Federal Register Vol. 83, No.159,

Please refer to Docket ID NRC-2017-0024 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2017-0024.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2017-0024 in the subject line of your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

The ASME develops and publishes the ASME BPV Code, which contains requirements for the design, construction, and ISI examination of nuclear power plant components, and the ASME OM Code,1 which contains requirements for IST of nuclear power plant components. In response to BPV and OM Code user requests, the ASME develops Code Cases that provide voluntary alternatives to BPV and OM Code requirements under special circumstances.

The NRC approves the ASME BPV and OM Codes in § 50.55a, “Codes and standards,” of title 10 of the Code of Federal Regulations (10 CFR) through the process of incorporation by reference. As such, each provision of the ASME Codes incorporated by reference into, and mandated by § 50.55a constitutes a legally-binding NRC requirement imposed by rule. As noted previously, ASME Code Cases, for the most part, represent alternative approaches for complying with provisions of the ASME BPV and OM Codes. Accordingly, the NRC periodically amends § 50.55a to incorporate by reference the NRC's RGs listing approved ASME Code Cases that may be used as voluntary alternatives to the BPV and OM Codes.2

This proposed rule is the latest in a series of rules that incorporate by reference new versions of several RGs identifying new, revised, and reaffirmed,3 and unconditionally or conditionally acceptable ASME Code Cases that the NRC approves for use. In developing these RGs, the NRC staff reviews ASME BPV and OM Code Cases, determines the acceptability of each Code Case, and publishes its findings in the RGs. The RGs are revised periodically as new Code Cases are published by the ASME. The NRC incorporates by reference the RGs listing acceptable and conditionally acceptable ASME Code Cases into § 50.55a. The NRC published a final rule dated January 17, 2018 (83 FR 2331) that incorporated by reference into § 50.55a the most recent versions of the RGs, which are: RG 1.84, “Design, Fabrication, and Materials Code Case Acceptability, ASME Section III,” Revision 37; RG 1.147, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1,” Revision 18; and RG 1.192, “Operation and Maintenance Code Case Acceptability, ASME OM Code,” Revision 2.

This proposed rule would incorporate by reference the latest revisions of the NRC's RGs that list ASME BPV and OM Code Cases that the NRC finds to be acceptable, or acceptable with NRC-specified conditions (“conditionally acceptable”). Regulatory Guide 1.84, Revision 38, DG-1345, would supersede the incorporation by reference of Revision 37; RG 1.147, Revision 19, DG-1342, would supersede the incorporation by reference of Revision 18; and RG 1.192, Revision 3, DG-1343, would supersede the incorporation by reference of Revision 2.

The ASME Code Cases that are the subject of this proposed rule are the new and revised Section III and Section XI Code Cases as listed in Supplement 11 to the 2010 BPV Code through Supplement 7 to the 2013 BPV Code, and the OM Code Cases published at the same time as the 2017 Edition. Additional Section XI Code Cases published from the 2015 Edition of the BPV Code are also included at the request of the ASME.

The latest editions and addenda of the ASME BPV and OM Codes that the NRC has approved for use are referenced in § 50.55a. The ASME also publishes Code Cases that provide alternatives to existing Code requirements that the ASME developed and approved. This proposed rule would incorporate by reference RGs 1.84, 1.147, and 1.192 allowing nuclear power plant licensees, and applicants for combined licenses, standard design certifications, standard design approvals, and manufacturing licenses under the regulations that govern license certifications, to use the Code Cases listed in these RGs as suitable alternatives to the ASME BPV and OM Codes for the construction, ISI, and IST of nuclear power plant components. The ASME publishes Code Cases in a separate document but at the same time as specific editions of the ASME OM Code. The ASME also publishes BPV Code Cases in a separate document and at a different time than ASME BPV Code Editions. This proposed rule identifies Code Cases by the edition of the ASME BPV Code or ASME OM Code under which they were published by ASME. This proposed rule only accepts Code Cases for use in lieu of the specific editions and addenda of the ASME BPV and OM Codes incorporated by reference in § 50.55a.

The following general guidance applies to the use of the ASME Code Cases approved in the latest versions of the RGs that are incorporated by reference into § 50.55a as part of this proposed rule. Specifically, the use of the Code Cases listed in RGs 1.84, 1.147, and 1.192 are acceptable with the specified conditions when implementing the editions and addenda of the ASME BPV and OM Codes incorporated by reference in 10 CFR 50.55a.

The approval of a Code Case in the NRC's RGs constitutes acceptance of its technical position for applications that are not precluded by regulatory or other requirements or by the recommendations in these or other RGs. The applicant and/or licensee is responsible for ensuring that use of the Code Case does not conflict with regulatory requirements or licensee commitments. The Code Cases listed in the RGs are acceptable for use within the limits specified in the Code Cases. If the RG states an NRC condition on the use of a Code Case, then the NRC condition supplements and does not supersede any condition(s) specified in the Code Case, unless otherwise stated in the NRC condition.

The ASME Code Cases may be revised for many reasons (e.g., to incorporate operational examination and testing experience and to update material requirements based on research results). On occasion, an inaccuracy in an equation is discovered or an examination, as practiced, is found not to be adequate to detect a newly discovered degradation mechanism.

Therefore, when an applicant or a licensee initially implements a Code Case, § 50.55a requires that the applicant or the licensee implement the most recent version of that Code Case, as listed in the RGs incorporated by reference. Code Cases superseded by revision are no longer acceptable for new applications unless otherwise indicated.

Section III of the ASME BPV Code applies only to new construction (i.e., the edition and addenda to be used in the construction of a plant are selected based on the date of the construction permit and are not changed thereafter, except voluntarily by the applicant or the licensee). Hence, if a Section III Code Case is implemented by an applicant or a licensee and a later version of the Code Case is incorporated by reference into § 50.55a and listed in the RG, the applicant or the licensee may use either version of the Code Case (subject, however, to whatever change requirements apply to its licensing basis (e.g., § 50.59)) until the next mandatory ISI or IST update.

A licensee's ISI and IST programs must be updated every 10 years to the latest edition and addenda of ASME BPV Code, Section XI, and the OM Code, respectively, that were incorporated by reference into § 50.55a and in effect 12 months prior to the start of the next inspection and testing interval. Licensees that were using a Code Case prior to the effective date of its revision may continue to use the previous version for the remainder of the 120-month ISI or IST interval. This relieves licensees of the burden of having to update their ISI or IST program each time a Code Case is revised by the ASME and approved for use by the NRC. Code Cases apply to specific editions and addenda, and Code Cases may be revised if they are no longer accurate or adequate, so licensees choosing to continue using a Code Case during the subsequent ISI or IST interval must implement the latest version incorporated by reference into § 50.55a and listed in the RGs.

The ASME may annul Code Cases that are no longer required, are determined to be inaccurate or inadequate, or have been incorporated into the BPV or OM Codes. A Code Case may be revised, for example, to incorporate user experience. The older or superseded version of the Code Case cannot be applied by the licensee or applicant for the first time.

If an applicant or a licensee applied a Code Case before it was listed as superseded, the applicant or the licensee may continue to use the Code Case until the applicant or the licensee updates its construction Code of Record (in the case of an applicant, updates its application) or until the licensee's 120-month ISI or IST update interval expires, after which the continued use of the Code Case is prohibited unless NRC authorization is given under § 50.55a(z). If a Code Case is incorporated by reference into § 50.55a and later a revised version is issued by the ASME because experience has shown that the design analysis, construction method, examination method, or testing method is inadequate; the NRC will amend § 50.55a and the relevant RG to remove the approval of the superseded Code Case. Applicants and licensees should not begin to implement such superseded Code Cases in advance of the rulemaking.

The Code Cases discussed in Table I are new, revised or reaffirmed Code Cases in which the NRC is not proposing any conditions. The table identifies the draft regulatory guide listing the applicable Code Case that the NRC proposes to approve for use.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0710; Product Identifier 2018-NM-079-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2018-05, dated January 23, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. The MCAI states:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0758; Product Identifier 2018-NM-093-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0123, dated June 4, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A350-941 airplanes. The MCAI states:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0711; Product Identifier 2018-NM-062-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

We received reports indicating uncommanded movement of the captain's and first officer's seats. In one instance, a Boeing Model 777 airplane operator reported that the captain's seat could not be locked in position after the horizontal position of the seat was adjusted in flight. The seat became unlocked from the track and moved freely forward and aft, and the first officer assumed the controls for approach and landing. An inspection found the horizontal actuator output shaft on the seat had broken, resulting in an inability to prevent forward and aft seat movement or lock the seat in position. A broken horizontal actuator output shaft may be the result of high loads beyond the design limits, a stalled motor due to high mechanical resistance during operation of the seat, or foreign object debris in the seat tracks.

Because Boeing Model 757 airplanes use the same seats in the flight deck, we are proposing this AD to prevent uncommanded movement of the captain's and first officer's seats, which could lead to reduced controllability of the airplane. We plan similar actions for other Boeing airplanes using the same seats in the flight deck.

We reviewed Boeing Special Attention Service Bulletin 757-25-0308, Revision 1, dated June 7, 2018. This service information describes procedures for repetitive horizontal actuator identifications, repetitive checks of the HMS, a detailed inspection of the HMS, as applicable, and applicable on-condition actions. On-condition actions include an overhaul of the HMS and checks of the HMS.

We reviewed Boeing Special Attention Service Bulletin 757-25-0309, Revision 1, dated July 2, 2018. This service information describes procedures for a general visual inspection to determine the seat part numbers on the captain's and first officer's seats, and, for seats with certain part numbers, a manual override cable adjustment check of the captain's and first officer's seats, and applicable on-condition actions. On-condition actions include moving the adjustment nut, tightening the lock nut, and readjusting the control lever.

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

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

This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-25-0308, Revision 1, dated June 7, 2018, and Boeing Special Attention Service Bulletin 757-25-0309, Revision 1, dated July 2, 2018, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD, and except as explained under “Differences Between Proposed AD and Service Information” in this NPRM.

For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0711.

Although Boeing Special Attention Service Bulletin 757-25-0309, Revision 1, dated July 2, 2018, recommends accomplishing the actions “within 72 months,” we have determined that this compliance time will not ensure that the identified unsafe condition is addressed in a timely manner. In developing an appropriate compliance time for this AD, we considered the manufacturer's recommendation, as well as the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the modifications. In light of all of these factors, we find a compliance time of 36 months for completing the required actions is warranted, in that it represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. This difference has been coordinated with Boeing.

We estimate that this proposed AD affects 17 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

Certain configurations of captain's and first officer's seats may require special tooling to align the seats. Special tooling for one set of captain's and first officer's seats will cost $22,000, and a certain other set will cost $23,000. If an operator owns both combinations of seats, the special tooling will cost up to $45,000 per operator.

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

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

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

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

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

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

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

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

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

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

On July 16, 2015, HUD published in the Federal Register its Affirmatively Furthering Fair Housing (AFFH) final rule.1 The principal AFFH regulations are codified in 24 CFR part 5, subpart A, with other AFFH related regulations codified in 24 CFR parts 91, 92, 570, 574, 576, and 903. The stated purpose of the AFFH final rule was to provide HUD program participants with a revised planning approach to assist them in meeting their legal obligation to affirmatively further the purposes and policies of the Fair Housing Act. Since issuance of the final rule, however, HUD has concluded that the current regulations are ineffective in helping program participants to meet this obligation. The highly prescriptive regulations give participants inadequate autonomy in developing fair housing goals as suggested by principles of federalism. Additionally, the current regulations are ineffective in addressing the lack of adequate housing supply, which has particular adverse impact on protected classes under the Fair Housing Act. Finally, evidence from peer-reviewed literature indicates that the positive outcomes of policies focused on deconcentrating poverty are likely limited to certain age and demographic groups 2 and are difficult to implement at scale and without disrupting local decision making. HUD reached these determinations for the following reasons:

1. Ineffectiveness of assessment tools. Under the AFFH rule, HUD program participants are required to use an Assessment Tool to conduct and submit an Assessment of Fair Housing (AFH) to HUD. Because of the variations in the HUD program participants subject to the AFFH rule, HUD went through a process to develop three separate assessment tools: One for local governments, one for public housing agencies (PHAs), and one for States and Insular Areas.

There are currently no approved assessment tools that are available for program participants to use. The different assessment tools are unavailable for different reasons. A final State and Insular Area Assessment Tool has not yet been developed by HUD. In the case of the Assessment Tool for use by PHAs, HUD published a Federal Register notice on January 13, 2017,3 announcing that the Assessment Tool was not yet available for use by PHAs because the HUD data needed to make the Assessment Tool workable was not yet available. HUD announced the availability of a Local Government Assessment Tool in a Federal Register notice published on December 31, 2015 4 and renewal of the Tool in a Federal Register notice published on January 13, 2017.5

Since publication of the January 13, 2017, notice, HUD became aware of significant deficiencies in the Local Government Assessment Tool impeding completion and acceptance of meaningful assessments by program participants. Accordingly, HUD withdrew the Local Government Assessment Tool in a Federal Register notice published on May 23, 2018.6 As more fully explained in the May 23, 2018, withdrawal notice, HUD's decision was informed by its review of the initial round of AFH submissions that were developed using the Local Government Assessment Tool. This review led HUD to conclude that the Tool is unworkable based upon: (1) The high failure rate from the initial round of submissions; and (2) the level of technical assistance HUD provided to this initial round of 49 AFHs, which cannot be scaled up to accommodate the increase in the number of local government program participants with AFH submission deadlines in 2018 and 2019. Specifically, 63% of the initial 49 AFH submissions (31/49) were not accepted on initial submission. HUD returned 35% of these (17/49) as unacceptable. Many other AFH submissions (28% or 14/49) were accepted only after the program participants submitted revisions and additional information in the form of addendums in response to HUD's technical assistance. Interested readers are referred to the May 23, 2018, Federal Register notice for additional explanation regarding HUD's withdrawal of the Local Government Assessment Tool.

2. Public comments on HUD regulatory reform efforts. The request for comments contained in this ANPR is also consistent with HUD's efforts to carry out the Administration's regulatory reform efforts. On May 15, 2017, HUD published a Federal Register notice consistent with Executive Orders 13771, “Reducing Regulation and Controlling Regulatory Costs,” and 13777, “Enforcing the Regulatory Reform Agenda,” inviting public comments to assist HUD in identifying existing regulations that may be outdated, ineffective, or excessively burdensome.7 HUD received 299 comments in response to the Notice, and 136 (45% of the total) discussed the AFFH rule.

