause providing in pertinent part: “No control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.” Since PM2.5 is a NAAQS adopted after 1990, there are no existing PM2.5 control requirements that would be subject to the provisions of Section 193 of the CAA. Therefore, for the purposes of our analysis of Rule 1325, we find that Section 193 of the CAA does not apply to this action.

Because the revisions to Rule 1325 do not ensure VOC and ammonia emissions are evaluated to determine if a proposed project will result in a major modification, EPA cannot grant full approval of this rule under section 110(k)(3) of the Act. However, in a letter dated June 26, 2018, the District committed to adopt and submit specific enforceable measures to address this deficiency. The District committed to submit these revisions to CARB within 11 months of the date of EPA's final action. In addition, in a letter dated July 16, 2018, CARB committed to submit the adopted rule revisions to EPA no later than 12 months from the date of EPA's final action. Accordingly, pursuant to section 110(k)(4) of the Act, EPA is proposing a conditional approval of the submitted rule. We are proposing to conditionally approve the submitted rule based on our determination that separate from the deficiency listed above, the rule satisfies the applicable requirements discussed in Section II.A of this action.

In support of this proposed action, we have concluded that our conditional approval of the submitted rule would comply with section 110(l) of the Act because the amended rule, as a whole, would not interfere with continued attainment of the NAAQS in the South Coast Air Basin. The intended effect of our proposed conditional approval action is to update the applicable SIP with current SCAQMD rules and provide SCAQMD the opportunity to correct the identified deficiencies, as discussed in their commitment letter dated June 26, 2018. If we finalize this action as proposed, our action would incorporate this rule into the federally enforceable SIP and be codified through revisions to 40 CFR 52.220 (Identification of plan) and 40 CFR 52.119 (Part D conditional approval).

If the State meets its commitment to submit the required measures within 12 months of the date of EPA's final action, Rule 1325 will remain a part of the SIP until EPA takes final action approving or disapproving any subsequently submitted SIP revision. However, if the District fails to submit a revision within the required timeframe, the conditional approval will automatically become a disapproval, and EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval.

We will accept comments from the public on this proposal until September 7, 2018. If we take final action to approve the submitted rule, our final action will incorporate this rule into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SCAQMD rule listed in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available electronically through www.regulations.gov and in hard copy at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

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

On May 15, 2018, the State of Maryland, through the Maryland Department of the Environment (MDE), submitted for approval into the Maryland SIP new Code of Maryland Regulation (COMAR) 26.11.40—NOX Ozone Season Emission Caps for Non-Trading Large NOX Units and revisions to two regulations presently included in the Maryland SIP, COMAR 26.11.01.01—General Administrative Provisions and COMAR 26.11.14—Control of Emissions from Kraft Pulp Mills to EPA.

In October 1998 (63 FR 57356), EPA finalized the “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone”—commonly called the NOX SIP Call. The NOX SIP Call, issued pursuant to Section 110 of the CAA, was designed to mitigate significant transport of NOX, one of the precursors of ozone. EPA developed the NOX Budget Trading Program, an allowance trading program that states could adopt to meet their obligations under the NOX SIP Call. The NOX Budget Trading Program allowed electric generating units (EGUs) greater than 25 megawatts and industrial non-electric generating units, such as boilers and turbines, with a rated heat input greater than 250 million British thermal units per hour (MMBtu/hr), referred to as “large non-EGUs”, to participate in a regional NOX cap and trade program. The NOX SIP Call also established specific reduction requirements for other non-EGUs, including cement kilns and stationary internal combustion (IC) engines. On January 10, 2001 (66 FR 1866), EPA approved two Maryland regulations, COMAR 26.11.29—NO X Reduction and Trading Program, and COMAR 26.11.30—Policies and Procedures Relating to Maryland's NO X Reduction and Trading Program, into the Maryland SIP as meeting the requirements of the NOX SIP Call. Under the approved trading program, large EGUs and large non-EGUs in Maryland participated in a regional cap and trade program that was administered by EPA.