While some of the comments expressed support for the AFFH rule, most of the comments were critical of the rule and cited its complexity and the costs associated with completing an AFH. The commenters wrote that the final rule fails to consider critical factors for program participants, such as the scarcity of available resources and other program priorities. Many of these commenters complained that the estimates contained in the final rule regarding the amount of time it would take to complete an AFH were unrealistically low. Small PHAs, in particular, wrote that compliance with the rule would result in their incurring large expenses. Other commenters complained that the rule is overly prescriptive. Still others noted deficiencies with the data program participants are required to rely on in completing their AFHs.

As HUD begins the process of developing a proposed rule to amend the existing AFFH regulations, it is soliciting public comment on changes that will: (1) Minimize regulatory burden while more effectively aiding program participants to meet their legal obligations; (2) create a process that is focused primarily on accomplishing positive results, rather than on performing analysis of community characteristics; (3) provide for greater local control and innovation; (4) seek to encourage actions that increase housing choice, including through greater housing supply; and (5) more efficiently utilize HUD resources.

While the following list is not exhaustive, HUD is particularly interested in comments on the following questions:

1. What type of community participation and consultation should program participants undertake in fulfilling their AFFH obligations? Do the issues under consideration in affirmatively furthering fair housing merit separate, or additional, public participation and consultation procedures than those already required of program participants in preparing their annual plans for housing and community development (i.e., the Consolidated Plan, Annual Action Plan, or PHA Plan)? Conversely, should public input on AFFH be included as part of the Consolidated Plan/PHA Plan public involvement process?

2. How should the rule weigh the costs and benefits of data collection and analysis? Should the proposed rule allow program participants to develop or use the data of their choice? Alternatively, should HUD require the use of a uniform data set by all program participants in complying with their AFFH obligation? Should it vary by the nature of the program participant? Instead of a data-centric approach, should jurisdictions be permitted to rely upon their own experiences? If the latter, how should HUD assess this more qualitative approach?

3. How should PHAs report their AFFH plans and progress? Should jurisdictions be required to provide a detailed report of the analysis performed or only summarize the goals? How often should program participants be required to report on their AFFH efforts? Should the proposed rule retain or revise the current timeframes for required AFFH submissions? Should program participants continue reporting annually on their AFFH actions and results in their program plans and annual performance reports or, given the long-term nature of many AFFH goals, should the reporting period be longer? Should planning and/or results be integrated into existing report structures, such as Consolidated Plans and Consolidated Annual Performance and Evaluation Reports (CAPERs), or utilize an alternative structure?

4. Should the proposed rule specify the types of obstacles to fair housing that program participants must address as part of their AFFH efforts, or should program participants be able to determine the number and types of obstacles to address? Should HUD incentivize program participants to collaborate regionally to identify and address obstacles to affirmatively furthering fair housing, without holding localities accountable for areas outside of their control? Should HUD incentivize grantees and PHAs to collaborate in the jurisdiction and the region to remove fair housing obstacles? What are examples of obstacles that the AFFH regulations should seek to address? How might a jurisdiction accurately determine itself to be free of material obstacles?

5. How much deference should jurisdictions be provided in establishing objectives to address obstacles to identified fair housing goals, and associated metrics and milestones for measuring progress?

6. How should HUD evaluate the AFFH efforts of program participants? What types of elements should distinguish acceptable efforts from those that should be deemed unacceptable? What should be required of, or imposed upon, jurisdictions with unacceptable efforts (other than potential statutory loss of Community Development Block Grant, HOME, or similar funding sources)? How should HUD address PHAs whose efforts to AFFH are unacceptable?

7. Should the rule specify certain levels of effort on specific actions that will be deemed to be in compliance with the obligation to affirmatively further the purposes and policies of the Fair Housing Act (i.e., “safe harbors”), and if so, what should they be?

8. Are there any other revisions to the current AFFH regulations that could help further the policies of the Fair Housing Act, add clarity, reduce uncertainty, decrease regulatory burden, or otherwise assist program participants in meeting their AFFH obligations?

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

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

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

On March 27, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm).1 Promulgation of a revised NAAQS triggers a requirement for EPA to designate areas of the country as nonattainment, attainment, or unclassifiable for the standards. For the ozone NAAQS, this also involves classifying any nonattainment areas at the time of designation.2 Ozone nonattainment areas are classified based on the severity of their ozone levels (as determined based on the area's “design value,” which represents air quality in the area for the most recent 3 years). The classifications for ozone nonattainment areas are marginal, moderate, serious, severe, and extreme.3

Areas that EPA designates nonattainment for the ozone NAAQS are subject to certain requirements, including the general nonattainment area planning requirements of CAA section 172 and the ozone-specific nonattainment planning requirements of CAA section 182. Ozone nonattainment areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. For marginal areas, a state is required to submit a baseline emissions inventory, adopt provisions into the SIP requiring emissions statements from stationary sources in the area, and implement a nonattainment new source review (NSR) program for the relevant ozone NAAQS.4 For moderate areas, a state needs to comply with the marginal area requirements, plus additional moderate area requirements, including the requirement to submit a modeled demonstration that the area will attain the NAAQS as expeditiously as practicable but no later than 6 years after designation, the requirement to submit an RFP plan, the requirement to adopt and implement certain emissions controls, such as RACT and I/M, and the requirement for greater emissions offsets for new or modified major stationary sources under the state's nonattainment NSR program.5

On June 11, 2012,6 EPA designated the Chicago area as a marginal nonattainment area for the 2008 ozone NAAQS. The Chicago area includes Cook, DuPage, Kane, Lake, McHenry, and Will Counties and part of Grundy and Kendall Counties in Illinois; Lake and Porter Counties in Indiana; and the eastern portion of Kenosha County in Wisconsin. On May 4, 2016,7 pursuant to section 181(b)(2) of the CAA, EPA determined that the Chicago area failed to attain the 2008 ozone NAAQS by the July 20, 2015, marginal area attainment deadline and thus reclassified the area from marginal to moderate nonattainment. In that action, EPA established January 1, 2017, as the due date for all moderate area nonattainment plan SIP requirements applicable to newly reclassified areas.

Wisconsin submitted a SIP revision on April 17, 2017, and supplemental information on January 23, 2018, to address the moderate nonattainment area requirements for the Wisconsin portion of the Chicago area for the 2008 ozone NAAQS. The submission contained several nonattainment plan elements, including a revised 2011 base year emissions inventory for the two ozone-forming precursor pollutants, volatile organic compounds (VOC) and NOX, a 15% RFP plan, a 3% RFP contingency measure plan, 2017 and 2018 VOC and NOX MVEBs, and an enhanced I/M program certification. The submission also included an attainment demonstration, a nonattainment NSR certification, and a VOC RACT certification, which will be addressed in a separate action(s).

CAA sections 172(c)(3) and 182(a)(1), 42 U.S.C. 7502(c)(3) and 7511a(a)(1), require states to develop and submit, as SIP revisions, comprehensive, accurate, and complete emissions inventories for all areas designated as nonattainment for the ozone NAAQS. An emissions inventory for ozone is an estimation of actual emissions of VOC and NOX from all sources located in the relevant designated nonattainment area. For the 2008 ozone NAAQS, EPA has recommended that states use 2011 as a base year for the emissions estimates.8 EPA approved on March 7, 2016,9 the 2011 base year emissions inventory, which Wisconsin submitted on November 14, 2014, for the Wisconsin portion of the Chicago area. In its April 17, 2017, submission, supplemented on January 23, 2018, Wisconsin included a revised 2011 base year emissions inventory submission. Relative to its original inventory, Wisconsin's revised 2011 base year emissions inventory modifies the emissions estimates for the point, on-road mobile, and non-road mobile sector, with emissions estimates for the area source sector remaining unchanged.

The methodology differences between Wisconsin's modified inventory and original inventory are summarized in Table 1 and the emissions difference are shown in Table 2. Relative to the original inventory, the modified inventory includes a more conservative (worst-case) emissions estimate from the one electric generating unit (EGU) in the Wisconsin portion of the area. Wisconsin estimated the modified inventory on-road emissions using the Motor Vehicle Emissions Simulator (MOVES) model version 2014a, whereas it estimated the original inventory on-road mobile sector emissions with an older version of the model—MOVES version 2010b. Finally, Wisconsin estimated the modified inventory non-road mobile sector “MAR” emissions, which include commercial marine, aircraft, and rail locomotive, using EPA's 2014 National Emissions Inventory (NEI) version 2 and it estimated the “non-MAR” emissions, which are the non-road mobile emissions sources excluding commercial marine, aircraft, and rail locomotive, using MOVES 2014a, whereas the original inventory relied on the older NEI version 1 and National Mobile Inventory Model (NMIM), respectively. Because the modifications to the original EPA-approved inventory are based on updated resources and information as summarized above, EPA finds the updated inventory approvable and is proposing to approve the revised 2011 base year emissions inventory as a revision to the Wisconsin SIP.

The CAA requires that states with areas designated as nonattainment for ozone achieve RFP toward attainment of the ozone NAAQS. CAA section 172(c)(2) contains a general requirement that nonattainment plans must provide for emission reductions that meet RFP. For areas classified moderate and above, section 182(b)(1) imposes a more specific RFP requirement that a state had to meet through a 15% reduction in VOC emissions from the baseline anthropogenic emissions within 6 years after November 15, 1990. The state must meet the 15% requirement by the end of the 6-year period, regardless of when the nonattainment area attains the NAAQS. As with other nonattainment plan requirements for more recent iterations of the ozone NAAQS, EPA has promulgated regulations and guidance to interpret the statutory requirements of the CAA.

EPA's final rule to implement the 2008 ozone NAAQS (SIP Requirements Rule),10 addressed, among other things, the RFP requirements as they apply to areas designated nonattainment and classified as moderate for the 2008 ozone NAAQS.11 EPA interprets the 15% VOC emission reduction requirement in CAA section 182(b)(1) such that a state that has already met the 15% requirement for VOC for an area under either the 1-hour ozone NAAQS or the 1997 8-hour ozone NAAQS would not have to fulfill that requirement through reductions of VOC again. Instead, EPA is interpreting CAA section 172(c)(2) to require states with such areas to obtain 15% ozone precursor emission reductions (VOC and/or NOX) over the first 6 years after the baseline year for the 2008 ozone NAAQS. Wisconsin previously met the 15% VOC reduction requirement of CAA section 182(b)(1) for Kenosha County for the 1-hour ozone NAAQS.12 Therefore, the state may rely upon NOX and/or VOC emissions reductions to meet the RFP requirement for the 2008 ozone NAAQS.

EPA's SIP Requirements Rule indicates the base year for the 2008 ozone NAAQS, for which areas were designated nonattainment effective July 20, 2012, can be 2011 or a different year of the states' choosing.13 However, EPA required that states selecting a pre-2011 alternate baseline year must achieve 3% emission reductions each year after the initial 6-year period has concluded up to the beginning of the attainment year. For a multi-state area, states must agree on the same base year. Wisconsin, Illinois, and Indiana have all selected the EPA-recommended base year of 2011.

States may not take credit for VOC or NOX reductions occurring from sources outside the nonattainment area for purposes of meeting the 15% RFP and 3% RFP requirements of CAA sections 172(c)(2), 182(b)(1) and (c)(2)(B). Wisconsin's 15% RFP represents emissions reductions which occurred in Wisconsin's portion of the nonattainment area in the time period from 2011 to 2017 thereby satisfying this requirement.

Except as specifically provided in CAA section 182(b)(1)(D) of the CAA, all state control measures approved into the SIP or Federal measures that provide emissions reductions that occur after the baseline emissions inventory year are creditable for purposes of the RFP requirements, provided that the reductions meet the standard requirements for creditability which include being enforceable, quantifiable, permanent, and surplus in terms of not having previously been counted toward RFP.

States must also include contingency measures in their nonattainment plans. The contingency measures required for areas classified as moderate and above under CAA sections 172(c)(9) and 182(c)(9) must provide for the implementation of specific measures if the area fails to attain or to meet any applicable RFP milestone. The state must submit these measures for approval by EPA into the SIP as adopted measures that would take effect without further rulemaking action by the state or EPA upon a determination that an area failed to attain or to meet the applicable milestone. Per EPA guidance for purposes of the ozone NAAQS, contingency measures should represent one year's worth of RFP progress, amounting to reductions of at least 3% of the baseline emissions inventory for the nonattainment area. The purpose of the contingency measures is to provide additional emission reductions in the event of a failure to attain or meet any applicable milestone, which would occur while the state is revising its SIP for the area.14

Regarding the contingency measures, EPA's prior guidance for purposes of the ozone NAAQS specifies that some portion of the contingency measures must include VOC reductions. This previous limitation is no longer necessary in all areas. In particular, EPA has concluded that states with nonattainment areas classified moderate and above that have already completed the initial 15% VOC reduction required by CAA section 182(b)(1)(A)(i), can meet the contingency measures requirement based entirely on NOX controls if that is what the state's analyses have demonstrated would be most effective in bringing the area into attainment. There is no minimum VOC requirement. Also, EPA is continuing its long-standing policy that allows promulgated Federal measures to be used as contingency measures as long as they provide emission reductions in the relevant years in excess of those needed for attainment or RFP.15

Wisconsin submitted documentation showing that emission reductions in the Wisconsin portion of the Chicago area met the 15% RFP and 3% contingency requirements. Table 3 shows Wisconsin's estimated reductions from all sectors. Table 3 shows that the area's total VOC emissions decreased by 13.04% from 2011 to 2017 and 2.20% from 2017 to 2018. Table 3 shows the area's total NOX emissions decreased by 15.41% from 2011 to 2017 and 2.25% from 2017 to 2018.

Wisconsin is able to meet the RFP and RFP contingency requirements entirely through Federal permanent and enforceable control measures within the mobile source sectors. Table 4 specifically contains the calculations showing Wisconsin's mobile source emissions reductions meet the RFP and RFP contingency requirements. The MOVES model for the on-road and non-road sectors assumed increases of 11-13% in vehicle or equipment population and usage while projecting a 34-41% reduction in ozone precursor emissions from 2011 to 2017. The estimated emissions reductions, therefore, cannot be attributed to reductions in source activity. Table 4 shows that of the 14.95% total VOC reductions from 2011-2018, 14.63% 16 came from the mobile sector. Table 4 also shows that of the 17.31% total NOX reductions from 2011-2018, 15.77% came from the mobile sector. Wisconsin is choosing to count 5% VOC reductions and 10% NOX reductions from 2011-2017 to meet the 15% RFP requirement, and 1% VOC reductions and 2% NOX reductions from 2011-2018 to meet the 3% RFP contingency requirement. In other words, 6% VOC reductions and 12% NOX reductions for a total of 18% to satisfy the 15% RFP and 3% RFP contingency requirements.

The MOVES model incorporates a number of Federal emissions control programs into its projections. These emissions reduction measures are permanent and enforceable and are implemented everywhere, including in the nonattainment area. Tables 5 and 6 list the Federal permanent and enforceable control programs modeled by the MOVES model for the on-road sector and the non-road sector, respectively.