On May 12, 2005, (70 FR 25162), EPA promulgated the Clean Air Interstate Rule (CAIR) to address transported emissions that significantly contributed to downwind states' nonattainment and maintenance of the 1997 ozone and fine particulate matter (PM2.5) NAAQS. CAIR required 28 states, including Maryland, to reduce emissions of NOX and sulfur dioxide (SO2), which are precursors to ozone and PM2.5. Under CAIR, EPA developed separate cap and trade programs for annual NOX, ozone season NOX, and annual SO2 emissions. On April 28, 2006 (71 FR 25328), EPA also promulgated federal implementation plans (FIPs) requiring the EGUs in each affected state, but not large non-EGUs, to participate in the CAIR trading programs. States could comply with the requirements of CAIR by either remaining on the FIP, which applied only to EGUs, or by submitting a CAIR SIP revision that included as trading sources EGUs and the non-EGUs that formerly traded in the NOX Budget Trading Program under the NOX SIP Call. EPA discontinued administration of the NOX Budget Trading Program in 2009 upon the start of the CAIR trading programs.1 The NOX SIP Call requirements continued to apply, however, and EGUs that were formerly trading under the NOX Budget Trading Program continued to meet their NOX SIP Call requirements under the generally more stringent requirements of the CAIR ozone season trading program. States needed to assess their NOX SIP Call requirements and take other regulatory action as necessary to ensure that their obligations for the large non-EGUs continued to be met either through submission of a CAIR SIP or other NOX regulation. EPA has implementing regulations for the NOX SIP Call at 40 CFR 51.121.

In Maryland, Luke Paper Mill (formerly the Westvaco pulp and paper mill) was the only facility with non-EGUs that were affected by the NOX SIP Call and which participated in the NOX Budget Trading Program. When the CAIR NOX Ozone Season trading program replaced the NOX Budget Trading Program, Maryland adopted the CAIR program as it applied to large EGUs, but chose not to include the non-EGUs at Luke as participants in the CAIR NOX Ozone Season trading program.2 Instead, in 2010, Maryland adopted COMAR 26.11.14.07-Control of Emissions from Kraft Pulp Mills, which, among other requirements, included provisions that address the NOX SIP Call non-EGU requirements in Maryland through a NOX ozone season tonnage cap of 947 tons for the Luke non-EGUs and monitoring, recordkeeping, and reporting in accordance with 40 CFR part 75. EPA conditionally approved COMAR 26.11.14.07 into the Maryland SIP on August 30, 2016 (81 FR 59486) and took final approval on July 17, 2017 (82 FR 32641).

Subsequent to adoption of COMAR 26.11.14.07, MDE determined that additional applicable units have either started operation or were previously not subject but have become subject to the requirements for non-EGUs under the NOX SIP Call as the units are greater than 250 MMBtu/hr. A review of the applicability of the NOX SIP Call to large non-EGUs in the State showed that there are three additional facilities having non-EGUs that are covered under the NOX SIP Call. MDE adopted new regulation COMAR 26.11.40 to reallocate the NOX emissions cap among the affected sources, and concurrently revised COMAR 26.11.14.07 to reflect a reduced cap for Luke. The NOX annual emissions cap for Maryland established for the NOX SIP Call is 1,013 tons per year of NOX, as established by EPA in 40 CFR part 97, subpart E, Appendix C.

On May 15, 2018, Maryland, through MDE, submitted for inclusion in the Maryland SIP new regulation COMAR 26.11.40—NOX Ozone Season Emission Caps for Non-trading Large NO X Units, and associated revisions to COMAR 26.11.01.01—General Administrative Provisions, and COMAR 26.11.14—Control of Emissions from Kraft Pulp Mills.

New COMAR 26.11.40 establishes NOX ozone season tonnage caps and NOX monitoring requirements for large non-EGUs in the State that are not covered under the Cross-State Air Pollution Rule (CSAPR) to meet requirements of the NOX SIP Call. Regulation .01 under COMAR 26.11.40 defines the terms used in COMAR 26.11.40, including “boiler”, “combined cycle system”, “combustion turbine”, “fossil-fuel”, “fossil fuel-fired”, “new unit”, “new unit set-aside”, “non-trading large NOX unit”, and “ozone season”. The definition of non-trading large NOX unit in Regulation .01 lists two categories of sources: (1) Non-EGUs with a maximum design heat input greater than 250 MMBtu/hr, and (2) fossil fuel-fired EGUs serving a generator with a nameplate capacity greater than 25 megawatt output. Maryland explains its intent that these definitions apply to non-EGUs and EGUs as defined for purposes of the NOX SIP Call as amended.3 In addition to the definitions of non-trading large NOX unit, Maryland clarifies its intent by specifically listing in Regulation .02 all units in the State that currently meet the definitions. Regulation .01 also clarifies that non-EGUs subject to this rule are units that are not already subject to the CSAPR NOX Ozone Season Group 2 Trading Program under 40 CFR part 97, subpart EEEEE.

Regulation .02 under COMAR 26.11.40 lists the currently affected non-EGUs meeting the definition of “non-trading large NOX unit” (shown in the following table), and includes a provision that any new unit installed after May 1, 2018 or an existing unit that is modified such that it meets the definition of a large non-EGU will become subject to the requirements of COMAR 26.11.40. Regulation .03 under COMAR 26.11.40 establishes the NOX annual tonnage caps for each source. The affected units and their NOX ozone season caps are as follows:

Regulation .03 also establishes a 96 ton set aside for new units or modified existing units. The total, 1,013 tons of NOX, is consistent with the portion of the overall Maryland NOX Budget Trading Program budget for large non-EGUs.4 Regulation .03 stipulates that the combined NOX ozone season emissions from units subject to COMAR 26.11.40 may not exceed 1,013 tons. Regulation .04 requires continuous emissions monitoring (CEM) of NOX emissions at affected units in accordance with 40 CFR part 75, subpart H, as required by 40 CFR 51.121(i)(4),5 maintenance of records and submittal of reports in accordance with 40 CFR part 75, and submittal of CEMs data to the State on a quarterly basis.

To meet NOX SIP Call requirements and conform to COMAR 26.11.40, Maryland revised regulation .07A of COMAR 26.11.14 Control of emissions from Kraft Pulp Mills to remove the 947 ton ozone season NOX cap that originally applied to the Luke Mill. A new provision in COMAR 26.11.14 establishes Luke's lower NOX cap via a cross reference to Luke's 636 ton per year cap in COMAR 26.11.40.03. Regulation .07B removes the requirements for an owner or operator of a kraft pulp mill that exceeds the emission limit(s) specified in COMAR 26.11.14 to acquire one ozone season NOX allowance for every ton of NOX emissions over the limits to demonstrate compliance, and requires compliance instead to be demonstrated with the 636 ton per year cap via a CEMs meeting 40 CFR part 75. Maryland removed the provision for paper mills such as Luke Mill to acquire additional NOX allowances in order for the sources in the State to remain under Maryland's total NOX ozone season cap for the NOX SIP Call.

Correspondingly, Maryland also revised a provision of COMAR 26.11.01—General Administrative Provisions to remove the definition for “NOX ozone season allowance” which is no longer necessary because the revisions to COMAR 26.11.14 remove the requirement for fuel burning equipment at Luke to purchase NOX ozone season allowances for any exceedance over its specified limits.

EPA finds that this May 2018 SIP submittal meets Maryland's NOX SIP Call requirements (including requirements in CAA section 110 and 40 CFR 51.121) for non-EGUs through: (1) New regulation COMAR 24.11.40 which updates the State's requirements to include all currently applicable large non-EGUs and any new non-EGUs under the NOX SIP Call; (2) the specified state-wide ozone season NOX emissions cap of 1013 tons which is consistent with the portion of the overall Maryland NOX emissions budget under the NOX Budget Trading Program attributable to non-EGUs, and (3) through the 40 CFR part 75 monitoring, recordkeeping and reporting requirements which apply for the affected non-EGUs. In addition, the revisions remove the ability of kraft pulp mills that exceed their NOX limits and caps to comply by purchasing or otherwise acquiring NOX allowances from EPA's ozone season NOX trading program by removing these provisions in COMAR 26.11.14 and 26.11.01. The removal of the provisions allowing purchase of additional allowances removes the potential for increased local NOX emissions.

The May 15, 2018 Maryland SIP submittal does not result in increased NOX emissions, and therefore has no impact on any requirements related to attainment, reasonable further progress, or any other NAAQS requirements under the CAA. The submittal therefore meets section 110(l) of the CAA.

EPA's review of this material indicates that Maryland's May 18, 2018 SIP revision submittal (Maryland SIP Revision #18-03) is approvable in accordance with CAA section 110. For the reasons noted previously, EPA is proposing to approve the Maryland SIP revision submitted on May 15, 2018. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

In this proposed action, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference new Maryland regulation COMAR 26.11.40 and associated revisions to COMAR 26.11.01 and COMAR 26.11.14.07. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

In addition, this action proposing approval of Maryland regulation COMAR 26.11.40 and associated revisions to other COMAR regulations does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Table 1 lists the rule addressed by this action with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB). On February 22, 2018, CARB requested the withdrawal from its earlier SIP submittal of one sentence from two definitions (“Bond Breakers” and “Form Release Compounds”), which exempted these materials from the rule, due to the adoption of a rule regulating these materials. Accordingly, our proposed approval of this rule does not include the two withdrawn sentences.