These emissions reductions are surplus, meaning that Wisconsin has not previously claimed them for the purposes of other ozone NAAQS requirements. These emission reductions are also permanent, enforceable, and occurred during the 6-year attainment planning time period, which started with the 2011 base year. Wisconsin has demonstrated that these emissions reductions result in at least an 18% reduction (15% for RFP and 3% for the RFP contingency measure requirements, respectively) from the 2011 base year inventory emissions net of growth (and including a MVEB safety margin of 7.5% which will be discussed in more detail below). Thus, EPA is proposing to approve these emissions reductions as satisfying the 15% RFP and 3% RFP contingency measure requirements for the moderate nonattainment plan for the Wisconsin portion of the Chicago area for the 2008 ozone NAAQS.

EPA notes that the measures Wisconsin is relying upon to meet the contingency measures requirement are already implemented. Contingency measures may include Federal measures and local measures already scheduled for implementation, as long as the resulting emission reductions are in excess of those needed for attainment or to meet RFP in the nonattainment plan. EPA interprets the CAA not to preclude a state from implementing such measures before they are triggered by a failure to meet RFP or failure to attain. For more information on contingency measures, see the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (April 16, 1992, 57 FR 13498, 13510) and the 2008 Ozone Implementation Rule (March 6, 2015, 80 FR 12264, 12285).

The appropriateness of relying on already-implemented reductions to meet the contingency measures requirement has been addressed in two Federal circuit court decisions. See Louisiana Environmental Action Network (LEAN) v. EPA, 382 F.3d 575, 586 (5th Cir. 2004), Bahr v. United States EPA, 836 F.3d 1218 (9th Cir. 2016), cert. denied, 199 L. Ed. 2d 525, 2018 U.S. LEXIS 58 (Jan. 8, 2018). EPA believes that the language of section 172(c)(9) and 182(c)(9) is ambiguous with respect to this issue, and that it is reasonable for the agency to interpret the statutory language to allow approval of already implemented measures as contingency measures, so long as they meet other parameters such as providing excess emissions reductions that the state has not relied upon to meet RFP or for attainment in the nonattainment plan for the NAAQS at issue. Until the Bahr decision, under EPA's longstanding interpretation of CAA section 172(c)(9) and 182(c)(9), states could rely on control measures that were already implemented (so called “early triggered” contingency measures) as a valid means to meet the Act's contingency measures requirement. The Ninth Circuit decision in Bahr leaves a split among the Federal circuit courts, with the Fifth Circuit upholding the Agency's interpretation of section 172(c)(9) to allow early triggered contingency measures and the Ninth Circuit rejecting that interpretation. The Seventh Circuit in which Wisconsin is located has not addressed the issue, nor has the Supreme Court or any other circuit court other than the Fifth and Ninth.

Because there is a split in the Federal circuits on this issue, EPA expects that states located in circuits other than the Ninth may elect to rely on EPA's longstanding interpretation of section 172(c)(9) allowing early triggered measures to be approved as contingency measures, in appropriate circumstances. EPA's revised Regional Consistency regulations pertaining to SIP provisions authorize the Agency to follow this interpretation of section 172(c)(9) in circuits other than the Ninth. See 40 CFR part 56. To ensure that early triggered contingency measures appropriately satisfy all other relevant CAA requirements, the EPA will carefully review each such measure, and intends to consult with states considering such measures early in the attainment plan development process.

As shown above, the emissions reductions projected through 2018 are sufficient to meet the requirements for contingency measures, consistent with EPA's interpretation of the CAA to allow approval of already implemented control measures as contingency measures in states outside the Ninth Circuit. Therefore, we propose approval of the contingency measures submitted by the state in the nonattainment plan for the Wisconsin portion of the Chicago area.

Under section 176(c) of the CAA, new transportation plans, programs, or projects that receive Federal funding or support, such as the construction of new highways, must “conform” to (i.e., be consistent with) the SIP. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. Under the CAA, states are required to submit, at various times, control strategy plans for nonattainment areas and maintenance plans for areas that qualify for redesignation to attainment of the ozone standards (maintenance areas).18 These control strategy plans (including reasonable further progress plans and attainment plans for purposes of the ozone NAAQS) and maintenance plans must include MVEBs for the relevant criteria pollutant or its precursor pollutants (VOC and NOX for ozone) to address pollution from on-road transportation sources. The MVEBs are the portion of the total allowable emissions that are allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will meet an RFP milestone or provide for attainment or maintenance of the NAAQS.19 The MVEB serves as a ceiling on emissions from an area's planned transportation system.20

When reviewing submitted control strategy or maintenance plan submissions, EPA must affirmatively find that the MVEBs contained therein are adequate for use in determining transportation conformity. Once EPA affirmatively finds that the submitted MVEBs are adequate for transportation purposes, then the MVEBs must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.

EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: public notification of a SIP submission; provision for a public comment period; and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004.21 Additional information on the adequacy process for transportation conformity purposes is available in a June 30, 2003, proposed rule titled, “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes.” 22

On January 16, 2015, Wisconsin submitted an early progress SIP submission with MVEBs for its portion of the Chicago 2008 ozone nonattainment area. On April 1, 2015, EPA found Wisconsin's MVEBs adequate for use in transportation conformity determinations.23 As part of its nonattainment plan submitted on April 17, 2017, and supplemented on January 23, 2018, Wisconsin submitted new 2017 and 2018 NOX and VOC MVEBs, which are lower than Wisconsin's previous MVEBs found adequate by EPA. Wisconsin's 2017 and 2018 MVEBs include a safety margin that Wisconsin applied in the form of a 7.5% greater mobile source activity than actually projected for 2017 and 2018, respectively. By applying this additional 7.5% on the front end of the analysis, Wisconsin's MOVES model output estimates of NOX and VOC emissions for 2017 and 2018 include a built-in safety margin. States typically do this in an effort to accommodate future variations in travel demand models and vehicle miles traveled forecast. As shown in Table 4 above, Wisconsin has demonstrated that the Wisconsin portion of the Chicago area can meet the 15% RFP and 3% RFP contingency measure emission reduction requirements for the 2008 ozone NAAQS with mobile source (onroad + nonroad) emissions, which include an onroad budget of 1.56 tpsd VOC and 3.05 tpsd NOX in 2017 and 1.44 tpsd VOC and 2.75 tpsd NOX in 2018 (Table 7 below), and these emissions will remain under 2017 and 2018 RFP plus contingency measure target levels, even with the inclusion of the added 7.5% safety margin.

Wisconsin's 2017 and 2018 MVEBS were developed as part of an interagency consultation process which includes Federal, state, and local agencies. The MVEBS were clearly identified and precisely quantified. These MVEBs, when considered together with all other emissions sources, are consistent with the 15% RFP and 3% contingency measure emission reduction requirements for the 2008 8-hour ozone NAAQS for this area. Therefore, EPA is proposing to approve Wisconsin's revised 2017 and 2018 MVEBs into the Wisconsin SIP. If EPA finalizes this approval, these MVEBs will replace the MVEBs previously established for the 2008 ozone NAAQS early progress plan and Wisconsin must use these updated MVEBs for future transportation conformity determinations for the Wisconsin portion of the Chicago nonattainment area. The 2017 and 2018 MVEBs are listed in Table 7.

The requirement to adopt a motor vehicle I/M program for moderate ozone nonattainment areas is described in CAA section 182(b)(4) and the regulations for basic and enhanced I/M programs are found at 40 CFR part 51, subpart S. Under these cumulative requirements, states with areas classified as moderate nonattainment for ozone with 1990 Census-defined urbanized populations of 200,000 or more are required to adopt basic I/M programs, while serious and higher classified ozone nonattainment areas outside of the northeast ozone transport region with 1980 Census-defined urbanized populations of 200,000 or more are required to adopt enhanced I/M programs. The Chicago area meets the criteria for mandatory I/M under the 2008 ozone NAAQS and the Wisconsin portion of the Chicago area is already operating an enhanced I/M program due to being designated nonattainment and classified as serious or above under an earlier ozone NAAQS. EPA initially approved on August 16, 2001,24 Wisconsin's I/M program and later approved on September 19, 2013,25 revisions to Wisconsin's I/M program. Wisconsin's approved enhanced I/M program in the SIP is consistent with the requirements of 40 CFR part 51, subpart S for the alternate low enhanced performance standards. In its April 17, 2017, submission, Wisconsin certified that it still meets the Federal enhanced I/M performance requirement. Therefore, EPA is proposing to find that Wisconsin has met the I/M requirement for its portion of the Chicago area for the 2008 ozone NAAQS.

Section 182(f) of the CAA requires RACT level controls for major stationary sources of NOX located in moderate ozone nonattainment areas. “RACT” is defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.26 Section 302 of the CAA defines a major stationary source as any facility which has the potential to emit 100 tons per year of any air pollutant. EPA approved Wisconsin's NOX RACT program into the SIP on October 19, 2010,27 for purposes of the 1997 ozone NAAQS. Wisconsin's NOX RACT requirements are codified at NR 428.20 to 428.26 of the Wisconsin Administrative Code. Wisconsin's NOX RACT rules are applicable to major stationary sources of NOX located in Wisconsin's moderate ozone nonattainment areas, including Kenosha County. The only major source of NOX in the portion of Kenosha County that is designated nonattainment for the 2008 ozone NAAQS is Wisconsin Electric Power Company, D/B/A We Energies-Pleasant Prairie Power Plant. This source has selective catalytic reduction (SCR) technology for controlling NOX emissions from each of its two coal-fired boilers and has been subject to an emission limit of 0.10 pounds of NOX per Million British Thermal Unit (MMBTU) since May 1, 2009. Because Wisconsin has EPA-approved NOX RACT rules applicable to Kenosha County sources in its SIP, and EPA considers the current control technology and limit at the major stationary source in the 2008 ozone NAAQS nonattainment portion of Kenosha County to be RACT for NOX, EPA is proposing to find that Wisconsin has satisfied the NOX RACT requirements for its moderate nonattainment plan for the 2008 ozone NAAQS for the Wisconsin portion of the Chicago nonattainment area, which is the portion of Kenosha County inclusive and east of Highway 94.

For marginal ozone nonattainment areas, states must adopt SIP provisions requiring emissions statements from stationary sources of VOC and NOX.28 States may waive this requirement for sources emitting less than 25 tons per year of VOC and less than 25 tons per year of NOX.29 Under NR 438 of the Wisconsin Administrative Code, Wisconsin requires annual NOX and VOC emission reporting from any facility in the state that emits NOX above 10,000 pounds (5 tons) per year and VOC above 6,000 pounds (3 tons) per year. This includes facilities in nonattainment areas such as the Wisconsin portion of the Chicago nonattainment area for the 2008 ozone NAAQS. EPA previously approved NR 438 into the Wisconsin SIP on December 6, 1993.30

As part of a moderate ozone nonattainment plan, states should certify that the proper emissions statement reporting requirements are in place. If an area has a previously approved emission statement provision in the SIP in force for the 1997 ozone NAAQS or the 1-hour ozone NAAQS that covers all portions of the nonattainment area for the 2008 ozone NAAQS, then such rule should be sufficient for purposes of the emissions statement requirement for the 2008 ozone NAAQS. The state should review the existing rule to ensure it is adequate and, if it is, may rely on it to meet the emission statement requirement for the 2008 ozone NAAQS. In cases when an existing emission statement requirement is still adequate to meet the requirements of the implementation rule for the 2008 ozone standard, states can provide the rationale for that determination to EPA in a written statement in its SIP submission to meet this requirement.31

In a separate submission to EPA on August 15, 2016, Wisconsin included a certification that its emissions statement provision in the SIP is still adequate to meet the requirements for the Wisconsin portion of the Chicago 2008 ozone nonattainment area. In Wisconsin's January 23, 2018, supplemental submission to EPA regarding Wisconsin's moderate area ozone nonattainment plan for the Chicago area, Wisconsin requested that EPA act on its August 15, 2016, emission statement certification as part of the action on Wisconsin's nonattainment plan elements included in this proposal. Because Wisconsin has an EPA approved SIP provision requiring stationary sources to report annually their NOX and VOC emissions at least as high as 25 tons per year for each precursor, EPA proposes that Wisconsin has satisfied the emissions statement requirement for its nonattainment plan for the Chicago area for the purposes of the 2008 ozone NAAQS.

EPA is proposing to approve revisions to Wisconsin's SIP pursuant to section 110 and part D of the CAA and EPA's regulations because Wisconsin's April 17, 2017, nonattainment plan submissions and January 23, 2018, supplement along with a prior submission on August 15, 2016, satisfy the emission inventory, RFP, RFP contingency measure, NOX RACT, emissions statement, I/M, and transportation conformity requirements for the Wisconsin portion of the Chicago area for the 2008 ozone NAAQS.

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

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

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

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

On March 13, 2017, Ohio submitted revisions to the Ohio Administrative Code Chapter 3745-18 (OAC 3745-18), effective on February 16, 2017, for incorporation by EPA into the Ohio SO2 SIP. OAC 3745-18 contains Ohio's air emission regulations for SO2, which include both statewide requirements and emission limits for each Ohio county. This submittal was the product of a comprehensive examination of the state's SO2 rules which Ohio undertook in accordance with its routine five-year rule review process. The state made a number of revisions to OAC 3745-18, updating facility data to match the current information in its operating permits database and removing requirements which only applied to facilities which have closed or units which have been removed from existing facilities. For several sources, Ohio retained the existing limits in OAC 3745-18, but separately issued federally enforceable permits containing tighter limits than those in the rule, or new provisions reflecting physical changes at the facility. Generally, these permits addressed changes which had occurred too late to include in the state's rulemaking action. The effect of EPA's approval of the revised OAC 3745-18 SIP rules submitted on March 13, 2017, would be to retain federal enforceability of both sets of limits for each source.

Ohio's March 13, 2017 submittal also included rules which Ohio had developed to address Clean Air Act (CAA) requirements for three 1-hour SO2 nonattainment areas. Ohio first adopted these new rules, which are found in OAC 3745-18-03, OAC 3745-18-04, OAC 3745-18-47, and OAC 3745-18-49, on October 13, 2015, and submitted the rules to EPA as part of the state's October 13, 2015, nonattainment SIP submittal. Later, Ohio made significant revisions and corrections to some of the nonattainment area rules. The state adopted the revised nonattainment area rules on February 6, 2017, and submitted them to EPA on March 13, 2017, within Ohio's larger five-year rule review package. EPA is proposing action on Ohio's entire March 13, 2017 submittal of revisions to OAC 3745-18, regarding their incorporation into the state's SO2 SIP. Separate action will address whether Ohio's revisions to OAC 3745-18-03, OAC 3745-18-04, OAC 3745-18-47, and OAC 3745-18-49 satisfy EPA's nonattainment planning requirements.

Ohio's federally approved SO2 SIP contains six generally applicable chapters of OAC 3745-18 and 88 county-specific chapters. The six generally applicable chapters are OAC 3745-18-01, “Definitions and incorporation by reference,” OAC 3745-18-02, “Ambient air quality standards; sulfur dioxide,” OAC 3745-18-03, “Attainment dates and compliance time schedules,” OAC 3745-18-04, “Measurement methods and procedures,” OAC 3745-18-05, “Ambient and meteorological monitoring requirements,” and OAC 3745-18-06, “General emission limit provisions.” Specific emission limits for SO2 sources in each Ohio county are found in OAC 3745-18-07 (“Adams county emission limits”) through OAC 3745-18-94 (“Wyandot county emission limits”).

Ohio's March 13, 2017 SIP revision request included revised versions of all of these rules except OAC 3745-18-02 and OAC 3745-18-06. Ohio's federally approved SO2 SIP currently includes OAC 3745-18-02, “Ambient air quality standards; sulfur dioxide,” with an effective date of January 23, 2006. However, Ohio rescinded this rule in 2009 and moved its contents to a new rule. See section II E. for the discussion of EPA's proposed action regarding OAC 3745-18-02. Ohio's federally approved SO2 SIP also includes OAC 3745-18-06, with an effective date of February 17, 2011. Ohio did not submit any revisions to this rule. Therefore, the 2011 version of this rule is retained in Ohio's SIP.

Ohio's March 13, 2017 submittal updated OAC 3745-18 with current information for each listed facility, as confirmed by the state database. Some Ohio facilities have merged or changed ownership in recent years. Ohio updated the rules where necessary to reflect each facility's current name or ownership and the current location of the emission units that are subject to SO2 emission limits. Ohio removed some facilities entirely from the site-specific emission limit listings if the state had evidence confirming that the entire facility has closed, or that all the emission units at the facility which were subject to the site-specific emission limits have been removed or are no longer emitting SO2. If a facility's site-specific emission limits were removed, but the facility is still operating and could be subject to its general countywide limit, Ohio retained the facility's listing in the compliance date section of OAC 3745-18-03.

OAC 3745-18-01 contains definitions and references to test methods and other Federal requirements. Ohio updated the Code of Federal Regulations publication dates in this rule. EPA is proposing to approve OAC 3745-18-01.

OAC 3745-18-03 contains the compliance dates and schedules applicable to Ohio SO2 sources. Ohio has removed and reserved OAC 3745-18-03(A), which required attainment with the NAAQS by specific dates, because the county-specific attainment dates in OAC 3745-18-03(A)(2) have passed and Ohio found the requirements in OAC 3745-18-03(A)(1) duplicative of language in other state and Federal documents. Since the attainment date language was no longer contained in the rule, Ohio retitled OAC 3745-18-03 “Compliance time schedules.” Ohio added paragraphs in OAC 3745-18-03(B) and OAC 3745-18-03(C) which apply to sources in the Lake County nonattainment area and the Steubenville WV-OH interstate nonattainment area. These paragraphs are discussed below in section II C. EPA is proposing to approve OAC 3745-18-03.

OAC 3745-18-04 contains fuel test method requirements for Ohio facilities. Ohio revised OAC 3745-18-04 to update facility names and locations for sources with facility-specific coal test method requirements. Ohio removed facility-specific or county-specific coal test methods where they were no longer necessary, because the affected facilities are no longer operating, no longer using coal, or currently using other methods, such as a continuous emission monitoring system (CEMS), for determining compliance.

Ohio added one paragraph and removed another paragraph in OAC 3745-18-04(D), which are applicable to sources in the Lake County nonattainment area and the Steubenville WV-OH interstate nonattainment area. These paragraphs are discussed below in section II C.

Several paragraphs in OAC 3745-18-04 have not been previously approved by EPA, because they appeared to allow compliance determinations based on 30-day averaged emission calculations for emission limits which were intended to address NAAQS with averaging times of 24 hours and less. These paragraphs, OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6) and OAC 3745-18-04(E)(2), (E)(3) and (E)(4), have not been significantly revised in Ohio's March 13, 2017 submittal. As the previously identified deficiencies have not been adequately addressed, EPA proposes to take no action on these provisions, and they are not part of the SIP.1

In the March 13, 2017 submittal, OAC 3745-18-04(D)(9)(c) contains a typographical error which misnames the required method for coal sampling and analysis for facilities in Butler County. OAC 3745-18-04(D)(9)(c) was approved into Ohio's SO2 SIP without the typographical error on January 31, 2002 (67 FR 4669). EPA proposes to take no action on the March 13, 2017 submittal of OAC 3745-18-04(D)(9)(c). The paragraph will instead be retained in Ohio's SO2 SIP as it was previously approved.

Ohio made minor grammatical changes to OAC 3745-18-05, which covers requirements for ambient monitoring. EPA proposes to find these changes approvable.

Most of Ohio's county-specific rules, OAC 3745-18-07 through OAC 3745-18-94, have been updated significantly. Ohio removed facility-specific emission limits where the affected facilities have closed, or where the units which were subject to the previously approved rules have been retired or have converted to use lower sulfur fuels. Ohio confirmed the facilities' current emissions and emission limitations with its operating permits database. Each county-specific rule has retained its previously approved general SO2 emission limit, applicable to all coal-fired steam generating units in the county. CAA section 110(l) states that SIP revisions cannot be approved if they interfere with applicable requirements concerning attainment and reasonable further progress. EPA proposes to find that it is permissible under CAA section 110(l) to approve the revised rules in Ohio's March 13, 2017 SIP submittal where Ohio has removed obsolete emission limits for units which have permanently closed and for which the permits to operate have been revoked, as these rule revisions do not indicate permission to increase emissions.

On August 5, 2013, EPA designated three areas nonattainment for SO2 in Ohio: Lake County, the Muskingum River area, and the Steubenville OH-WV interstate area. Ohio was required to prepare SIPs which would bring its three SO2 nonattainment areas into attainment by October 4, 2018. After evaluating local SO2 emissions and using dispersion models to determine the emission limits which could be expected to provide for attainment, Ohio revised its SO2 SIP rules to address SO2 sources within these nonattainment areas at OAC 3745-18-49 (Lake County) and OAC 3745-18-47 (Jefferson County). Ohio added related provisions in OAC 3745-18-03 and OAC 3745-18-04. Ohio first adopted these nonattainment area provisions in October 2015, but later made significant revisions and corrections to the rules. Ohio adopted the revised rules on February 6, 2017, and submitted them to EPA on March 13, 2017.

The new and revised rules relevant to the Lake County nonattainment area include OAC 3745-18-03(B)(9), OAC 3745-18-03(C)(11), OAC 3745-18-04(D)(10), OAC 3745-18-49(F), OAC 3745-18-03(C)(3)(hh), and the removal of the previously approved paragraph OAC 3745-18-49(G). Ohio revised the Lake County rule at OAC 3745-18-49(F) to add new emission limits for the Painesville Municipal Electric Plant in Painesville, Ohio (the Painesville plant). OAC 3745-18-49(F) restricts the Painesville plant to operate only one of its three boilers on coal at any time; limits Boiler 5 to 287 pounds of SO2 per hour (lb/hr), averaged over 30 operating days; and limits Boilers 3 and 4 each to 340 lb/hr, averaged over 30 operating days. The combined average operating rate for the three boilers must not exceed 249 million British Thermal Units per hour (MMBtu/hr) for any calendar day, excluding heat input from burning natural gas or biomass. Each boiler is additionally limited to no more than a ten percent annual capacity factor as defined in 40 CFR 63.7575, excluding heat input from burning natural gas or biomass. The rule also defines biomass as an additional fuel source for this facility; the biomass would not be a significant source of SO2. The revisions to OAC 3745-18-49(F) represent a reduction in allowable SO2 emissions and operating rates for this facility.

Ohio added OAC 3745-18-03(B)(9) to require the Painesville plant to apply for a permit or permit modification to provide for compliance with its site-specific SO2 emission limits. Ohio added OAC 3745-18-03(C)(11) to require compliance with the revised site-specific rules for the Painesville plant as of thirty days from February 16, 2017, which is the effective date of the revised rules OAC 3745-18-03(C)(11) and OAC 3745-18-49(F). The Painesville plant's compliance date is the earliest compliance date practicable after Ohio revised the facility's previously adopted rules to address an issue EPA identified in Ohio's 2015 nonattainment SIP submittal for Lake County. Ohio added OAC 3745-18-04(D)(10) to provide the method for calculating compliance with the Painesville plant's revised emission limits in OAC 3745-18-49(F).

Ohio has removed the entry at OAC 3745-18-49(G) for the Eastlake Power Plant in Willoughby, Ohio (now known as the Eastlake Substation), because the boilers at the Eastlake Substation which were subject to OAC 3745-18-49(G) were permanently shut down in April 2015. OAC 3745-18-03(C)(3)(hh) still requires any remaining emission units at the Eastlake Substation to comply with the county-wide SO2 limits at OAC 3745-18-49(A). The shut-down units, however, may not restart without applying for a new permit. Because the Eastlake Substation has permanently retired its boilers and has thus significantly reduced its SO2 emissions, and because the Eastlake Substation no longer holds a permit to restart the boilers, EPA proposes to find that the removal from the SIP of the Eastlake Substation's boiler limits is permissible under CAA section 110(l).

EPA is proposing to approve the rule revisions in OAC 3745-18 which apply to the Painesville plant and the Eastlake Substation in Lake County, because the rules update the SIP and strengthen it by reducing allowable emissions. EPA is not proposing action regarding whether Ohio's revisions to OAC 3745-18-49 and related material satisfy nonattainment planning requirements for the Lake County nonattainment area. EPA intends to address whether Ohio has satisfied the nonattainment planning requirements for the Lake County nonattainment area in a separate action.

The rules relevant to the Muskingum River nonattainment area include OAC 3745-18-64 (Morgan County), OAC 3745-18-90 (Washington County) and OAC 3745-18-03(C)(3)(tt). The previously approved rules OAC 3745-18-64(B) and OAC 3745-18-90(B) contained identical SO2 emission limits for the Muskingum River power plant, located near Waterford, Ohio (the Muskingum River plant). The boilers at the Muskingum River plant were permanently shut down as of July 14, 2015, leaving no emission units at the Muskingum River plant which are subject to OAC 3745-18-64(B) or OAC 3745-18-90(B). These units have been removed from the facility's permit. The shut-down units may not restart unless the facility applies for and receives a new permit. Therefore, Ohio has removed the entries for the Muskingum River plant from OAC 3745-18-64(B) and OAC 3745-18-90(B). Ohio retained and renumbered paragraph OAC 3745-18-03(C)(3)(tt) for the Muskingum River plant and updated the facility's name to Muskingum River Development, LLC. OAC 3745-18-03(C)(3)(tt) requires any remaining SO2 emission units at the facility to comply with the limits specified in OAC 3745-18-90, which, as revised, contains only the Washington County general SO2 limit for coal-fired steam generating units at OAC 3745-18-90(A). Because the Muskingum River plant has permanently retired its large boilers and has thus significantly reduced its SO2 emissions, and because the Muskingum River plant no longer holds a permit to restart the boilers, EPA proposes to find that the removal from the SIP of the Muskingum River plant's boiler emission limits is permissible under CAA section 110(l). EPA is proposing to approve the rule revisions applicable to the Muskingum River plant because they update Ohio's SO2 SIP by removing obsolete emission limits while complying with CAA section 110(l). EPA is not proposing action regarding whether Ohio's revisions to OAC 3745-18-64(B), OAC 3745-18-90(B) and related material satisfy nonattainment planning requirements for the Muskingum River nonattainment area. EPA intends to address whether Ohio has satisfied the nonattainment planning requirements in a subsequent action.

The new and revised rules relevant to the Steubenville OH-WV interstate nonattainment area include the new paragraphs at OAC 3745-18-03(B)(9) and OAC 3745-18-03(C)(11), the revised emission limits in OAC 3745-18-47, and the removal of OAC 3745-18-04(D)(4). Ohio addressed three Jefferson County sources for the Steubenville nonattainment area: The Cardinal Power Plant in Brilliant, Ohio (the Cardinal plant), the Mingo Junction Steel Works, LLC facility in Mingo Junction, Ohio (Mingo Junction Steel Works), and the Mingo Junction Energy Center, LLC facility in Mingo Junction, Ohio, (Mingo Junction Energy Center). Ohio revised OAC 3745-18-47(D) for the Cardinal plant to limit each of units 1 and 2 to 1.065 pounds of SO2 per million British Thermal Units (lb/MMBtu) actual heat input. These limits, which reflect current permit conditions for the Cardinal plant, represent an SO2 emission reduction from the previously approved limits for the Cardinal plant, which had allowed 7.08 lb/MMBtu at units 1 and 2. Ohio also revised the emission limit for the Cardinal plant's unit 3 to 0.66 lb/MMBtu actual heat input and moved the listing to OAC 3745-18-47(D). Unit 3 had previously been listed under OAC 3745-18-47(O) as a unit operated by Buckeye Power, Incorporated, with a limit of 2.0 lb/MMBtu. EPA is proposing to approve these rule revisions because they update the Ohio SO2 SIP and strengthen it by reducing allowable SO2 emissions.

For Mingo Junction Steel Works, which was formerly listed in OAC 3745-18-47(G) as Wheeling-Pittsburgh Steel, Steubenville South Plant, Ohio has removed the obsolete emission limits in OAC 3745-18-47(G)(1) for Boilers 1 through 12 and the obsolete emission limits in OAC 3745-18-47(G)(2) for the forty-four-inch soaking pits combusting coke oven gas. The boilers have shut down and the Mingo Junction Steel Works no longer receives or uses coke oven gas as fuel; it now uses natural gas. Ohio added limits of 1.0 lb/hr for the facility's reheat furnaces 2 to 4 at OAC 3745-18-47(G)(3), a limit of 105.0 lb/hr for the electric arc furnace number 1 at OAC 3745-18-47(G)(4), and a limit of 14.0 lb/hr for the ladle metallurgical furnace to the electric arc furnace at OAC 3745-18-47(G)(5). EPA is proposing to approve these rule revisions because they update the Ohio SO2 SIP to reflect the current facility name and operations at Mingo Junction Steel Works. EPA is also proposing to approve OAC 3745-18-47(G) because it strengthens the SIP by reducing allowable emissions.

For the Mingo Junction Energy Center, the state has added OAC 3745-18-47(P) which limits units 1 to 4 to 0.0028 lb/MMBtu actual heat input each. This limit reflects a fuel change from coke oven gas to natural gas. EPA is proposing to approve this rule revision because it strengthens the Ohio SO2 SIP by reducing allowable emissions.