On September 27, 2016, the EPA determined that the submittal for SCAQMD Rule 1113 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We approved an earlier version of SCAQMD Rule 1113 into the SIP on March 26, 2013 (78 FR 18244).

VOCs contribute to the production of ground-level ozone, smog, and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Architectural coatings are applied to stationary structures and their accessories. They include house paints, stains, industrial maintenance coatings, traffic coatings, and many other products. VOCs are emitted from the coatings during application and curing, and from the associated solvents used for thinning and clean-up. SCAQMD Rule 1113 controls VOC emissions by establishing VOC limits on architectural coatings. SCAQMD Rule 1113 was revised to increase stringency and reduce VOC emissions by updating VOC content limits, and restricting the small container exemption (less than 1 quart) for high-VOC coatings.

The EPA's technical support document (TSD) has more information about this rule.

SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

Generally, SIP rules must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source of VOCs in ozone nonattainment areas classified as Moderate or above (see CAA section 182(b)(2)). The SCAQMD has been designated as Extreme nonattainment for the 2008 8-hour ozone NAAQS (40 CFR 81.305). As addressed further in the EPA's TSD for this rule, there are no relevant EPA CTG documents and architectural coatings are considered area sources. Therefore, architectural coating sources are not subject to RACT requirements.

Guidance and policy documents that we use to evaluate enforceability, revision/relaxation, and rule stringency include the following:

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (57 FR 13498, April 16, 1992 and 57 FR 18070, April 28, 1992).

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations” (“the Bluebook,” U.S. EPA, May 25, 1988; revised January 11, 1990).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies” (“the Little Bluebook”, EPA Region 9, August 21, 2001).

4. National Volatile Organic Compound Emission Standards for Architectural Coatings, 40 CFR 59.400, Subpart D, Table 1, VOC Content Limits for Architectural Coatings.

We believe this rule is consistent with CAA requirements and relevant guidance regarding enforceability, stringency, and SIP revisions. The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because we believe it fulfills all relevant requirements. We will accept comments from the public on this proposal until September 7, 2018. If we take final action to approve the submitted rule, our final action will incorporate this rule into the federally enforceable SIP.

In this rule, the EPA is proposing to include in a final EPA rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SCAQMD rule described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

On March 12, 2018, January 29, 2018, and January 3, 2018, the District, Maryland, and Virginia, respectively, formally submitted a request to redesignate their portions of the Washington Area from marginal nonattainment to attainment for the 2008 ozone NAAQS. Concurrently, the District, Maryland, and Virginia formally submitted, as a revision to their respective SIPs, a joint maintenance plan for the Washington Area to ensure continued attainment for at least 10 years following redesignation. The maintenance plan includes MVEBs for NOX and VOC for the years 2014, 2025, and 2030. Pursuant to CAA section 107(d)(3), in this rulemaking action, EPA is proposing to approve the redesignation requests submitted by Maryland and Virginia for their portions of the Washington Area. EPA is not proposing to approve (at this time) the redesignation request from the District and will act on the District's redesignation request for its portion of the Area in a separate action. EPA is also proposing to approve, as revisions to the District's, Maryland's, and Virginia's SIPs, the joint maintenance plan submitted by the District, Maryland, and Virginia.

EPA is proposing to take several related actions. EPA is proposing to determine that Maryland and Virginia have met the requirements for redesignation for their respective portions of the Washington Area pursuant to section 107(d)(3)(E) of the CAA. EPA is therefore proposing to approve Maryland's and Virginia's redesignation requests and change the designation of their respective portions of the Washington Area from marginal nonattainment to attainment for the 2008 ozone NAAQS. EPA is also proposing to approve, as revisions to the District's, Maryland's, and Virginia's SIPs, the joint Washington Area maintenance plan that was prepared by the Metropolitan Washington Council of Governments (MWCOG) and jointly submitted by the District, Maryland, and Virginia. The maintenance plan is designed to ensure continued attainment in the Washington Area for the next ten years. Additionally, EPA has found the submitted MVEBs adequate and is proposing to approve, as revisions to the District's, Maryland's, and Virginia's SIPs, the 2014, 2025, and 2030 MVEBs for NOX and VOC for the Washington Area that are identified in the Washington Area maintenance plan. The adequacy comment period for the MVEBs began on May 21, 2018, with EPA's posting of the availability of the District's, Maryland's, and Virginia's maintenance plan submittal on EPA's Adequacy website (at https://www.epa.gov/state-and-local-transportation). The adequacy comment period for these MVEBs ended on June 20, 2018. EPA did not receive any adverse comments on this submittal during the adequacy comment period. In letters dated July 24, 2018, EPA informed the District, Maryland, and Virginia that the 2014, 2025, and 2030 MVEBs are adequate for use in transportation conformity analyses.1 Please see section V.B., “What Is the Status of EPA's Adequacy Determination for the Proposed NOX and VOC MVEBs for the Washington Area?”, of this rulemaking for further explanation of this process.