Ohio added OAC 3745-18-03(B)(9) to require Mingo Junction Steel Works and the Mingo Junction Energy Center to apply for a permit or permit modification to provide for compliance with their site-specific SO2 emission limits. (Cardinal's revised limits are already in its permit.) Ohio added OAC 3745-18-03(C)(11) to require compliance with the revised site-specific rules for the Cardinal plant, Mingo Junction Steel Works and the Mingo Junction Energy Center by January 1, 2017. This compliance date reflects the recommendations of EPA's nonattainment SIP guidance.

Ohio removed OAC 3745-18-04(D)(4), which gave a specific compliance test method for the Cardinal plant. The provision is no longer considered necessary due to the Cardinal plant's current limits, operations, and emission controls. The Cardinal plant is subject to the federally approved compliance test requirements in OAC 3745-18-04(D). Under its current operating permit, the Cardinal plant uses CEMS to determine compliance with its permitted emission limits.

EPA is proposing to approve the revised rules for the Cardinal plant, Mingo Junction Steel Works and the Mingo Junction Energy Center as measures which update the state's SO2 SIP and strengthen the SIP by reducing allowable emissions. EPA is not proposing action regarding whether Ohio's revisions to OAC 3745-18 for the Cardinal plant, Mingo Junction Steel Works and the Mingo Junction Energy Center, and related material, satisfy nonattainment planning requirements for the Steubenville OH-WV interstate nonattainment area. EPA intends to address whether Ohio has satisfied the nonattainment planning requirements for the Steubenville WV-OH nonattainment area in a subsequent action.

Ohio revised OAC 3745-18-24(V) regarding the Medical Center Company, located in Cleveland, to update the facility's operating unit names and to remove emission limits for units which have not been present at the facility since 2002. The Medical Center Company has recently replaced two boilers, 1N and 2N, with three new units having lower SO2 emissions. Ohio placed new requirements in a 2015 federally enforceable permit-to-install for the Medical Center Company, stating that the old boilers must be permanently retired by January 13, 2017. See final permit-to-install number P0118541. Ohio relied on the emission reductions from this boiler replacement during the designation process for the 2010 SO2 NAAQS. However, the Cuyahoga County rule at OAC 3745-18-24, as adopted February 6, 2017, and submitted to EPA on March 13, 2017, retained the Medical Center Company's previously approved emission limit of 4.6 lb/MMBtu for each of the old boilers. Although the rule retained the previously approved limit, the facility's boiler closure requirement and the lower SO2 emission limits applicable to its new units are federally enforceable in the facility's permit. EPA is proposing to approve the revised OAC 3745-18-24(V) as an update to the SIP, since this action would retain EPA's authority to enforce both limits.

Likewise, the emission limits for Cleveland Thermal, LLC, at OAC 3745-18-24(G) and OAC 3745-18-24(H), have been updated to revise the facility's name, address, and premise number, and to remove emission limits for units which shut down prior to 2002. The updated rules still contain limits for several units, B101, B102, B104, B001, B002, B003, B005, and B006, which Cleveland Thermal, LLC, was to retire or convert to auxiliary status by January 2017, in accordance with a consent decree. The consent decree is in force and Cleveland Thermal, LLC's federally enforceable permit no longer includes these units. EPA is proposing to approve the revised OAC 3745-18-24(G) and OAC 3745-18-24(H) as an update to the SIP, since this action would retain EPA's authority to enforce both limits.

The remainder of the Cuyahoga County rule has been revised to update facility names and locations and to remove emission limits for facilities which were no longer operating and for units which no longer operate at existing facilities. EPA is proposing to approve OAC 3745-18-24.

Ohio revised the Lorain County rule at OAC 3745-18-53(B) for the Avon Lake Power Plant (the Avon Lake plant) in Lorain County, to update facility identification and remove emission limits for units which were shut down between 1981 and 1997. In November 2016, Ohio placed new SO2 emission limits for the Avon Lake plant in a federally enforceable operating permit. The new limits, which were effective as of January 13, 2017, provided a combined emission limit of 1.59 lb/MMBtu for Boilers 10 and 12 on a 30-day average basis. See permit-to-install number P0121748. Ohio relied on these limits, which reduced the Avon Lake plant's allowable SO2 emissions, during the designation process for the 2010 SO2 NAAQS. However, the Lorain County rule, as adopted February 6, 2017, and submitted to EPA on March 13, 2017, retained the Avon Lake plant's previously approved emission limit of 4.65 lb/MMBtu for Boilers 10 and 12 each. Although the revised rule retained the previous, higher emission limit, the tighter SO2 emission limits within the Avon Lake plant's operating permit are federally enforceable. EPA is proposing to approve OAC 3745-18-53(B), since this action would retain EPA's authority to enforce both limits.

Ohio added paragraph OAC 3745-18-53(G) for U.S. Steel Seamless Tubular Operations, LLC—Lorain. This paragraph covers an emissions unit which was previously listed under OAC 3745-18-53(D), but has been transferred to a new location and a new owner within the city of Lorain, Ohio. The unit retains its previously approved emission limits of 1.98 lb/MMBtu and 178 lb/hr.

The remainder of the Lorain County rule has been revised to update facility names and locations, and to remove emission limits for facilities which were no longer operating and for units which no longer operate at existing facilities. EPA is proposing to approve OAC 3745-18-53.

Ohio revised the Ross County rule at OAC 3745-18-77(B) for the P. H. Glatfelter Company-Chillicothe Facility (Glatfelter) in Ross County, to update facility identification and remove emission limits for units which have been shut down for many years. In 2016, Ohio placed a new facility-wide SO2 emission limit of 1,800 tons per year, effective January 13, 2017, in a federally enforceable permit for Glatfelter. See permit-to-install number P0118906. This limit reduced Glatfelter's allowable SO2 emissions, and Ohio relied on this limit during the designation process for the 2010 SO2 NAAQS. However, the Ross County rule, as adopted February 6, 2017, and submitted to EPA on March 13, 2017, retained Glatfelter's previously approved emission limit of 9.9 lb/MMBtu for Boilers 7 and 8 each. Although the rule retains the higher emission limit for Boilers 7 and 8, the tighter SO2 emission limit in Glatfelter's permit is federally enforceable. EPA is proposing to approve OAC 3745-18-77(B) as an update to the SIP, since this action would retain EPA's authority to enforce both limits.

The remainder of the Ross County rule has been revised to remove emission limits for facilities which were no longer operating and for units which no longer operate at existing facilities. EPA is proposing to approve OAC 3745-18-77.

In 2016, Ohio placed a new facility-wide SO2 emission limit of 1,475 tons per year, effective January 13, 2017, in a federally enforceable operating permit for the Department of Public Utilities, City of Orrville, Ohio facility (the Orrville plant) in Wayne County. See permit number P0120280. Ohio relied on this limit, which reduced the Orrville plant's allowable SO2 emissions, during the designation process for the 2010 SO2 NAAQS. The Wayne County rule at OAC 3745-18-91, as adopted February 6, 2017, and submitted to EPA on March 13, 2017, updated the Orrville plant's facility identification but retained the Orrville plant's previously approved emission limit of 7.0 lb/MMBtu for Boilers 10 to 13 each (OAC 3745-18-91(E)). Since the Orrville plant's tighter SO2 emission limit in its permit is federally enforceable, EPA is proposing to approve OAC 3745-18-91(E) as an update to the SIP, since this action would retain EPA's authority to enforce both limits.

In 2015, Ohio revised the federally enforceable permit for Morton Salt, Inc., in Rittman, Ohio, to reflect the facility's replacement of two boilers with new units with lower SO2 emissions. See permit number P0120758. Ohio relied on this boiler replacement and the resulting reduction in allowable SO2 emissions during the designation process for the 2010 SO2 NAAQS. The Wayne County rule at OAC 3745-18-91, as adopted February 6, 2017, and submitted to EPA on March 13, 2017, updated Morton Salt, Inc.'s facility identification but retained the facility's previously approved emission limit of 7.0 lb/MMBtu for Boilers 1 and 2 each (OAC 3745-18-91(F)). Since Morton Salt, Inc. has replaced its old boilers, and has federally enforceable SO2 emission limits for its new units in its permit, EPA is proposing to approve OAC 3745-18-91(F) as an update to the SIP, since this action would retain EPA's authority to enforce both limits.

The remainder of the Wayne County rule has been revised to remove emission limits for facilities which were no longer operating and for units which no longer operate at existing facilities. EPA is proposing to approve OAC 3745-18-91.

On September 17, 2009, Ohio submitted revisions to its SIP, and requested that EPA remove OAC 3745-18-02, “Ambient air quality standards; sulfur dioxide,” from the SIP, because Ohio had rescinded OAC 3745-18-02 and moved its contents to a new rule, OAC 3745-25-02, “Ambient air quality standards,” effective April 18, 2009. This rule defined and listed the primary and secondary SO2 standards (prior to the 2010 SO2 NAAQS) and required ambient air quality sampling using the EPA Reference Method or an equivalent method. In accordance with Ohio's September 17, 2009, SIP revision request, EPA approved OAC 3745-25-02 into Ohio's SIP on October 26, 2010 (75 FR 65572), but EPA did not remove OAC 3745-18-02 from the SIP. Ohio's rule OAC 3745-25-02(B), effective on April 18, 2009, contained substantially identical rule language to the existing SIP version of OAC 3745-18-02 which was effective on January 23, 2006. As the rule language which was previously approved as OAC 3745-18-02 can now be found within Ohio's federally approved SIP at OAC 3745-25-02(B), the removal of rule OAC 3745-18-02 from the SIP is permissible under section 110(l) of the CAA. Therefore, EPA proposes to remove OAC 3745-18-02 from Ohio's SIP.

EPA is proposing to approve Ohio's March 13, 2017 submittal of OAC 3745-18-01; OAC 3745-18-03; OAC 3745-18-04 [with the exception of OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-04(E)(2), (E)(3) and (E)(4)]; OAC 3745-18-05; and OAC 3745-18-07 through OAC 3745-18-94; as effective on February 16, 2017. EPA proposes to find that these regulations update and strengthen the Ohio SO2 SIP. EPA proposes to take no action on OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-04(E)(2), (E)(3) and (E)(4). EPA proposes to remove OAC 3745-18-02 from the Ohio SO2 SIP.

In this 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 Ohio rules OAC 3745-18-01; OAC 3745-18-03; OAC 3745-18-04 [with the exception of OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-04(E)(2), (E)(3) and (E)(4)]; OAC 3745-18-05; and OAC 3745-18-07 through OAC 3745-18-94, as effective on February 16, 2017. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

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

Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

EPA is proposing to approve Iowa's request to redesignate the Council Bluffs area to attainment for the 2008 Pb NAAQS. On September 18, 2017, the state submitted a request for redesignation that demonstrates NAAQS attainment and an associated maintenance plan to ensure that the area continues to attain the standard. Based on its review of the state's submittal which is described in detail in the following sections, EPA proposes to approve the redesignation request for the area and associated maintenance plan.

On October 15, 2008, EPA promulgated a revision to the Pb NAAQS, lowering the standard from 1.5 micrograms per cubic meter (µg/m3) to 0.15 µg/m3 (73 FR 66963). The state began air monitoring for Pb on November 3, 2009, at a source-oriented monitor in the Council Bluffs area near the Griffin Pipe Products Company, LLC (Griffin Pipe) facility. The 2010 through 2012 design value for Pb at the monitor was 0.26 µg/m3, violating the 2008 Pb NAAQS.

Effective December 31, 2011, EPA designated a portion of Pottawattamie County, Council Bluffs, Iowa, as nonattainment for the 2008 Pb NAAQS (76 FR 72097). On February 3, 2015, the Iowa Department of Natural Resources (IDNR) submitted a plan to bring the area back into attainment of the standard. EPA approved the state's SIP revision in a Federal Register notice dated February 26, 2016 (81 FR 9770). The area attained the 2008 Pb NAAQS by the statutory deadline of December 31, 2016. The 2014 through 2016 design value for the area is 0.10 µg/m3.

The mechanisms to enforce the attainment SIP revision are an Administrative Consent Order between Griffin Pipe and the state, and an air construction permit issued to Alter Metal Recycling, the adjacent facility that provided scrap metal to Griffin Pipe. On May 3, 2014, Griffin Pipe ceased operations. The approved attainment SIP revision includes two operational strategies for Griffin Pipe, options A and B. Under option A, the facility resumes operations with operational control measures to limit emissions. Option B provides for the permitting and installation of a baghouse to control emissions and less operating restrictions. To date, Griffin Pipe has not resumed operations of its Council Bluffs facility, but the emissions controls for either option to resume manufacturing are permanent and enforceable.

Alter Metal Recycling continues to operate its facility under an air construction permit which contains a Reasonably Available Control Technology (RACT) limit and work practice standards in the form of paving and sweeping cleaning haul routes with a HEPA vacuum street sweeper. Also, Alter's construction permit contains limitations on truck traffic and total materials shipped are not to exceed 946,000 tons per rolling twelve-month period. In its construction permit, Alter is required to conduct silt sampling on haul routes internal to the facility boundaries at three locations to demonstrate that the silt content on roadways is less than 2.70 g/m2. The facility is not required to sweep if there has been 0.2 inches of rain within a twenty-four-hour period, the haul routes have not been used that day, or the weather is too hazardous to conduct sweeping (e.g., ice or snow). Alter's permit restricts truck traffic speeds on internal haul routes to twenty miles per hour. Recordkeeping to document haul route sweeping and weather conditions if sweeping is not conducted is required to be maintained for two years.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided the following criteria are met: (1) The Administrator 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); (3) the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area under section 110 and part D of title I of the CAA.

For designating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). EPA is proposing to determine that the portions of Pottawattamie County, Council Bluffs, Iowa, that previously violated the 2008 Pb NAAQS are now attaining it.

According to 40 CFR part 50, appendix R, the 2008 Pb NAAQS is met at a monitoring site when the identified design value is valid and is less than or equal to 0.15 µg/m3. The form of the standard is based on the maximum three-month rolling average over a three-year period (thirty-six rolling calendar quarters, or thirty-eight total months). The design value is the highest Pb concentration recorded for a rolling three-month calendar quarter over a three-year period. The area has not recorded a Pb value at the air monitor greater than 0.15 µg/m3 during any rolling three-month calendar quarter since December 2012. As discussed above, the 2014 through 2016 design value, which is the three-year period for which valid data are available at this time, is 0.10 µg/m3.

As discussed above, EPA approved the state's SIP revision in a Federal Register rulemaking dated February 26, 2016 (81 FR 9770). EPA believes that the state has met all of the requirements for approval of the state's attainment SIP revision. The requirements of the attainment SIP revision remain fully enforceable, including contingency measures in the event that the air monitor would record a future violation for the area.