Under the CAA, EPA establishes NAAQS for criteria pollutants in order to protect human health and the environment. In response to scientific evidence linking ozone exposure to adverse health effects, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA requires EPA to review and reevaluate the NAAQS every 5 years in order to consider updated information regarding the effects of the criteria pollutants on human health and the environment. On July 18, 1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS was determined to be more protective of public health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm standard is referred to as the 2008 ozone NAAQS. See 73 FR 16436 (March 27, 2008).

Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) of the CAA requires EPA to designate as nonattainment any areas that are violating the NAAQS based on the most recent three years of quality-assured ozone monitoring data. On May 21, 2012 and June 11, 2012, EPA designated nonattainment areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective July 20, 2012, the Washington Area was designated as marginal nonattainment for the 2008 ozone NAAQS. The Washington Area consists of the Counties of Calvert, Charles, Frederick, Montgomery, and Prince George's in Maryland, the Counties of Arlington, Fairfax, Loudoun, and Prince William and the Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park Cities in Virginia, and the District of Columbia. See 40 CFR 81.309, 81.321, and 81.347.

As stated previously, on March 12, 2018, January 29, 2018, and January 3, 2018, the District, Maryland, and Virginia, respectively, formally submitted requests to redesignate their respective portions of the Washington Area from marginal nonattainment to attainment for the 2008 ozone NAAQS. The District, Maryland, and Virginia concurrently submitted, as revisions to their SIPs, a maintenance plan for the Washington Area to ensure continued attainment for at least 10 years following redesignation. In this rulemaking action, EPA is proposing to approve the redesignation requests submitted by Maryland and Virginia for their respective portions of the Area. EPA is not proposing to approve the redesignation request for the District for its portion and will act on the redesignation request for the District in a separate action. EPA is also proposing to approve, as revisions to the District's, Maryland's, and Virginia's SIPs, the maintenance plan jointly submitted by the District, Maryland, and Virginia.

Section 107(d)(3)(E) of the CAA allows redesignation of an area to attainment of the NAAQS provided that: (1) The Administrator (EPA) determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable federal air pollutant control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA; and (5) the State containing the area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

On April 16, 1992, EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (57 FR 13498) and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

For redesignation of a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS. See CAA section 107(d)(3)(E)(i). An area is attaining the 2008 ozone NAAQS if it meets the 2008 ozone NAAQS, as determined in accordance with 40 CFR 50.15 and appendix P of part 50, based on three complete, consecutive calendar years of quality-assured air quality data for all monitoring sites in the area. To attain the NAAQS, the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations, referred to as ozone design values, at each monitor must not exceed 0.075 ppm.2 The air quality data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). Ambient air quality monitoring data for the 3-year period must also meet data completeness requirements. An ozone design value is valid if daily maximum 8-hour average concentrations are available for at least 90 percent of the days within the ozone monitoring season,3 on average, for the three-year period, with a minimum data completeness of 75 percent during the ozone monitoring season of any year during the three-year period. See section 2.3 of appendix P to 40 CFR part 50.

As part of the final rule, “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan (SIP) Requirements,” for the 2008 ozone NAAQS (80 FR 12264, March 6, 2015) (hereinafter, SIP Requirements Rule), EPA modified the maximum attainment dates for all nonattainment areas for the 2008 ozone NAAQS to be consistent with the United States Court of Appeals for the District of Columbia Circuit's (D.C. Circuit) decision in NRDC v. EPA, 777 F .3d 456, 464-69 (D.C. Cir. 2014).4 The SIP Requirements Rule established a maximum deadline for marginal nonattainment areas to attain the 2008 ozone NAAQS of three years from the effective date of designation, or July 20, 2015. See 80 FR at 12268; 40 CFR 51.1103.5

In the final rules section of this issue of the Federal Register, the EPA is approving the State's SIP submittal as a direct rule without prior proposal because the Agency views this as noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action no further activity is contemplated. If the EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

For additional information, see the direct final rule, which is located in the rules section of this issue of the Federal Register.

On May 29, 2013, the State of Delaware, through the Delaware Department of Natural Resources and Environmental Control (DNREC) submitted a SIP revision addressing the infrastructure requirements under section 110(a)(2) of the CAA for the 2010 1-hour SO2 NAAQS.

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

Current scientific evidence links short-term exposures to SO2, ranging from five minutes to 24 hours, with an array of adverse respiratory effects including bronchoconstriction and increased asthma symptoms. These effects are particularly important for asthmatics at elevated ventilation rates (e.g., while exercising or playing). Studies also show a connection between short-term exposure and increased visits to emergency departments and hospital admissions for respiratory illnesses, particularly in at-risk populations including children, the elderly, and asthmatics.

Pursuant to section 110(a)(1) of the CAA, states are required to submit a SIP revision to address the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements to assure attainment and maintenance of the NAAQS—such as requirements for monitoring, basic program requirements, and legal authority. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances of each NAAQS and what is in each state's existing SIP. In particular, the data and analytical tools available at the time the state develops and submits the SIP revision for a new or revised NAAQS affect the content of the submission. The content of such SIP submission may also vary depending upon what provisions the state's existing SIP already contains.

Specifically, section 110(a)(1) provides the procedural and timing requirements for SIP submissions. Section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS.

Section 110(a)(2)(D)(i)(I) of the CAA requires a state's SIP to include adequate provisions prohibiting any emissions activity in one state that contributes significantly to nonattainment, or interferes with maintenance, of the NAAQS in any downwind state. The EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or jointly as the “good neighbor” provision of the CAA. Further information can be found in the Technical Support Document (TSD) for this rulemaking action, which is available online at www.regulations.gov, Docket number EPA-R03-OAR-2013-0492.

On May 29, 2013, Delaware submitted, through DNREC, a revision to its SIP to satisfy the infrastructure requirements of section 110(a)(2) of the CAA for the 2010 1-hour SO2 NAAQS, including the interstate transport requirements of section 110(a)(2)(D)(i)(I). On January 22, 2014 (79 FR 3506), the EPA approved Delaware's infrastructure SIP submittal for the 2010 1-hour SO2 NAAQS for all applicable elements of section 110(a)(2) with the exception of 110(a)(2)(D)(i)(I). This proposed rulemaking action is addressing the portions of Delaware's infrastructure submittal for the 2010 1-hour SO2 NAAQS that pertain to transport requirements.1 2

The portions of Delaware's May 29, 2013 SIP submittal addressing interstate transport (for section 110(a)(2)(D)(i)(I)) discuss how Delaware does not significantly contribute with respect to the 2010 1-hour SO2 NAAQS to nonattainment in, or interfere with maintenance in, any other state and discusses prevailing wind direction in the region. Additionally, Delaware described in its submittal several existing SIP-approved measures and other federally enforceable source-specific measures, pursuant to permitting requirements under the CAA, that apply to SO2 sources within the state.

Based on EPA's analysis, EPA agrees with Delaware's general conclusion that the existing Delaware SIP is adequate to prevent sources in Delaware from significantly contributing to nonattainment or interfering with maintenance in another state with respect to the 2010 1-hour SO2 NAAQS. A detailed summary of EPA's review and rationale for proposed approval of this SIP revision as meeting CAA section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS may be found in the TSD.

EPA is proposing to approve the portions of Delaware's May 29, 2013 SIP revision addressing interstate transport for the 2010 1-hr SO2 NAAQS as these portions meet the requirements in section 110(a)(2)(D)(i)(I) of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

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

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

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

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

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

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

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

In addition, this proposed rule, addressing Delaware's interstate transport requirements for the 2010 1-hour SO2 NAAQS, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

NMFS proposes to specify a 2018 catch limit of 2,000 t of longline-caught bigeye tuna for each U.S. Pacific territory. NMFS would also authorize each U.S. Pacific territory to allocate up to 1,000 t of its 2,000 t bigeye tuna limit to U.S. longline fishing vessels that are permitted to fish under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP). Those vessels must be identified in a specified fishing agreement with the applicable territory. The Western Pacific Fishery Management Council recommended these specifications. The proposed catch and allocation limits and accountability measures are identical to those specified for U.S. territories in each year since 2014 (for the most recent example, see 82 FR 47642, October 13, 2017).

NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each U.S Pacific territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819. When NMFS projects that a territorial catch or allocation limit will be reached, NMFS would, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (if the territorial catch limit is projected to be reached), and/or vessels in a specified fishing agreement (if the allocation limit is projected to be reached).