For redesignating a nonattainment area to attainment, section 107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reduction in emissions resulting from implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable reductions. EPA proposes to find that Iowa has demonstrated that the observed air quality improvement in the Council Bluffs area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP.

The Council Bluffs Pb nonattainment SIP included an Administrative Consent Order between IDNR and Griffin Pipe dated January 29, 2015, and an air construction permit for Alter Metal Recycling dated September 2, 2014. Griffin Pipe is no longer operating at its Council Bluffs facility, which reduces the amount of Pb measured at the air monitor. In both scenarios, options A or B, under which Griffin Pipe may resume operations, there are emissions limitations and work practice controls that are expected to maintain NAAQS attainment. Both scenarios include haul road sweeping and cleaning, implementation of a scrap management plan to minimize the amount of Pb materials introduced to the melting process, and the use of Best Management Practices to control fugitive dust. The major difference between the two options is that option A employs more stringent production limits to control emissions; whereas, option B allows for greater production, but requires the facility to install a baghouse for greater emissions control. IDNR modeled both options and both demonstrate attainment of the standard. Thus, despite the uncertainty of whether Griffin Pipe will resume operations, EPA believes that the emissions reductions imposed by the approved SIP revision will continue to be permanent and enforceable.

With regard to Alter Metal Recycling, the fugitive dust re-entrained by traffic along the haul routes within the facility is controlled by an air construction permit. The construction permit requires, among other things, paving of haul routes for truck traffic within the facility boundaries, limits on the hours of operation, a posted speed limit of twenty miles per hour to control re-entrainment of dust, and work practice standards that include sweeping haul routes using a HEPA filter vacuum truck. EPA believes that Alter's air construction permit provides permanent and enforceable controls on fugitive Pb dust emissions.

In conjunction with its redesignation request submitted to EPA on September 18, 2017, IDNR also submitted a maintenance plan to provide for the ongoing attainment of the 2008 Pb NAAQS for at least ten years following the effective date of approval of the redesignation SIP revision. EPA believes the maintenance plan meets the requirements of section 175A of the CAA. Section 175A of the CAA establishes requirements for maintenance plans for seeking redesignation from nonattainment to attainment. EPA's interpretation of section 175A is contained in a September 4, 1992, Memorandum from John Calcagni, Director (at that time), Air Quality Management Division, to the directors of the air programs in the ten EPA regions. The Calcagni Memorandum provides guidance on the content of a maintenance plan, explaining that it should address five requirements: (1) An emissions inventory; (2) a maintenance demonstration; (3) an air quality monitoring commitment; (4); verification of continued attainment; and (5) a contingency plan. The following provides a discussion of how EPA believes the state's maintenance plan meets the requirements of 175A.

The state is required to develop an inventory of actual emissions to identify the level of emissions sufficient to attain the NAAQS. Since Griffin Pipe is currently idled, IDNR provided an analysis of potential to emit (PTE) rather than actual emissions, because it believes the actuals are an underestimation. For Griffin Pipe, IDNR estimates PTE to be 0.254 tpy for option A and 0.392 tpy for option B based on the allowable emissions in the Administrative Consent Order. For Alter Metal Recycling, IDNR estimates that its current PTE is 0.61 tpy based on the allowable emissions in its air construction permit. EPA believes the state has satisfied the requirement to develop an attainment inventory.

The state may generally demonstrate maintenance of the 0.15 ug/m3 standard by either showing that future Pb emissions will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the 2008 Pb NAAQS. The demonstration should be for a period of ten years following the redesignation, e.g., until 2028 for the maintenance plan update.

The state demonstrates attainment of the standard using the attainment inventory since it is based on maximum permitted allowable emissions and Pb emissions are not expected to increase over the maintenance period. Further, IDNR relied on the attainment plan modeling submitted in 2015 as a part of the EPA approved SIP. Dispersion modeling is a more sophisticated means of demonstrating maintenance because it incorporates meteorology, topography, and source characteristics in addition to permitted allowable emissions rates. The attainment demonstration modeling followed current EPA guidance, used the EPA-approved modeling software, AERMOD, and maximum permitted emissions rates. No significant changes in modeling inputs have occurred since its submittal and none are anticipated through the maintenance period. Therefore, EPA finds that the state has demonstrated that Iowa has demonstrated maintenance of the 2008 Pb NAAQS.

Once an area has been redesignated, the state has committed in its Redesignation Request and Maintenance Plan for the Pb Nonattainment Area in Council Bluffs, Iowa, that it will continue to operate the air quality monitor (site ID 19-155-0011) in accordance with 40 CFR part 58. Air modeling has shown this monitoring location to be in the predicted area of maximum impact from fugitive emissions from both Griffin Pipe and Alter Metal Recycling. Thus, this air monitoring location continues to be acceptable for verifying continued NAAQS attainment. The state will continue to operate a Pb monitor at this location for a minimum of ten years. As required by section 175A, eight years following redesignation, the state shall submit an additional maintenance plan. The Pb monitoring network will be revisited at that time.

The state has the legal authority to enforce and implement the requirements of Administrative Consent Order for Griffin Pipe and the construction permit for Alter Metal Recycling to ensure ongoing attainment of the 2008 Pb NAAQS. These SIP-approved documents contain the permanent and enforceable measures for controlling Pb emissions. Should another source of Pb emissions to air seek a permit in the area to construct a new source or modify an existing one, the state will evaluate on a case-by-case basis the potential impacts to air quality and NAAQS attainment. State law also gives IDNR the ability to establish more stringent emissions standards and/or the ability to require the installation of additional control equipment to ensure the attainment or maintenance of the NAAQS.

The state commits in its maintenance plan to continue to operate its Pb monitoring site to verify the attainment status of the area and will continue to follow the air monitoring network review process, as required by 40 CFR part 58, to determine the adequacy of the Pb monitoring network when monitoring may be discontinued.

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation to attainment. The state has established a trigger that will initiate a timely response to indications of a possible future violation of the 2008 Pb NAAQS: It will evaluate the need for additional control measures if any three-month rolling average concentration of 0.14 ug/m3(approximately 95 percent of the standard) or greater is measured at the ambient air monitor. The state will require that any necessary measures be implemented as expeditiously as practicable. IDNR has the authority (Iowa Code 455B.134) to issue orders consistent with rules to cause the abatement or control of air pollution to ensure that the NAAQS are not violated. The approach of using a trigger at approximately 95 percent of the standard is expected, along with the previously approved SIP control measures, to ensure maintenance of the standard.

Contingency measures in the approved attainment SIP revision dated February 26, 2016 (81 FR 9770) remain available and enforceable. If a NAAQS violation occurs after redesignation, at a minimum the IDNR will require the implementation of all measures, including the contingency measures, contained in the nonattainment plan for the area prior to the redesignation of the area to attainment. The nonattainment plan contingency measures for Griffin Pipe are specified in conditions A-5, paragraph O, and B-5, paragraph O, of the Administrative Order on Consent (2015-AQ-02). The contingency measures for Alter Metal Recycling are specific in condition 14.L of its air construction permit (14-A-521). These contingency measures include, for example, additional haul road sweeping/cleaning requirements.

The state also has the authority to request or conduct new or supplemental reviews of Pb emissions from sources and activities affecting the nonattainment area. Contingency measures may include improvements to permitted control devices, or improvements to work practice standards, such as additional haul route sweeping. Once determined, the state will submit to EPA an analysis to demonstrate that the proposed measures are adequate to return the area to attainment.

Section 110(a)(2) of title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques; provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality; and programs to enforce the limitations. These requirements include, but are not limited to, the following: (1) Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; (2) provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; (3) implementation of a source permit program and provisions for the implementation of a Prevention of Significant Deterioration (PSD) program; (4) provisions for the implementation of Nonattainment New Source Review (NSR); (5) provisions for air pollution modeling; and (6) provisions for public and local agency participation in planning and emission control rule development.

The requirements for the area to have enforceable emissions limitations and other control measures as well as an appropriate air monitoring program for collecting air quality data were met in the approved attainment SIP revision dated February 26, 2016 (81 FR 9770). As ambient air monitoring data demonstrate, the means and methods of the attainment SIP revision have been successful in restoring air quality to attainment with the NAAQS.

The other requirements of section 110(a)(2) pertain to the administration of the state program to ensure the effectiveness of its overall air quality management program. The adequacy of the remaining elements of section 110(a)(2) including the state's PSD and Nonattainment NSR programs, its ability to conduct air modeling and provisions for public participation in air planning are addressed in EPA's November 14, 2015 final approval of the state's infrastructure SIP revision (80 FR 48791). In EPA's final approval of the state's infrastructure SIP revision for the 2008 Pb NAAQS, program elements necessary to ensure the enforcement and maintenance of air quality standards were determined to be adequate to meet the requirements of section 110(a)(2).

Finally, section 107(d)(3)(E)(v) requires that the redesignation plan meet the requirements of part D. Section 172(c)identifies key provisions that states must address in a nonattainment SIP, including: (1) Provisions for attainment and the timely implementation of all reasonably available control technology (RACT) and reasonably available control measures (RACM); (2) reasonable further progress (RFP); (3) an emissions inventory for the nonattainment area; (4) Nonattainment NSR; (5) a control strategy with enforceable limits and schedules and timetables for compliance; and (6) contingency measures.

The approved attainment SIP revision dated February 26, 2016 (81 FR 9770) contains legally enforceable control measures and includes an evaluation of how those measures meet RACT and RACM. The approved attainment SIP also included a plan for making RFP. All of the contingency measures in the approved attainment SIP revision are available and enforceable for use, if necessary. An emissions inventory is included in the attainment SIP revision and this inventory is updated in the Redesignation Request and Maintenance Plan as discussed in paragraph III, criteria 4 a. above. The state's Nonattainment NSR is approved in the infrastructure SIP revision (80 FR 48791).

EPA is proposing to approve Iowa's request to redesignate the Council Bluffs area to attainment for the 2008 Pb NAAQS. Based on its detailed analysis above, EPA believes that the state's September 18, 2017, request for redesignation demonstrates NAAQS attainment and the associated maintenance plan will ensure that the area continues to attain the standard. Thus, EPA proposes to approve the redesignation request for the area and associated maintenance plan.

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

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

• 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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

For the reasons stated in the preamble, EPA proposes to amend 40 CFR parts 52 and 81 as set forth below:

NMFS manages the groundfish fisheries in the exclusive economic zone of the BSAI and Gulf of Alaska (GOA) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), and the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP). NMFS manages vessels subject to specific limitations on the catch of specific species or species groups (sideboard limits) under the AFA Program under the BSAI and GOA FMPs, and NMFS manages vessels and License Limitation Program (LLP) licenses subject to sideboard limits under the CR Program under the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP). The North Pacific Fishery Management Council (Council) prepared these FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the BSAI and GOA FMPs are located at 50 CFR part 679. Regulations implementing the Crab FMP are located at 50 CFR part 680. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

This proposed rule includes two related actions. The first action would revise regulations at § 679.64 and § 680.22 for sideboard limits that apply to two categories of vessels that operate in the BSAI or GOA: (1) AFA catcher/processors (C/Ps) listed in regulation at § 679.4(l)(2)(i) (described as AFA C/Ps in this proposed rule), and AFA catcher vessels (CVs) permitted to harvest Bering Sea pollock as established in regulation at § 679.4(l)(3); and (2) vessels and LLP licenses subject to sideboard restrictions in the GOA based on criteria as established in regulation at § 680.22(a) under the CR Program. This first action would prohibit directed fishing for groundfish species or species groups that are subject to sideboard limits that are not large enough to support directed fishing as that term is defined at § 679.2. In addition, under the first action, this proposed rule would remove a sideboard limit at § 679.64(a)(1)(ii)(B) for AFA C/Ps in one management area (Central Aleutian Islands (AI)) for one species (Atka mackerel) that is currently subject to a more restrictive limit under existing regulations at 50 CFR 679.91(c)(2)(ii) and Table 33 to 50 CFR part 679.

The first action under this proposed rule is necessary to streamline and simplify NMFS's management of applicable groundfish sideboard limits. NMFS calculates numerous AFA Program and CR Program sideboard limits as part of the annual BSAI and GOA harvest specifications process and publishes these limits in the Federal Register. Concurrently, NMFS prohibits directed fishing for the majority of the groundfish subject to these sideboard limits because most sideboard limits are too small each year to support directed fishing. The most recent example of the annual BSAI and GOA harvest specifications with the AFA Program and CR Program sideboard limits can be found at 83 FR 8365, February 27, 2018, for the BSAI, and at 83 FR 8768, March 1, 2018, for the GOA. Rather than continue this annual process of calculating all sideboard limits and then closing most to directed fishing, the first action of this proposed rule would revise regulations to prohibit directed fishing by non-exempt AFA Program and CR Program vessels for those groundfish species and species groups subject to sideboard limits if those species or species groups have not been opened to directed fishing or are not expected to be opened to directed fishing in the foreseeable future (see Section 2.7 of the Analysis for additional detail on the management of AFA Program and CR Program sideboard limits). Also, NMFS would cease calculating and publishing each year the relevant sideboard limits and their corresponding directed fishing prohibitions in the BSAI and GOA groundfish harvest specifications.

The second action of this proposed rule would remove the requirement for the designated representatives of AFA inshore cooperatives (described later in this preamble) to submit a weekly catch report described in regulation at §§ 679.5(o) and 679.62(b)(3). NMFS proposes to remove this requirement because the information in the weekly catch report is collected by NMFS through other recordkeeping and reporting requirements, and this weekly catch report is no longer necessary for NMFS to manage the AFA inshore pollock allocations.

This first action of this proposed rule was initiated after the Council received a report on the AFA Program in October 2016. As part of the review, NMFS identified potential improvements in the management of the AFA Program by streamlining and simplifying the management of the sideboard limits included under the AFA: NMFS recommended revising regulations to prohibit directed fishing by AFA vessels for those species or species groups (and any future break-out or combination of these species) where the sideboard limits are not large enough to support directed fishing and would not be large enough in the foreseeable future to support directed fishing. During subsequent review of this proposed action, NMFS expanded the scope of the review to include an analysis of revising regulations to prohibit crab vessels in the CR Program from directed fishing in the GOA for those species with sideboard limits that are not large enough to support directed fishing and would not be large enough in the foreseeable future to support directed fishing. At its February 2018 meeting, the Council selected Alternative 2 and Option 1 as its preferred recommendation to the Secretary of Commerce. The Council's recommendation, implemented through this proposed rule, would prohibit directed fishing by regulation for all species or species groups with insufficient sideboard limits for directed fishing by vessels in both AFA and CR Programs, and would remove from regulation the sideboard limit on AFA C/Ps for Central AI Atka mackerel harvest because the harvest of Central AI Atka mackerel by AFA C/Ps is constrained by other, existing regulations.