NMFS will consider public comments on the proposed action and will announce the final specifications in the Federal Register. On March 20, 2017, in Territory of American Samoa v. NMFS, et al. (16-cv-95, D. Haw), a federal judge set aside a NMFS rule that amended the American Samoa Large Vessel Prohibited Area (LVPA) for eligible longliners because it did not consider under the Deeds of Cession the protection of cultural fishing in American Samoa. NMFS is appealing this decision. However, NMFS invites public comments that address the impact of this proposed rule on cultural fishing in American Samoa. NMFS must receive any comments on this rule by the date provided in the DATES heading. NMFS may not consider any comments not postmarked or otherwise transmitted by that date. Regardless of the final specifications, all other existing management measures will continue to apply in the longline fishery.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator for Fisheries has determined that this proposed specification is consistent with the FEP, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that these proposed specifications, if adopted, would not have a significant economic impact on a substantial number of small entities.

The proposed action would specify a 2018 limit of 2,000 t of longline-caught bigeye tuna for American Samoa, Guam, and the CNMI. NMFS would also allow each territory to allocate up to 1,000 t of its 2,000 t limit to U.S. longline fishing vessels in a specified fishing agreement that meets established criteria set forth in 50 CFR 665.819. As an accountability measure, NMFS would monitor, attribute, and restrict (if necessary) catches of longline-caught bigeye tuna by vessels in the applicable U.S. territory (if the territorial catch limit is projected to be reached), or by vessels operating under the applicable specified fishing agreement (if the allocation limit is projected to be reached). Payments under the specified fishing agreements support fisheries development in the U.S. Pacific territories and the long-term sustainability of fishery resources of the U.S. Pacific Islands.

This proposed action would directly apply to longline vessels federally permitted under the FEP, specifically Hawaii, American Samoa, and Western Pacific longline permit holders. As of May 2018, 145 vessels had Hawaii permits and 47 had American Samoa permits. No Western Pacific general permit has been issued since 2011.

Based on dealer data collected by the State of Hawaii, Hawaii longline vessels landed approximately 32.75 million pounds (lb) of pelagic fish valued at $101.6 million in 2017. With 145 vessels making either a deep- or shallow-set trip in 2017, the ex-vessel value of pelagic fish caught by Hawaii-based longline fisheries averaged almost $701,000 per vessel. In 2016, American Samoa-based longline vessels landed approximately 4.5 million lb of pelagic fish valued at $4.7 million, where albacore made up the largest proportion of pelagic longline commercial landings at 3.35 million lb. With 18 active longline vessels in 2016, the ex-vessel value of pelagic fish caught by American Samoa fishery averaged about $261,111 per vessel.

NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. Based on available information, NMFS has determined that all vessels permitted federally under the FEP are small entities, i.e., they are engaged in the business of fish harvesting (NAICS 114111), are independently owned or operated, are not dominant in their field of operation, and have annual gross receipts not in excess of $11 million. Even though this proposed action would apply to a substantial number of vessels, the implementation of this action would not result in significant adverse economic impact to individual vessels. The proposed action would potentially benefit the Hawaii longline fishermen by allowing them to fish under specified fishing agreements with a territory, which could extend fishing effort for bigeye tuna in the western Pacific and provide more bigeye tuna for markets in Hawaii and elsewhere.

In accordance with Federal regulations at 50 CFR part 300, subpart O, vessels that possess both an American Samoa and Hawaii longline permit are not subject to the U.S bigeye tuna limit. Therefore, these vessels may retain bigeye tuna and land fish in Hawaii after the date NMFS projects the fishery would reach that limit. Further, catches of bigeye tuna made by such vessels are attributed to American Samoa, provided the fish was not caught in the U.S. EEZ around Hawaii. In 2017, all dual American Samoa/Hawaii longline permitted vessels were included in the fishing agreement with the CNMI and American Samoa. Therefore, NMFS attributed bigeye catches by those vessels to the two territories.

The 2018 U.S. bigeye tuna catch limit is 3,554 t, which is the same limit in place for 2016 and higher than the limit for 2017. NMFS established this limit through a separate action (83 FR 33851, July 17, 2018). Based on preliminary logbook data, NMFS expects the fishery to reach this limit by mid-October 2018.