The following discussion summarizes groundfish sideboard limits, the AFA Program and AFA sideboard limits, the CR Program and CR Program sideboard limits, the annual harvest specifications process and the management of AFA Program and CR Program sideboard limits through that annual process, AFA Inshore Cooperative reporting requirements, and this proposed rule.

The Council and NMFS generally establish catch limits, commonly called sideboard limits, when implementing Limited Access Privilege Programs (LAPP). The term “Limited Access Privilege” is defined in section 3(26) of the Magnuson-Stevens Act (16 U.S.C. 1802). Sideboard limits are intended to prevent participants who benefit from receiving exclusive harvesting privileges in a LAPP from shifting effort into other fisheries. Sideboard limits establish limits on the annual amount of a particular groundfish total allowable catch (TAC) limit or prohibited species catch (PSC) limit that is available for participants in a given LAPP.

The Bering Sea pollock fishery is managed under the authority of the AFA (16 U.S.C. 1851 note) and the Magnuson-Stevens Act. The AFA Program is a LAPP that established in the Bering Sea pollock fishery directed fishing allocations to an inshore and an offshore component (commonly called the inshore and offshore sectors). The AFA also determined eligible vessels and processors in the Bering Sea pollock fishery; allowed the formation of cooperatives of catcher vessels in association with specific processors in the inshore sector; established sideboard limits; and imposed special catch weighing and monitoring requirements on AFA C/Ps. The AFA was implemented by Amendment 61 to the BSAI FMP, Amendment 61 to the GOA FMP, Amendment 13 to the Crab FMP, and Amendment 8 to the Fishery Management Plan for the Scallop Fishery off Alaska (67 FR 79692; December 30, 2002). The final rule implementing the AFA (67 FR 79692, December 30, 2002) and Section 2.7.1 of the Analysis describe the AFA Program in detail and the basis for the sideboard limits established under the AFA Program.

The final rule implementing the AFA established several different types of sideboard limits for vessels that are authorized to harvest pollock in the Bering Sea. These sideboard limits were established to protect the interests of fishermen and processors who do not directly benefit from the AFA from those fishermen and processors who received exclusive harvesting and processing privileges under the AFA. Essentially, the AFA Program sideboard limits protect non-AFA fishermen and processors by restricting the ability of AFA pollock fishermen and processors to target non-pollock groundfish species and species groups. Some of these sideboard limits were implemented through directed fishing closures in regulations, such as setting the Atka mackerel harvest limit to zero in the Bering Sea subarea and Eastern AI (§ 679.64(a)(1)(ii)(A)). Others were implemented through sideboard limits established through the annual harvest specifications process, which is described later in this preamble.

Section 679.7(k)(1)(ii) prohibits listed AFA C/Ps from harvesting any species of fish in the GOA. Section 679.64(a)(1) establishes sideboard limits for AFA C/Ps for Aleutian Islands Pacific ocean perch (§ 679.64(a)(1)(i)); Atka mackerel (§ 679.64(a)(1)(ii)); flathead sole, rock sole, and yellowfin sole (§ 679.64(a)(1)(iii)); and for the remaining groundfish species (§ 679.64(a)(1)(iv)). Section 679.64(a)(1)(v) establishes an exemption to sideboard limits for AFA C/Ps for yellowfin sole under specific TAC conditions. Section 679.64(a)(2) establishes specific sideboard limits for Pacific halibut and crab incidentally harvested by AFA C/Ps while fishing for groundfish in the BSAI. The methodologies used to assign sideboard limits for these species vary and are described in § 679.64(a).

Section 679.64(a)(1)(ii)(B) establishes a sideboard limit for Central AI (also referred to as Area 542 in regulation) Atka mackerel that is equal to 11.5 percent of the annual TAC for Atka mackerel. In 2007, NMFS implemented the Amendment 80 Program (72 FR 52668, September 14, 2007). The Amendment 80 Program modified the management of several non-pollock species in the BSAI that are subject to sideboard limits under the AFA Program. Under regulations that implemented the Amendment 80 Program, no more than 10 percent of the Central AI Atka mackerel TAC may be harvested by vessels other than Amendment 80 vessels, which are designated as the BSAI trawl limited access sector and include AFA C/Ps (§ 679.91(c)(2)(ii) and Table 33 to 50 CFR part 679). Therefore the maximum amount of the Central AI Atka mackerel TAC available to AFA C/Ps under regulations implementing Amendment 80 (10 percent) is less than the sideboard limit established for AFA C/Ps when the AFA Program was implemented in 2000 (11.5 percent). By constraining the AFA C/Ps directed fishing for Central AI Atka mackerel, the more restrictive allocation of TAC under the Amendment 80 Program is, effectively, a conservation and management measure that operates similar to the larger sideboard limit established for Central AI Atka mackerel under the AFA groundfish sideboard regulations. Additional detail on the Amendment 80 Program is provided in the final rule for that program (72 FR 52668, September 14, 2007).

Section 679.64(b) establishes sideboard limits for AFA CVs. Section 679.64(b)(3)(i) through (iii) establishes sideboard limits for groundfish in the BSAI using a variety of methods that depend on the species (e.g., the method for calculating the sideboard limit for BSAI Pacific cod differs from yellowfin sole). These methods are described at § 679.64(b)(3)(i) for BSAI groundfish other than Amendment 80 species; at § 679.64(b)(3)(ii) for BSAI Pacific cod; and at § 679.64(b)(3)(iii) for Amendment 80 species other than Pacific cod. Section 679.64(b)(3)(iv) establishes sideboard limits for AFA CVs for groundfish species in the GOA. The final rule implementing the AFA Program provides additional information on the management of sideboard limits for AFA CVs (67 FR 79692, December 30, 2002).

Section 679.64(b)(2) exempts specific AFA CVs from sideboard limits in the BSAI (§ 679.64(b)(2)(i)) and the GOA (§ 679.64(b)(2)(ii)) based on criteria described in § 679.64(b)(2). These exemptions are intended to provide opportunities for vessels that have historically fished in the BSAI or GOA for species other than pollock, but that also have some limited participation in the Bering Sea pollock fisheries. This proposed rule would not affect the management of exempt AFA catcher vessels.

The CR Program is a LAPP that allocates nine BSAI crab species among harvesters, processors, and coastal communities. Participants in the CR Program receive exclusive harvesting and processing privileges for a portion of the annual TAC established for each crab fishery under the CR Program. The final rule implementing the CR Program describes the different elements of the program, including groundfish sideboard limits in the GOA for vessels and LLP licenses that received allocations of exclusive harvesting privileges (quota share) under the CR Program (70 FR 10174, March 2, 2005). These sideboard limits were developed to protect participants in other non-CR Program groundfish fisheries from increased participation by CR Program vessels in the GOA, as discussed in Section 2.7.2 of the Analysis. Essentially, the CR Program sideboard limits protect non-CR Program participants by restricting the ability of CR Program participants to target non-crab fisheries (i.e., GOA groundfish fisheries).

CR Program sideboard limits are established for a variety of species and species groups and gear types, including pot, hook-and-line, jig, and trawl gear. CR Program sideboard limits are only applicable in the GOA. Section 680.22 establishes groundfish sideboard limits for vessels and LLP licenses with a history of participation in the Bering Sea snow crab (Chionoecetes opilio) fishery. Sideboard harvest limits restrict these vessels' catch to their collective historical landings in each GOA groundfish fishery. Sideboard limits also apply to landings made using an LLP license derived from the history of a restricted vessel, even if that LLP license is used on another vessel. CR Program sideboard limits do not apply to AFA catcher vessels because these vessels already are subject to GOA sideboard limits under the AFA Program.

Various final rules implementing provisions of the CR Program describe the basis for these sideboard harvest limits. These final rules include Amendments 18 and 19 to the Crab FMP (70 FR 10174, March 2, 2005), Amendment 34 to the Crab FMP (76 FR 35772, June 20, 2011), Amendment 83 to the GOA FMP (76 FR 74670, December 1, 2011), and Amendment 45 to the Crab FMP (80 FR 28539, May 19, 2015).

NMFS establishes the overfishing level, acceptable biological catch (ABC), and TAC for each species or species group through the annual groundfish harvest specifications process. NMFS allows vessels to retain incidental catch of species (if the TAC has not been reached) taken in other directed fisheries that are open, up to the maximum retainable amount (MRA) allowed in regulation (§ 679.20(e)). If a species is closed to directed fishing, and the TAC for that species is reached, NMFS prohibits retention of that species, and all catch of that species must be discarded. A MRA is calculated as a percentage of the retained amount of a species that is closed to directed fishing, relative to the retained amount of basis species or species groups open to directed fishing. Amounts that are caught greater than a particular MRA percentage must be discarded.

In the annual harvest specifications, NMFS calculates sideboard limits for the AFA Program and the CR Program fisheries by multiplying a fixed ratio against the annual TAC or portion of the TAC for each BSAI and GOA groundfish species or species group. These ratios are derived based on the specific regulations described earlier in this preamble. The annual sideboard limit for most BSAI and GOA groundfish species is an amount that is much smaller than the overall TAC for each species. For the most recent example of the annual groundfish harvest specifications and associated AFA Program and CR Program sideboard limits, see the final 2018 and 2019 harvest specifications for the BSAI and GOA (83 FR 8365, February 27, 2018, and 83 FR 8768, March 1, 2018, respectively).

Consistent with regulations at §§ 679.64 and 680.22, NMFS manages the AFA Program and CR Program sideboard limits by establishing directed fishing closures for a species or species group subject to a sideboard limit. This closure could happen during the fishing year if a particular sideboard limit is reached. Alternatively, NMFS may issue a directed fishing closure in the harvest specifications prior to the fishing year, if the sideboard limit is not sufficient to support directed fishing for a species or species group. NMFS has prohibited directed fishing for the majority of AFA CV and C/P sideboard limits since the initial implementation of the AFA Program implementation in 2000 (65 FR 4520, January 28, 2000). NMFS also has prohibited directed fishing for the majority of CR Program sideboard limits in the GOA since CR Program was implemented in 2006. Directed fishing prohibitions have been issued because the sideboard limits for most species were insufficient to provide for both directed fishing of a species and incidental catch of that same species in other target fisheries.

Section 2.7.1 of the Analysis describes the groundfish species subject to AFA CV and C/P sideboard limits that have been closed to directed fishing each year in the annual harvest specifications, and the limited number of groundfish species that have sideboard limits that have been sufficiently large to allow for directed fishing. Section 2.7.2 of the Analysis describes the groundfish species in the GOA subject to CR Program sideboard limits that have been closed to directed fishing each year in the annual harvest specifications, and the one groundfish species (Pacific cod) and gear type (pot) that has sideboard limits that have been sufficiently large to allow for directed fishing.

In addition to the Council's recommendations for proposed revisions to AFA Program and CR Program sideboard limits, NMFS also proposes to remove the requirement for the designated representatives of AFA inshore cooperatives to submit a weekly catch report described in regulation at §§ 679.5(o) and 679.62(b)(3) because this report is no longer necessary to manage the AFA inshore pollock allocations. NMFS obtains the necessary information required on the AFA inshore cooperative weekly report through other reporting requirements at § 679.5(e). Removing this reporting requirement would reduce costs for the public to prepare and submit the weekly reports and for NMFS to review and process those weekly reports.

Under Action 1, NMFS would no longer publish AFA Program or CR Program sideboard amounts for specific species or species groups in the Federal Register as part of the annual groundfish harvest specifications, but would specify in regulation those species with sideboard limits that are subject to a directed fishing closure. Specification through regulation of these directed fishing closures will streamline and simplify NMFS's management of these applicable groundfish sideboard limits. NMFS would no longer need to calculate the applicable sideboard limits, prepare the necessary tables, and publish those sideboard limits and their corresponding directed fishing prohibitions each year in the BSAI and GOA groundfish harvest specifications. This will reduce staff time and annual costs to prepare and publish the BSAI and GOA groundfish harvest specifications.

This proposed rule would not modify the ability of sideboard-restricted vessels to retain incidental catch of species closed to directed fishing while targeting other species. Vessels are allowed to retain incidental catch of species up to the MRA if the TAC of that species has not been reached, and once the TAC is reached, all retention of that species is prohibited. The regulations governing incidental catch, MRAs, and PSC status apply when a species is closed to directed fishing, whether closed to directed fishing through the annual BSAI and GOA harvest specifications or through a specific regulation. Accordingly, under this proposed rule, sideboard restricted vessels will remain subject to the same regulations governing the incidental catch of species or species groups with sideboard limits that are closed to directed fishing, and this proposed rule would not change NMFS's inseason management of sideboard limits. Moreover, the proposed approach that continues directed fishing closures for sideboard limits for AFA and CR Program vessels would continue to protect non-AFA and non-CR Program participants in other fisheries, in accordance with the original intent of creating sideboard limits (see Section 2.7.1 and 2.7.2 of the Analysis).

This proposed rule would affect the sideboard limits for AFA CVs in the BSAI, AFA CVs in the GOA, AFA C/Ps in the BSAI, and non-AFA crab vessels in the GOA. For AFA CVs fishing in the BSAI, NMFS sets sideboard limits for 16 different groundfish species or species groups; however, in the annual harvest specifications, NMFS has closed most sideboard species to directed fishing by AFA CVs. Often, the sideboard amounts for these species are insufficient to support a directed fishery by the AFA CVs that are subject to the sideboard limit. Also, some sideboard species are not opened to AFA CVs for directed fishing because the species is fully allocated to the Amendment 80 Program (e.g., flathead sole, rock sole) or because there are no PSC sideboard limits apportioned to support directed fishing (e.g., Greenland turbot, arrowtooth flounder, Kamchatka flounder). A list of BSAI species or species groups with sideboard limits that are proposed to be closed in regulation to directed fishing by AFA CVs is provided in Table 2-5 of the Analysis. In the BSAI, AFA CVs have historically targeted two sideboard-limited species (Pacific cod and yellowfin sole), and this proposed rule would not change the management of those sideboard fisheries that have opened for directed fishing in the past and that likely would continue to support a directed fishery for those species and for certain gear types for Pacific cod (see Table 2-6 of the Analysis).

Similarly, for AFA CVs fishing in the GOA, NMFS sets sideboard limits for different groundfish species or species groups, and through the harvest specifications NMFS closes many of those sideboard species to directed fishing by AFA CVs. In the GOA, many of the sideboards amounts cannot support a directed fishery by the AFA CVs that are subject to the sideboard limits. A list of the GOA species or species groups with sideboard limits that are proposed to be closed in regulation to directed fishing by AFA CVs is provided in Table 2-7 of the Analysis, while Table 2-8 of the Analysis lists those sideboard limits that will remain open to directed fishing because the sideboard limits for those species have been sufficient and likely will remain sufficient to support a directed fishery by AFA CVs.