Through this action, Hawaii-based longline vessels could potentially enter into one or more fishing agreements with participating territories. This would enhance the ability of these vessels to extend fishing effort in the western and central Pacific Ocean after reaching the 2018 U.S. limit and provide more bigeye tuna for markets in Hawaii. Providing opportunity to land bigeye tuna in Hawaii in the last quarter of the year when market demand is high will result in positive economic benefits for fishery participants and net benefits to the nation. Allowing participating territories to enter into specified fishing agreements under this action provides benefits to the territories by providing funds for territorial fisheries development projects. Establishing a 2,000 t longline limit for bigeye tuna where territories are not subject to Western and Central Pacific Fisheries Commission longline limits is not expected to adversely affect vessels based in the territories.

Historical catch of bigeye tuna by the American Samoa longline fleet has been less than 2,000 t, even including the catch of vessels based in American Samoa, catch by dual permitted vessels that land their catch in Hawaii, and catch attributed to American Samoa from U.S. vessels under specified fishing agreements. With regard to Guam and the CNMI, no longline fishing has occurred since 2011.

Under the proposed action, longline fisheries managed under the FEP are not expected to expand substantially nor change the manner in which they are currently conducted, (i.e., area fished, number of vessels longline fishing, number of trips taken per year, number of hooks set per vessel during a trip, depth of hooks, or deployment techniques in setting longline gear), due to existing operational constraints in the fleet, the limited entry permit programs, and protected species mitigation requirements. The proposed rule does not duplicate, overlap, or conflict with other Federal rules and is not expected to have significant impact on small organizations or government jurisdictions. Furthermore, there would be little, if any, disproportionate adverse economic impacts from the proposed rule based on gear type, or relative vessel size. The proposed rule also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.

For the reasons above, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. As such, an initial regulatory flexibility analysis is not required and none has been prepared.

This action is exempt from review under E.O. 12866.

The Council established the FEPs for American Samoa, the Mariana Archipelago, and Hawaii to conserve and manage fisheries in the US Exclusive Economic Zone (Federal waters) in the Pacific Islands. The Council developed the FEPs, and NMFS implemented the associated regulations, under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Under the National Standard guidelines (50 CFR 600.305 and 600.310) for the Magnuson-Stevens Act, the Council and NMFS manage any fish species or stock that generally is a target of a Federal fishery and caught predominantly in Federal waters. Councils develop fishery management plans for these species (known as management unit species (MUS) that describe the fisheries, essential fish habitat (EFH), the scientific data required for effective implementation of the plan, the data that should be collected from the fisheries, and other required elements. The FEPs specify maximum sustainable yield, optimum yield, and status determination criteria so that overfishing and overfished determinations can be made. The Council and NMFS are also required to set annual catch limits (ACL) and accountability measures (AM) for all MUS, and the FEPs describe the process for specifying ACLs and AMs.

The FEPs have documented that the Council would use the system for classifying certain stocks as ecosystem component species (ECS), based on the criteria outlined in National Standard 1. National Standard 1 describes ECS as stocks that are included in an FEP to achieve ecosystem management objectives, but do not require conservation and management. Once reclassified as ECS, the number of MUS would be reduced from 205 species or families to 11 species in the American Samoa FEP, from 227 species or families to 13 species in the Marianas FEP, and from 173 species or families to 20 species in the Hawaii FEP. Appendix B in the amendment document list the proposed ECS for each area.

For a detailed description of the methods that the Council and NMFS used to identify the species to reclassify from MUS to ECS, please refer to Section 2 of the EA (see ADDRESSES).

The proposed action would change the definitions of MUS and ECS in the FEPs to reflect the Council's recommendations. It would also replace the FEP definitions of Currently Harvested Coral Reef Taxa (CHCRT) and Potentially Harvested Coral Reef Taxa (PHCRT) with Coral Reef ECS. All management measures that allow for the collection of data on EC species and protect the associated role of ECS in the ecosystem, and/or address other ecosystem issues, would be retained. These include permits and fees, reporting and recordkeeping requirements, prohibitions, allowable gear and gear restrictions, notifications, at-sea observer coverage, vessel marking and gear identification, area closures, and quotas, seasons, and minimum sizes for American Samoa and Mariana precious coral ECS. The management measures unique to the CHCRT and PHCRT would be carried forward to the coral reef ECS.

Finally, the proposed action would result in revision or removal of those sections of the FEPs that are not required for ECS, including EFH designations for ECS. The effects of this change on the environment would be minor, however, because the total area designated as EFH would change only for the deep (400-700 m) benthic substrates near Guam, the CNMI, and American Samoa, and reclassification would not change any fishery activities.

NMFS must receive comments on the proposed amendments by October 9, 2018 for consideration in the decision to approve, partially approve, or disapprove the amendments.