For AFA C/Ps in the BSAI, many of the BSAI groundfish harvesting sideboards are also not open for directed fishing, for reasons similar to the management of AFA CVs in the BSAI. First, many of the sideboard limits are insufficient to support a directed fishery by the AFA C/Ps that are subject to the sideboard limit. In addition, some sideboards for AFA C/Ps are not available for directed fishing because the species is fully allocated to the Amendment 80 Program (e.g., flathead sole, rock sole, Western AI Atka mackerel) or because there are no PSC limits apportioned to support directed fishing. A list of the BSAI species or species groups with sideboard limits that are proposed to be closed in regulation to directed fishing by AFA C/Ps is provided in Table 2-9 of the Analysis, while Table 2-10 of the Analysis lists those sideboard limits that will remain open to directed fishing because the sideboard limits for those species have been sufficient and likely will remain sufficient to support a directed fishery by AFA C/Ps.

As explained earlier, the CR Program regulations establish sideboard limits to restrict the ability of non-AFA crab vessels to target groundfish species and species groups in the GOA. Since implementation of the CR Program sideboard limits in 2006, the only sideboard limits large enough to support directed fishing have been the Western and Central GOA Pacific cod pot catcher vessel sideboard limits, and in some years the Western GOA Pacific cod pot catcher/processor sideboard limit. All other sideboard limits have been closed for directed fishing because they are not sufficient to provide for a directed fishery by crab vessels. A list of the GOA sideboard limits that would be replaced with a prohibition on directed fishing is provided in Table 2-11 of the Analysis, while Table 2-12 shows sideboard limits for those Western and Central GOA Pacific cod pot catcher vessels that would not be affected by the proposed action and that likely would remain open for directed fishing.

In both the BSAI and GOA, many of the sideboard limits are not large enough to support a directed fishery by AFA CVs and C/Ps and crab vessels, which means that NMFS cannot actively manage those fisheries to ensure a timely closure and prevent retention in excess of the TAC set for that year. It is highly unlikely that the TACs of any of the sideboard species would increase significantly enough in the foreseeable future to result in a large enough sideboard limit to allow directed fishing of the sideboard allowance. Because factors such as TAC are not likely to change significantly enough to provide AFA vessels and crab vessels with groundfish sideboard limits sufficient to support a directed fishery, NMFS has determined it would be more efficient to close those sideboard limits to directed fishing in regulation, rather than continuing to specify those sideboard limits and close them to directed fishing every year through the annual harvest specifications.

Accordingly, under Action 1, this proposed rule would implement the Council's recommendation (Option 1 to Alternative 2, the preferred alternative) to:

• Prohibit directed fishing for most AFA Program and CR Program groundfish sideboard limits by adding Tables 54, 55, and 56 to 50 CFR part 679 to list the AFA Program sideboard species prohibited to directed fishing; and by adding Table 11 to 50 CFR part 680 to list the CR Program sideboard species prohibited to directed fishing;

• remove a regulation (§ 679.64(a)(1)(ii)(B)) establishing the annual Central AI Atka mackerel sideboard limit for AFA C/Ps; and

• make other minor regulatory amendments necessary to establish directed fishery closures for specific species and species groups in regulation.

This proposed rule would revise § 679.20(d) by adding a new paragraph to prohibit directed fishing for the species sideboard limits listed in proposed Tables 54, 55, and 56 to 50 CFR part 679. Existing regulations associated with establishing sideboard directed fishing allowances would be retained, as they are needed for those species or species groups that would continue to have sideboard limits established through the annual harvest specifications. In addition, § 679.64(a)(3) would be revised to add a paragraph describing that proposed Table 54 to 50 CFR part 679 contains the BSAI species or species groups prohibited for directed fishing by AFA C/Ps. Similarly, § 679.64(b)(5) would be revised to add a paragraph that describes proposed Tables 55 and 56 to 50 CFR part 679. These two tables list the species or species groups for which directed fishing by AFA CVs is prohibited in the BSAI and GOA, respectively.

Regarding the Central AI Atka mackerel sideboard limit for AFA C/Ps, this proposed rule would remove § 679.64(a)(1)(ii)(B). That regulation specifies the AFA C/Ps Central AI Atka mackerel sideboard limit of 11.5 percent of the annual Central AI TAC, which is based on the sideboard limit set forth in Section 211(b)(2)(C)(i)) of the AFA. However, since the implementation of the Amendment 80 Program in 2008, the percentage of the initial TAC for the sector in which AFA C/Ps are authorized to participate (the BSAI trawl limited access sector) is only 10 percent. Therefore, the maximum amount of the Central AI Atka mackerel TAC available to AFA C/Ps under regulations implementing Amendment 80 (10 percent) is less than the sideboard limit established for AFA C/Ps when the AFA Program was implemented in 2000 (11.5 percent). Since the BSAI trawl limited access sector allocation is less than the sideboard limit, the sideboard limit no longer constrains AFA C/Ps. NMFS believes that the proposed revision to remove the regulation that specifies the sideboard limit for Central AI Atka mackerel for AFA C/Ps is consistent with Section 211 of the AFA. Section 211(a) of the AFA allows the Council to recommend, and NMFS to approve, conservation and management measures necessary to protect other fisheries from the adverse impacts caused by the AFA. The current allocation of Atka mackerel available to AFA C/Ps (10 percent of the TAC) is effectively a conservation and management measure that protects participants in other non-AFA fisheries by limiting the amount of Atka mackerel that AFA C/Ps can potentially harvest to less than 11.5 percent of the TAC available to AFA C/Ps under the existing sideboard limit established under Section 211(b)(2)(C)(i) of the AFA. Under the proposed rule, NMFS would no longer specify the AFA C/P sideboard limit for Central AI Atka mackerel; however, that fishery would remain open to directed fishing, and AFA C/Ps as part of the BSAI trawl limited access sector would remain constrained under existing regulations to harvesting up to the 10 percent of the allocation to the BSAI trawl limited access sector (50 CFR 679.91(c)(2)(ii) and Table 33 to 50 CFR part 679).

For the CR Program sideboard limits, this proposed rule would revise § 680.22(e) to describe the permanent prohibition for directed fishing for most GOA groundfish species by non-AFA crab vessels in the GOA. This paragraph would include a reference to proposed Table 11 to 50 CFR part 680, which lists the species or species groups for which directed fishing for sideboard limits is prohibited.

In addition to the Council's recommendation for revising the management of AFA Program and CR Program sideboard limits, NMFS also proposes to remove the requirements for the AFA inshore cooperative weekly catch report described in regulations at §§ 679.5(o) and 679.62(b)(3). This report is no longer necessary to manage the AFA inshore pollock allocations. NMFS has direct and immediate access to observer and landings data to track catch by the cooperatives and does not need the information submitted by the cooperatives to monitor the Bering Sea pollock fisheries. Eliminating this weekly reporting requirement will reduce the burden on the designated representatives of AFA inshore cooperatives to prepare and submit these reports to NMFS weekly, will reduce costs to the members of the AFA inshore cooperatives to pay for the preparation and submission of these weekly reports, and will reduce the time and costs that NMFS incurs in processing and reviewing the weekly reports.

Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the BSAI FMP, the GOA FMP, the Crab FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.

An RIR was prepared to assess the costs and benefits of available regulatory alternatives. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended the regulatory revisions in this proposed rule based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis related to the impact of this proposed rule on small entities are discussed below in the Initial Regulatory Flexibility Analysis section.

This IRFA was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to describe the economic impact this proposed rule, if adopted, would have on small entities. An IRFA describes why this action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of this proposed rule, its purpose, and the legal basis are contained earlier in this preamble and are not repeated here.

NMFS has determined that vessels that are members of a fishing cooperative are affiliated when classifying them for the RFA analyses. In making this determination, NMFS considered the Small Business Administration's (SBA) “principles of affiliation” at 13 CFR 121.103. Specifically, in § 121.103(f), SBA refers to “[a]ffiliation based on identity of interest,” which states affiliation may arise among two or more persons with an identity of interest. Individuals or firms that have identical or substantially identical business or economic interests (such as family members, individuals or firms with common investments, or firms that are economically dependent through contractual or other relationships) may be treated as one party with such interests aggregated. If business entities are affiliated, then the threshold for identifying small entities is applied to the group of affiliated entities rather than on an individual entity basis.

There are 93 active AFA catcher vessels that are restricted by sideboard limits in the BSAI and GOA, 17 active catcher/processors that are restricted by sideboard limits in the BSAI, and 95 CR Program active catcher vessels that are restricted by sideboard limits in the GOA. These vessels are members of an AFA cooperative for Bering Sea pollock or a Bering Sea Crab Cooperative and are therefore considered to be large entities via their cooperative affiliation. Other than these vessels, there are 18 vessels that are restricted by sideboard limits in the BSAI and GOA and that are not members of an AFA or crab cooperative. These 18 vessels may be considered small entities under the RFA because they likely have combined annual gross receipts not in excess of $11.0 million.

This proposed rule would directly regulate those vessel operators that are restricted by AFA Program and CR Program groundfish sideboard limits in the BSAI and GOA, and AFA inshore cooperatives that are required to submit an AFA inshore cooperative weekly report. All persons required to submit an AFA inshore cooperative weekly report are also subject to sideboard limits under the AFA Program. Therefore, the number of directly regulated entities under this proposed rule is equal to the number of vessel operators restricted by AFA Program and CR Program groundfish sideboard limits in the BSAI and GOA. The thresholds applied to determine if an entity or group of entities are “small” under the RFA depend on the industry classification for the entity or entities. Businesses classified as primarily engaged in commercial fishing are considered small entities if they have combined annual gross receipts not in excess of $11.0 million for all affiliated operations worldwide (81 FR 4469; January 26, 2016). Businesses classified as primarily engaged in fish processing are considered small entities if they employ 750 or fewer persons on a full-time, part-time, temporary, or other basis, at all affiliated operations worldwide. Since at least 1993, NMFS Alaska Region has considered catcher/processors to be predominantly engaged in fish harvesting rather than fish processing. Under this classification, the threshold of $11.0 million in annual gross receipts is appropriate.

Based on this analysis, NMFS preliminarily determines that there are 18 entities that may be considered small and would be affected by this proposed rule. However, due to the complexity of the affiliation among the entities and the overlay of affiliation due to ownership and affiliation based on the contractual relationship among members of cooperatives, it is not certain these 18 entities are small entities, as defined by the RFA, that could be affected by this proposed rule. Nonetheless, NMFS has prepared this IRFA, which provides potentially affected small entities an opportunity to provide comments on this IRFA. NMFS will evaluate any comments received on the IRFA and may consider certifying under section 605 of the RFA (5 U.S.C. 605) that this action will not have a significant economic impact on a substantial number of small entities prior to publication of the final rule.

The only potential adverse economic impacts on directly regulated small entities that have been identified for this proposed rule are if the ABC and corresponding TAC for the species for which directed fishing would be closed significantly increased. With respect to potential changes in ABCs and TACs, NMFS does not anticipate that there will be significant increases to the groundfish species' ABCs and TACs associated with this action to the degree that the increases could allow for a directed fishery for a given species. Sideboard limits represent a very small proportion of a given annual groundfish TAC. If a particular species' biomass, ABC, and TAC increased to a level that could potentially allow for a directed fishery for that species' sideboard limit, such a substantial change in biomass and harvest control rules would also give rise to other potential management considerations beyond just increasing sideboard limits. With regards to the potential that the Amendment 80 Program allocations of groundfish (specifically Central AI Atka mackerel) could change, NMFS considers that prospect highly unlikely. The AFA and Amendment 80 fishery management programs in the BSAI are currently stable. The groundfish allocations established by these programs have not been modified since they were implemented, and there are no foreseeable changes in the allocations established under the Amendment 80 Program. If such allocative changes were proposed, the Council and NMFS would conduct a comprehensive analysis as part of any potential future action of how such changes could affect the sideboard limits associated with this action.

This proposed rule would remove a recordkeeping and reporting requirement for the submittal of AFA inshore cooperative weekly catch reports. Such reports are no longer necessary to assist NMFS with managing the AFA inshore pollock fisheries, as the information in such reports has been superseded by more contemporary, electronic data reporting. The proposal to remove these requirements is anticipated to reduce the cost in total to the public by approximately $8,475 per year, and is anticipated to reduce costs to NMFS by approximately $5,400 per year.

No small entity is subject to reporting requirements that are in addition to or different from the requirements that apply to all directly regulated entities.

No duplication, overlap, or conflict between this proposed rule and existing Federal rules has been identified.

No significant alternatives were identified that would accomplish the stated objectives for streamlining the management of AFA and CR Program sideboard limits by prohibiting in regulation certain species sideboard limits, are consistent with applicable statutes, and that would reduce costs to potentially affected small entities more than the proposed rule. The Council and NMFS considered two alternatives for action one of this proposed rule. Alternative 1 is the no action alternative. This alternative would continue the annual establishment of the sideboard limits for all the species listed in proposed Tables 54, 55, and 56 to 50 CFR part 679, as well as proposed Table 11 to 50 CFR part 680, and would maintain the sideboard limit for Central AI Atka mackerel for AFA C/Ps. These sideboard species have insufficient sideboard limits to support directed fishing, are fully allocated to other catch share programs, or for a variety of other reasons are closed to directed fishing. NMFS would continue to prohibit directed fishing for these sideboard fisheries via the annual harvest specifications, except for the Central AI Atka mackerel sideboard limit for AFA C/Ps.

Alternative 2, along with Option 1 (the preferred alternative), provides the greatest economic benefits. The primary economic benefit of this proposed rule is to reduce NMFS's administrative burden of managing most AFA Program and CR Program sideboards through the annual harvest specifications process. Implementation of Alternative 2 through this proposed rule would streamline the preparation of the BSAI and GOA annual harvest specifications, simplify NMFS's annual programming changes to the groundfish catch accounting system, and reduce the future costs of publishing the annual harvest specifications in the Federal Register each year. The economic effects on fishery participants that are affected by this proposed action primarily are neutral. The removal of the AFA inshore cooperative weekly catch report requirement would, however, provide a modest economic benefit for AFA inshore cooperatives.

This proposed rule addresses a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0401 (AFA Reports). The proposed rule would not add any new information collection requirements, but would remove the regulatory requirement for the AFA inshore cooperative weekly catch report. The public reporting burden for the AFA inshore cooperative weekly catch report is estimated to average 45 minutes per response, which includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The proposal to remove this collection of information requirement has been submitted to OMB for approval.

Public comment is sought regarding the proposal to remove the requirement for the AFA inshore cooperative weekly catch report and the burden hour estimate for this report. Send comments on these or any other aspects of the collection of information to NMFS Alaska Region (see ADDRESSES) and to OIRA by email to [email protected] or by fax to (202) 395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to 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. All currently approved NOAA collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 and part 680 as follows: