Federal Register Vol. 83, No.170,

I. Table of Abbreviations CFR—Code of Federal Regulations CPI—Consumer Price Index CPI-U—Consumer Price Index for All Urban Customers DHS—Department of Homeland Security Form I-129—Form I-129, Petition for a Nonimmigrant Worker Form I-140—Form I-140, Immigrant Petition for Alien Worker INA—Immigration and Nationality Act USCIS—U.S. Citizenship and Immigration Services I. Background and Authority

The Immigration and Nationality Act (INA) permits certain employment-based immigration benefit applicants and petitioners to request, for a fee, premium processing. The applicable statute authorizes the Secretary of Homeland Security (Secretary) to charge and collect a premium processing fee for employment-based petitions and applications. The fee must be used to provide certain premium-processing services to business customers, and to make infrastructure improvements in the adjudications and customer service processes. By statute, the fee, initially set at $1,000, must be paid in addition to any normal petition/application fee that may be applicable. The statute provides that the Secretary may adjust this fee according to the Consumer Price Index. INA section 286(u), 8 U.S.C. 1356(u); Public Law 106-553, App. B, tit. I, sec. 112, 114 Stat. 2762, 2762A-68 (Dec. 21, 2000).

Premium processing allows filers to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra amount. See 8 CFR 103.7(b)(1)(i)(SS) and (e). The premium processing fee is paid in addition to the base filing fee and any other applicable fees. See 8 CFR 103.7(b)(1)(i)(SS)(1). It cannot be waived. See 8 CFR 103.7(b)(1)(i)(SS)(3). USCIS uses premium processing fee revenue to improve its adjudications and customer service processes, fund the costs of providing the premium services, and modernize its information technology systems.

Premium processing is currently authorized for certain petitioners filing a Petition for a Nonimmigrant Worker (Form I-129), or an Immigrant Petition for Alien Worker (Form I-140) seeking certain employment-based classifications. See 8 CFR 103.7(b)(1)(i)(SS) and (e).1 DHS last adjusted the premium processing fee to $1,225 in its 2010 USCIS fee rule. See USCIS Fee Schedule; Final Rule, 75 FR 58961, 58978, 58988 (Sept. 24, 2010); 8 CFR 103.7(b)(1)(i)(RR) (effective Nov. 23, 2010, codified as amended at 8 CFR 103.7(b)(1)(i)(SS), 81 FR 73292, 73331 (Oct. 24, 2016)).

Consistent with INA section 286(u), 8 U.S.C. 1356(u), DHS has calculated the percent change in the CPI-U to measure inflation. For the end point for the period of inflation to establish the current premium processing fee, DHS used the Consumer Price Index-Urban Consumers (CPI-U) as of June 2010. See 75 FR 58961. Accordingly, we have used July 2010 as the starting point for this change. In July 2010 the CPI-U was 218.01, and in April 2018 it was 250.55.2 Therefore, between July 2010 and April 2018, the CPI-U increased by 14.92 percent.3 When the percentage increase is applied to the current premium processing fee of $1,225, the adjusted premium processing fee is $1,408 ($1,410 when rounded to the nearest $5 increment). Thus, under INA section 286(u), 8 U.S.C. 1356(u), the USCIS premium processing fee will be $1,410. See final 8 CFR 103.7(b)(1)(i)(SS).

USCIS intends to use the premium funds that are generated by the fee increase to provide certain premium-processing services to business customers, and to make infrastructure improvements in the adjudications and customer-service processes. In recent years, premium processing has been suspended on employment-based petitions to permit officers working on premium processing cases to process long-pending non-premium filed petitions as well as to prevent a lapse in employment authorization for beneficiaries of extension petitions resulting from the high volume of incoming petitions and a significant surge in premium processing requests. 4 The additional staff hired through the premium funds will allow USCIS to provide premium processing service with less disruption and improve the adjudications and customer service process. USCIS also plans to make adequate investment in information technology systems that will improve the adjudications process and the services provided to applicants and petitioners.

A request for premium processing postmarked on or after October 1, 2018 must include the new fee. Petitioners must pay the $1,410 fee in addition to and separate from other filing fees. 8 CFR 103.7(b)(1)(i)(SS)(1). The premium processing fee may not be waived. 8 CFR 103.7(b)(1)(i)(SS)(3).5

DHS is making this fee increase final without notice and comment because it is unnecessary. 5 U.S.C. 553(b)(B). By law, DHS may adjust the premium processing fee for inflation according to the Consumer Price Index. See INA section 286(u), 8 U.S.C. 1356(m). DHS has previously established by regulation that DHS may adjust the fee annually by notice. 8 CFR 103.7(b)(1)(i)(SS)(2). No comments were received on the USCIS Fee Schedule; Final Rule regarding USCIS's authority to adjust the premium processing fee for inflation in the future. See 75 FR 58961-58991. The amount of the increase would not be changed by public comment. The sole exercise of discretion here relates to the determination whether, as a matter of internal agency management, DHS and USCIS needs additional premium processing fee revenue to provide premium processing services and to make infrastructure improvements in the adjudications and customer-service processes as authorized by INA 286(u), 8 U.S.C. 1356(u), and whether, as a procedural matter, payment of such increased fee will be a precondition for receiving the premium processing service. Therefore, further delay of this regulation change to solicit public comments is unnecessary.

Because this action is not subject to the notice-and-comment requirements under the APA, a final regulatory flexibility analysis is not required. See 5 U.S.C. 604(a). In addition, this rule is not a “major rule” as defined by the Congressional Review Act, 5 U.S.C. 804(2), and thus is not subject to a 60-day delay in the rule becoming effective. This action is not subject to the written statement requirements of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Nor does it require prior consultation with State, local, and tribal government officials as specified by Executive Orders 13132 or 13175. This rule also does not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii) and 1508.4. This action does not affect the quality of the human environment and fits within Categorical Exclusion number A3(d) in Dir. 023-01 Rev. 01, Appendix A, Table 1, for rules that interpret or amend an existing regulation without changing its environmental effect.

Finally, this action does not require review by the Office of Management and Budget (OMB) under Executive Orders 12866 and 13563. As previously discussed, DHS has the authority to adjust the premium processing fees according to the CPI-U. DHS is adjusting the premium processing fee by 14.92 percent resulting in an increase of $185 per Form I-907 (from a fee of $1,225 per premium processing Form I-907 to $1,410 per Form I-907). Table 1 shows the total number of premium processing Forms I-907 received by USCIS from fiscal year 2013 to 2017. On average, USCIS received 238,784 Forms I-907 annually during this timeframe.

DHS estimates an additional annual $44 million in revenue to be collected from the increase in premium processing fees due to adjustment of inflation.6 As discussed earlier, the premium processing fee revenue will be used to make infrastructure improvements in the adjudications and customer service processes as well as to fund the cost of providing premium services.

This rule imposes transfer payments between the public and the government. Thus, this action is exempt from Executive Order 13771.

For the reasons stated in the preamble, DHS amends part 103 of chapter I of title 8 of the Code of Federal Regulations as follows:

I. Background

The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively, the agencies) adopted the liquidity coverage ratio (LCR) rule 1 in 2014. The LCR rule established a quantitative liquidity requirement that is designed to promote the short-term resilience of the liquidity risk profile of large and internationally active banking organizations. The intent of the agencies in issuing the LCR rule was to improve the banking sector's ability to absorb shocks arising from financial and economic stress and the measurement and management of liquidity risk.2 The LCR rule generally applies to a bank holding company, savings and loan holding company, or depository institution if: (1) It has total consolidated assets equal to $250 billion or more; (2) it has total consolidated on-balance sheet foreign exposure equal to $10 billion or more; or (3) it is a depository institution with total consolidated assets equal to $10 billion or more and is a consolidated subsidiary of a firm that is subject to the LCR rule (each, a covered company).3 Covered companies generally must maintain an amount of high-quality liquid assets (HQLA) equal to or greater than their projected total net cash outflows over a prospective 30 calendar-day period.4 The LCR rule defines three categories of HQLA—level 1, level 2A, and level 2B liquid assets—and sets forth qualifying criteria for HQLA and limitations for an asset's inclusion in the HQLA amount.

In 2016, the Board amended its LCR rule to include certain U.S. municipal securities as HQLA, subject to certain limitations (2016 Amendments).5 To qualify as level 2B liquid assets under the 2016 Amendments, the U.S. municipal securities must be general obligation securities of public sector entities (i.e., a state, local authority, or other governmental subdivision below the U.S. sovereign entity level).6 Under the 2016 Amendments, a general obligation is defined as a bond or similar obligation that is backed by the full faith and credit of a public sector entity.7 To be treated as HQLA, the general obligation securities also must: (1) Be investment grade under 12 CFR part 1 as of the calculation date; (2) be issued or guaranteed by a public sector entity whose obligations have a proven record as a reliable source of liquidity in repurchase or sales markets during stressed market conditions; 8 and (3) not be an obligation of a financial sector entity or a financial sector entity's consolidated subsidiary, unless it is only guaranteed by a financial sector entity or its consolidated subsidiary and otherwise eligible.9 The 2016 Amendments limited the inclusion of general obligation securities in the HQLA amount to 5 percent of the covered company's total HQLA amount.10 The 2016 Amendments also limited the inclusion of general obligation securities of any single public sector entity to two times the average daily trading volume during the previous four quarters of all general obligation securities issued by that public sector entity.11

The Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA) was enacted on May 24, 2018.12 Section 403 of the EGRRCPA amends section 18 of the Federal Deposit Insurance Act 13 and requires the agencies, for purposes of the LCR rule and any other regulation that incorporates a definition of the term “high-quality liquid asset” or another substantially similar term, to treat a municipal obligation as HQLA that is a level 2B liquid asset if that obligation is, as of the calculation date, (A) liquid and readily-marketable and (B) investment grade. Section 403 defines “investment grade” as having the meaning given the term in § 1.2 of title 12, Code of Federal Regulations, or any successor thereto. Section 403 defines “liquid and readily-marketable” as having the meaning given the term in § 249.3 of title 12, Code of Federal Regulations, or any successor thereto. Section 403 defines “municipal obligation” as “an obligation of—(i) a State or any political subdivision thereof; or (ii) any agency or instrumentality of a State or any political subdivision thereof.”

This interim final rule amends the agencies' LCR rule to implement section 403 of the EGRRCPA. Section 403 requires the agencies to treat a municipal obligation as a level 2B liquid asset if the obligation, as of the calculation date, is liquid and readily-marketable and investment grade.14 To effect this change, the interim final rule makes certain amendments to each agency's LCR rule that incorporate the provisions of section 403 of the EGRRCPA.

The interim final rule adds a definition to the agencies' rule for the term “municipal obligations,” which, consistent with the EGRRCPA, means an obligation of (1) a state or any political subdivision thereof or (2) any agency or instrumentality of a state or any political subdivision thereof.

The interim final rule amends the HQLA criteria with respect to level 2B liquid assets by adding municipal obligations that, as of the calculation date, are both (1) liquid and readily-marketable and (2) investment grade (under 12 CFR part 1) to the list of assets that are eligible for treatment as level 2B liquid assets.15 The OCC's definition of “investment grade” under 12 CFR 1.2 provides that “[i]nvestment grade means the issuer of a security has an adequate capacity to meet financial commitments under the security for the projected life of the asset or exposure. An issuer has an adequate capacity to meet financial commitments if the risk of default by the obligor is low and the full and timely repayment of principal and interest is expected.” 16 A municipal obligation is required to meet this definition of “investment grade” as of the calculation date to be treated as a level 2B liquid asset under the interim final rule.

Consistent with section 403, the interim final rule also amends the definition of “liquid and readily-marketable” in the FDIC's and OCC's rules so that the term has the same meaning given to it under the Board's rules. Under this provision of the Board's rules, a “liquid and readily-marketable” security is a security that is traded in an active secondary market with: (1) More than two committed market makers; (2) a large number of non-market maker participants on both the buying and selling sides of transactions; (3) timely and observable market prices; and (4) a high trading volume.17 As described above, a municipal obligation is required to be liquid and readily-marketable as of the date of calculation to be treated as a level 2B liquid asset under the interim final rule.

As part of the interim final rule, the Board is rescinding the 2016 Amendments so that municipal obligations under the Board's LCR rule will be treated consistently with section 403 of the EGRRCPA. As a result of the above changes, covered companies will be able to count municipal obligations as HQLA that qualify as level 2B liquid assets, provided the municipal obligations meet the HQLA criteria under the LCR rule.18 Accordingly, covered companies will have greater flexibility in meeting the minimum requirements under the LCR rule as more types of assets will be eligible as HQLA. For FDIC- and OCC-regulated institutions, these changes will mark the first time that such institutions may treat any municipal obligations as HQLA. For Board-regulated institutions, these changes are expected to broaden the number of municipal obligations that can be counted as HQLA. In particular, for purposes of the types of assets eligible for treatment as HQLA, municipal obligations will no longer be required to be general obligation securities.19 As a result, many issuances of revenue bonds will now qualify as municipal obligations.

Only municipal obligations that meet the LCR rule's definition for liquid and readily-marketable and that are investment grade under 12 CFR part 1 will qualify for treatment as HQLA under this interim final rule.20 The interim final rule does not otherwise affect covered companies' obligations under the LCR rule.

The definition of “municipal obligation” and the criteria for treating municipal obligations as level 2B liquid assets were established by section 403 of the EGRRCPA. Consistent with section 403, in what ways, if any, could the agencies clarify aspects of these provisions (e.g., by clarifying the terms “state” or “political subdivision”)? The agencies invite comment on this question and all other aspects of this interim final rule.

The agencies are issuing the interim final rule without prior notice and the opportunity for public comment and the 30 day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA).21 Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required prior to the issuance of a final rule if an agency, for good cause, finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 22

Background

On August 4, 2016, Ultramagic S.A. (Ultramagic) applied for a change to Type Certificate (TC) No. B02CE 1 to include new basket Model no. CV-08 for balloon Models M-56, M-56C, M-65, M-65C, M-77, M-77C, M-90, M-105, M-120, M-130, M-145, M-160, N-180, N-210, N-250, N-300, N-355, N-425, S-70, S-90, S-105, S-130, S-160, T-150, T-180, T-210, V-56, V-65, V-77, V-90, and V-105. The CV-08 basket consists of a traditionally constructed basket, but incorporates seats with restraints and trays for all passengers, as well as a lower basket sidewall to offer a panoramic view for passengers. The CV-08 basket will be matched with one of the balloon envelopes associated with the balloon models listed in these special conditions. The volume of hot air, gores, maximum diameter, and total height defines the balloon envelope.

Most balloon baskets accommodate standing passengers. The CV-08 differs by incorporating passenger seats, restraints, and a lower basket sidewall. Due to the lower sidewall and seat configuration, passengers would need to remain seated and restrained with safety belts during flight. This configuration should consider the static strength of the installations, the possible loads in an accident, and the effect on passenger safety. Accident impact should consider safety comparison between a restrained, sitting occupant; and a normal, standing occupant. Safety requirements for balloon-seated occupants are not included in the existing airworthiness regulations. These special conditions evaluate the seat installations and restraints using methods consistent with special conditions issued by the European Aviation Safety Agency (EASA). The EASA special conditions are based upon a German standard for seats in hot air airships.

Under the provisions of § 21.101, Ultramagic must show that the M-56, M-56C, M-65, M-65C, M-77, M-77C, M-90, M-105, M-120, M-130, M-145, M-160, N-180, N-210, N-250, N-300, N-355, N-425, S-70, S-90, S-105, S-130, S-160, T-150, T-180, T-210, V-56, V-65, V-77, V-90, and V-105 balloon models—coupled with the CV-08 basket—continues to meet the applicable provisions of the regulations incorporated by reference in TC No. B02CE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in TC No. B02CE are as follows:

14 CFR 21.29 and part 31, effective on January, 1990, as amended by 31-1 through 31-5 inclusive.

Equivalent level of Safety findings per provision of 14 CFR 21.21(b)(1):

Special Conditions 31-001-SC applicable to MK-32 model burners.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 31) do not contain adequate or appropriate safety standards for the balloon models listed in these special conditions because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model(s) for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the FAA would apply these special conditions to the other model under § 21.101.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

The M-56, M-56C, M-65, M-65C, M-77, M-77C, M-90, M-105, M-120, M-130, M-145, M-160, N-180, N-210, N-250, N-300, N-355, N-425, S-70, S-90, S-105, S-130, S-160, T-150, T-180, T-210, V-56, V-65, V-77, V-90, and V-105 balloon models coupled with a CV-08 basket will incorporate the following novel or unusual design features:

Occupant seats with restraints and a lowered basket side rail.

Neither the FAA's airworthiness standards (14 CFR part 31, amendment 31-5), nor EASA's current Certification Specification (CS) for Hot Air Balloons (CS 31HB, amendment 1), incorporate specific requirements for seat and seat belts.

EASA previously published a proposed special condition 2 (now expired) for seats and seat belts for hot air balloon baskets. EASA based the requirements of its proposed special condition on the German airworthiness requirements for Hot Air Airships LFHLLS,3 incorporating hot air balloon basket requirements for seats, seat belts, and the loads in an emergency landing condition, similar to hot air airship requirements. Ultramagic's change application applied the language in the EASA proposed special condition for CS 31HA.14(c), “Occupant mass,” CS 31HA.43(d), “Fitting factor,” CS 31HA.561(a) and (b)(1), “Emergency landing conditions—General,” and CS 31HA.785(a), (c), and (d), “Seats and seat belts” to the CV-08 basket. The FAA finds that these standards are appropriate for a seated, restrained occupant.

Notice of proposed special conditions No. 31-18-01-SC for the Ultramagic Balloon Models M-56, M-56C, M-65, M-65C, M-77, M-77C, M-90, M-105, M-120, M-130, M-145, M-160, N-180, N-210, N-250, N-300, N-355, N-425, S-70, S-90, S-105, S-130, S-160, T-150, T-180, T-210, V-56, V-65, V-77, V-90, and V-105 was published in the Federal Register on June 25, 2018 (83 FR 29472). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Model M-56, M-56C, M-65, M-65C, M-77, M-77C, M-90, M-105, M-120, M-130, M-145, M-160, N-180, N-210, N-250, N-300, N-355, N-425, S-70, S-90, S-105, S-130, S-160, T-150, T-180, T-210, V-56, V-65, V-77, V-90, and V-105 balloons. Should Ultramagic apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.

This action affects only certain novel or unusual design features on the balloon models specified in these special conditions. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane. These special conditions are identical in intent to the EASA special conditions, although the formatting has been altered to meet these special condition requirements.

The authority citation for these special conditions is as follows:

For calculation purposes, it should be assumed the mass of an occupant is at least 86 kilograms (190 pounds).

For each seat, safety belt, and harness, its attachment to the structure must be shown, by analysis, tests, or both, to be able to withstand the inertia forces prescribed in paragraph (c) of these special conditions multiplied by a fitting factor of 1.33.

The balloon—although it may be damaged under emergency landing conditions—must be designed to give each occupant every reasonable chance of avoiding serious injury in a crash landing—when seat belts provided for in the design are properly used—and the occupant is subject to the following ultimate inertia forces acting relative to the surrounding structure as well as independently of each other.

(1) Each seat and its supporting structure must be designed for an occupant mass in accordance paragraph (a) of these special conditions and for the maximum load factors corresponding to the specified flight and ground load conditions, including the emergency landing conditions prescribed in paragraph (c) of these special conditions.

(2) Each seat or berth shall be fitted with an individual approved seat belt or harness.

(3) Seat belts installed on the balloon must not fail under flight or ground load conditions or emergency landing conditions in accordance with paragraph (c) of these special conditions, taking into account the geometrical arrangement of the belt attachment and the seat.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2015-02-17, Amendment 39-18084 (80 FR 4762, January 29, 2015) (“AD 2015-02-17”). AD 2015-02-17 applied to all Airbus Model A330-200, A330-200 Freighter, and A330-300 series airplanes. The NPRM published in the Federal Register on April 16, 2018 (83 FR 16248). The NPRM was prompted by a determination that replacement or modification of the two FWCs is necessary to address the identified unsafe condition. The NPRM proposed to require the replacement or modification of the two FWCs. The NPRM also proposed to remove airplanes from the applicability. We are issuing this AD to address the identified unsafe condition.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0105R1, dated July 17, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A330-200, A330-200 Freighter, and A330-300 series airplanes. The MCAI states:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. The NPRM published in the Federal Register on May 3, 2018 (83 FR 19466). The NPRM was prompted by a determination that more restrictive maintenance requirements and airworthiness limitations are necessary. The NPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate the specified maintenance requirements and airworthiness limitations.

We are issuing this AD to address the failure of certain life-limited parts, which could result in reduced structural integrity of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0215, dated October 24, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0361.

We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

Airbus SAS has issued Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 1 Safe Life Airworthiness Limitations (SL-ALI), Revision 05, Issue 02, dated April 19, 2017. This service information describes new maintenance requirements and airworthiness limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

We estimate the following costs to comply with this AD:

We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

(2) Is not a “significant rule” under 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 amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain ATR-GIE Avions de Transport Régional Model ATR42-200, -300, and -320 airplanes. The NPRM published in the Federal Register on May 9, 2018 (83 FR 21191). The NPRM was prompted by a determination that more restrictive maintenance instructions and airworthiness limitations are necessary. The NPRM proposed to require updating the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0221R1, dated December 15, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all ATR-GIE Avions de Transport Régional Model ATR42-200, -300, and -320 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0391.

We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.

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

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

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

ATR-GIE Avions de Transport Régional has issued ATR42-200/-300/-320, Time Limits Document (TL), Revision 8, dated October 17, 2016. This service information describes life limits and maintenance requirements for the affected airplanes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 33 airplanes of U.S. registry.

We estimate the following costs to comply with this AD.

We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

(2) Is not a “significant rule” under 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 amends 14 CFR part 39 as follows:

The Commission is revising the delegations of authority to its General Counsel as a result of the Commission's experience with its existing rules and to increase the efficiency of the adjudicatory process. The changes make available to that process the resources of the Office of the General Counsel in timely disposing of procedural and other prehearing matters that are typically of a routine or non-controversial nature. Congress has authorized such delegation by Public Law 87-592, 76 Stat. 394, 15 U.S.C. 78d-1(a), which provides that the Commission “shall have the authority to delegate, by published rule or order, any of its functions to . . . an employee or employee board, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business or matter.”

Accordingly, the Commission is amending its rules to delegate authority to the General Counsel to determine procedural requests and other non-dispositive, prehearing matters with respect to administrative proceedings conducted pursuant to the Securities Act of 1933, 15 U.S.C. 77a et seq., the Securities Exchange Act of 1934, 15 U.S.C. 78a et seq.; the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq.; the Investment Advisers Act of 1940, 15 U.S.C. 80b-1 et seq.; and the provisions of Rule 102(e) of the Commission's Rules of Practice, 17 CFR 201.102(e), that have been set for hearing before the Commission. Under this delegation, the General Counsel (or, under his or her direction, such persons as might be designated from time to time by the Chairman of the Commission) would perform functions such as fixing times and places for hearings after a proceeding has been authorized; adjusting or cancelling hearing dates; setting or modifying briefing schedules; staying the proceeding pending a related criminal proceeding or the Commission's consideration of an offer of settlement; reducing or extending the time within which to file papers; modifying length limitations; denying or granting leave to file motions and other papers; resolving applications for confidential treatment or to maintain materials under seal; making rulings regarding the manner or timing of service or of the Division of Enforcement's production of its investigative file; directing that the parties meet for a prehearing conference and scheduling or cancelling such a conference; issuing an order to show cause if a party fails to answer, respond to a dispositive motion, or otherwise defend the proceeding within the time provided; striking procedurally deficient filings; and other similarly routine matters that arise in administrative proceedings.

The Commission does not delegate to the General Counsel functions with respect to issuing subpoenas, authorizing depositions, ruling upon the admissibility of evidence or upon motions to quash or to compel, presiding over a hearing or the taking of testimony, sanctioning a party, acting upon a dispositive motion, declaring a default, disposing of a claim or defense, or otherwise resolving or terminating the proceeding on the merits. This rule also does not affect the delegation of functions with respect to administrative proceedings conducted before an administrative law judge or other hearing officer, proceedings in which an initial or recommended decision has been issued, or proceedings in which a final order of the Commission has been issued.

With respect to any proceeding in which the Chairman or the General Counsel has determined that separation of functions requirements or other circumstances would make inappropriate the General Counsel's exercise of such functions, those functions are delegated to the Secretary of the Commission. Notwithstanding this delegation, the General Counsel may submit any matter he or she believes appropriate to the Commission. Furthermore, any action made by the General Counsel pursuant to delegated authority would be subject to Commission review as provided by Rules 430 and 431 of the Commission's Rules of Practice, 17 CFR 201.430-201.431 and 15 U.S.C. 78d-1(b). Additionally, being of an inherently preliminary and interlocutory nature, any such action may be revisited by the Commission, on its own initiative or on request of a party, at any time before the Commission's issuance of a final order resolving the proceeding.

The Commission finds, in accordance with the Administrative Procedure Act (“APA”), 5 U.S.C. 553(b)(3)(A), that these revisions relate solely to agency organization, procedures, or practice and do not constitute a substantive rule. Accordingly, the APA's provisions regarding notice of rulemaking, opportunity for public comment, and advance publication of the amendments prior to their effective date are not applicable. These changes are therefore effective on August 31, 2018. For the same reason, and because these amendments do not affect the rights or obligations of non-agency parties, the provisions of the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(3)(C), are not applicable. Additionally, the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., which apply only when notice and comment are required by the APA or other law, are not applicable. These amendments do not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995, and in any event, agency information collections during the conduct of administrative proceedings are exempt from that Act. See 44 U.S.C. 3518(c)(1)(B)(ii); 5 CFR 1320.4. Further, because the amendments impose no new burdens on private parties, the Commission does not believe that the amendments will have any impact on competition for purposes of Section 23(a)(2) of the Exchange Act.

This rule is adopted pursuant to statutory authority granted to the Commission, including Section 19 of the Securities Act, 15 U.S.C. 77s; Sections 4A, 4B, and 23 of the Exchange Act, 15 U.S.C. 78d-1, 78d-2, and 78w; Section 38 of the Investment Company Act, 15 U.S.C. 80a-37; Section 211 of the Investment Advisers Act, 15 U.S.C. 80b-11; and Section 3 of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7202.

For the reasons set out in the preamble, the Commission is amending Title 17, Chapter II of the Code of Federal Regulations as follows:

This final rule is promulgated under the authority of the TVA Act, as amended, 16 U.S.C. 831-831ee, Title V of the Independent Offices Appropriations Act of 1955, 31 U.S.C. 9701, and OMB Circular No. A-25. Under Section 26a of the TVA Act, no obstructions affecting navigation, flood control, or public lands or reservations shall be constructed, operated, or maintained across, along, or in the Tennessee River System without TVA's approval. TVA has long considered nonnavigable structures such as floating cabins to be obstructions that require its approval. In addition, Section 9b of the TVA Act provides that TVA “may establish regulations to prevent the construction of new floating cabins.” 16 U.S.C. 831h-3(e).

TVA is a multi-purpose federal agency that has been charged by Congress with promoting the wise use and conservation of the resources of the Tennessee Valley region, including the Tennessee River System. In carrying out this mission, TVA operates a system of dams and reservoirs on the Tennessee River and its tributaries for the purpose of navigation, flood control, and power production. Consistent with those purposes, TVA uses the system to improve water quality and water supply and to provide a wide range of public benefits including recreation.

To promote the unified development and regulation of the Tennessee River System, Congress directed TVA to approve obstructions across, along, or in the river system under Section 26a of the TVA Act, as amended. “Obstruction” is a broad term that includes, by way of example, boat docks, piers, boathouses, buoys, floats, boat launching ramps, fills, water intakes, devices for discharging effluents, bridges, aerial cables, culverts, pipelines, fish attractors, shoreline stabilization projects, channel excavations, and nonnavigable houseboats. TVA also owns, as agent for the United States, much of the shoreline and inundated land along and under its reservoir system.

Since 1971, TVA has used its authority under Section 26a to prohibit the mooring on the Tennessee River System of new nonnavigable houseboats that are used primarily for habitation or occupation and not for navigation or water transportation. In particular, TVA amended its regulations in 1971 to prohibit the mooring or anchoring of new nonnavigable houseboats except for those in existence before November 21, 1971. Criteria were established then to identify when a houseboat was considered “navigable” and the conditions under which existing nonnavigable houseboats would be allowed to remain. These criteria were characteristics that TVA determined were indicative of real watercraft; i.e., boats or vessels that are designed and used primarily to traverse water. Since 1971, TVA has made minor changes to its regulations affecting nonnavigable houseboats, most notably in 1978 when TVA updated the prohibited mooring of nonnavigable houseboats on its reservoir system except for those in existence on or before February 15, 1978. The navigability criteria, however, largely have remained unchanged.

A “nonnavigable houseboat” under TVA's current regulations is identified as any houseboat not in compliance with the following criteria:

Built on a boat hull or on two or more pontoons;

Equipped with a motor and rudder controls located at a point on the houseboat from which there is forward visibility over a 180-degree range;

Compliant with all applicable state and federal requirements relating to vessels;

Registered as a vessel in the state of principal use; and

State registration numbers clearly displayed on the vessel.

Despite the nonnavigable houseboat prohibition, new nonnavigable houseboats in the form of floating cabins have been moored on TVA reservoirs. TVA estimates that approximately 2,000 floating cabins and older nonnavigable houseboats are now moored on TVA reservoirs. Some developers and owners of these floating cabins have asserted that they are not nonnavigable houseboats because they have been designed to meet the criteria for navigability in TVA's regulations. Whether or not this is true, these floating cabins are designed and used primarily for human habitation at a fixed location rather than for transportation or navigation. These floating cabins are a modern version of the pre-1978 nonnavigable houseboats that TVA addressed in its 1971 and 1978 regulatory actions. They are not in any real sense watercraft, and absent action by TVA, the mooring of floating cabins on TVA reservoirs will continue to increase. Until now, TVA has discouraged the increased mooring of floating cabins without using the full scope of its regulatory authority under the TVA Act.

In determining what action to take, TVA prepared an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act. This EIS assesses the environmental and socioeconomic impacts of different policies to address the proliferation of floating cabins and nonnavigable houseboats on TVA's reservoirs. TVA released a draft of this EIS for public comment in June 2015 and held four public meetings and a webinar to provide information about its analyses and to facilitate public involvement. Public reaction to this situation widely varied.

Many members of the general public urged TVA to require the removal of all floating cabins because TVA's reservoirs are public resources and owners of floating cabins are occupying public areas. Floating cabin owners generally supported additional reasonable regulation of their structures but argued against policies requiring their removal because of the investments they have made in the structures. Other commenters had concerns about discharges of black (sewage) and gray (showers, sinks, etc.) water from floating cabins and shock and electrocution risks associated with the electrical connections to floating cabins. Commenting agencies consistently supported better regulation of floating cabins. The final EIS and associated documents can be found at https://www.tva.com/Environment/Shoreline-Construction/Floating-Cabins.

After considering the comments it received during the EIS process and its analyses of impacts, TVA identified as its preferred policy one that establishes standards for floating cabins to enhance compliance with applicable water quality discharge requirements set by other agencies, adherence to electrical safety codes, and location of floating cabins within identified harbor limits of commercial marinas. Under the preferred policy, the mooring of additional floating cabins would be prohibited on the Tennessee River System of which TVA reservoirs are a part. All existing floating cabins, including nonnavigable houseboats, would have to be removed from the Tennessee River System by January 1, 2036, and be subject to a regulatory program in the interim. On May 5, 2016, the TVA Board of Directors adopted the preferred policy with one exception—the Board changed the removal date to May 5, 2046.

On December 16, 2016, the Water Infrastructure Improvements for the Nation Act (WIIN Act) was enacted by the United States Congress. Title IV Section 5003 related to floating cabins and amended the TVA Act to include Section 9b. This new section of the TVA Act specifically addresses floating cabins and provides that TVA may allow the use of floating cabins where the structure was located on waters under TVA's jurisdiction as of December 16, 2016; and where the owner maintains the structure in accordance with reasonable health, safety, and environmental standards set by the TVA Board of Directors. Section 9b also states that TVA may establish regulations to prevent the construction of new floating cabins and may levy fees to ensure compliance.

Section 9b provides the circumstances under which TVA may require the removal of existing floating cabins; i.e., those located on waters under TVA's jurisdiction as of December 16, 2016. For existing floating cabins that have a TVA permit as of December 16, 2016, TVA may not require their removal for 15 years; i.e., until December 16, 2031. For existing floating cabins without permits on December 16, 2016, TVA may not require their removal for five years; i.e., until December 16, 2021. During these 15- and 5-year periods, however, TVA may levy necessary and reasonable fees to ensure compliance with TVA's regulations. The new legislation also provides that, with respect to existing floating cabins, TVA “shall approve and allow the use of the floating cabin on waters under the jurisdiction of [TVA] at such time and for such duration as (i) the floating cabin meets the requirements of [16 U.S.C. 831h-3(b)]; and (ii) the owner of the floating cabin has paid any fee assessed pursuant to [16 U.S.C. 831h-3(c)].” 16 U.S.C. 831h-3(d)(1)(B).

Section 9b of the TVA Act defines “floating cabin” as a watercraft or other floating structure (1) primarily designed and used for human habitation or occupation; and (2) not primarily designed or used for navigation or transportation on the water. This final rule clarifies the type of structure that TVA will regulate as a floating cabin and updates TVA's regulations to clarify that floating cabins placed on TVA waters after December 16, 2016, are prohibited. The final rule also establishes limited mooring requirements; clarifies limitations on expansions; and requires all owners of floating cabins to register their structures with TVA by January 1, 2020, regardless of whether they already have a Section 26a permit. Although this deadline allows plenty of time for owners to register their floating cabins, TVA encourages owners to begin the registration process without delay. A subsequent rulemaking will address: (1) The permitting process for existing floating cabins; (2) health, safety, and environmental standards; and (3) fees.

To more clearly describe the type of floating structure that TVA regulates, the term “nonnavigable houseboat” will be replaced in TVA's Section 26a regulations with the term “floating cabin,” the term adopted by Congress in the WIIN Act. Floating cabins are structures determined by TVA, in its sole judgment, to be designed and used primarily for human habitation or occupation and not designed or used primarily for navigation or transportation on the water. TVA's judgment will be guided by, but not limited to, the following factors:

1. Whether the structure is usually kept at a fixed mooring point;

2. Whether the structure is actually used on a regular basis for transportation or navigation;

3. Whether the structure has a permanent or continuous connection to the shore for electrical, plumbing, water, or other utility service;

4. Whether the structure has the performance characteristics of a vessel typically used for navigation or transportation on the water;

5. Whether the structure can be readily removed from the water;

6. Whether the structure is used for intermittent or extended human-habitation or occupancy;

7. Whether the structure clearly has a means of propulsion and appropriate power/size ratio;

8. Whether the structure is safe to navigate or use for transportation purposes.

Existing floating cabins, i.e., those located on the Tennessee River System on or before December 16, 2016, may continue to be moored in the following locations: Within harbor limits of a commercial marina; if the floating cabin is not associated with a marina, along shoreline approved in writing by TVA on or before December 16, 2016; where moored prior to December 16, 2016, along shoreline where land rights exist for a Section 26a permit; or, where moored prior to December 16, 2016, along shoreline where the owner of the floating cabin is the owner or lessee of the proposed mooring location. To prevent sprawl and to better contain the impacts of floating cabins, TVA will not allow an existing floating cabin to relocate except to the harbor limits of a commercial marina that complies with 18 CFR 1304.404, the TVA regulation governing commercial marina harbor limits. In some cases, existing floating cabins moored at a commercial marina are located outside of the designated harbor limits or the marina's land ownership has changed since the harbor limits were originally designated. In these and other situations, TVA may require a floating cabin to relocate to another location within the marina's harbor limits. Relocations to alternate marinas would require advance approval from TVA in the form of a new permit.

Separate from the amendments to regulations concerning floating cabins, the final rule would result in a minor change to clarify TVA's intent concerning the size of some water-use facilities (e.g., docks). The current regulation requires water-use facilities to be sited within a 1000-square-foot rectangular or square area. The proposed change would allow some water-use facilities to be as large as 1800 square feet, but only in one of two circumstances (1) where the water-use facility will be located in a subdivision recorded before November 1, 1999, and TVA permitted at least one water-use facility in the subdivision prior to November 1, 1999; or (2) if there is no subdivision, where the water-use facility will be located within a quarter-mile radius of another water-use facility that TVA permitted prior to November 1, 1999. TVA's current waiver or variance provisions, set forth in §§ 1304.212 and 1304.408 respectively, may allow even larger facilities where an applicant requests and justifies a waiver or variance, but such allowances shall be made in TVA's discretion and on a case-by-case basis.

TVA received 32 comments during the public review period consisting of three letters and 29 emails. This includes one comment that TVA received after the comment-close date, which TVA will include. Comments were received from 28 individuals and four representatives of nongovernmental organizations. The following discussion describes the comments received, provides TVA's response to the comments, and describes changes, if any, made by TVA to the rule based on the comments. Although several of the submitted comments do not pertain to the proposed rule published on January 17, 2018, TVA appreciates the perspectives, interests, and concerns expressed by all commenters.

Some of the comments were outside the scope of this rule and were more germane to the next phase of rulemaking where TVA will address: (1) The permitting process for existing floating cabins; (2) health, safety, and environmental standards; and (3) fees. Since August 2017, TVA has worked with a representative stakeholder group to develop more detailed rules and standards to guide future regulation of floating cabins. TVA expects to publish this second proposed rule and take public comments at a later date in 2018.

Comment: Some commenters stated that TVA's regulations, standards, inspections, and fees should not discriminate against floating cabin owners and should apply consistently to all structures on TVA reservoirs such as private residential docks. Commenters asserted it is unfair and unreasonable to treat floating cabins differently from other 26a permitted structures. Some commenters stated that TVA is focusing on something that has never been a problem and docks are far more dangerous to navigation.

TVA Response: Section 26a of the TVA Act requires the advance written approval of TVA for all floating cabins, private residential docks, and other obstructions. Since 1971 TVA has recognized the necessity to prohibit construction of new nonnavigable houseboats (the early version of floating cabins) and establish regulations exclusively for their authorization and management on TVA reservoirs. This was due to their unique nature as a habitable enclosed structure, amenities, and their impacts on navigation, public land, and water quality. The 2016 WIIN Act allows existing floating cabins to remain on the water only if the owner maintains the structure in accordance with reasonable health, safety, and environmental standards set by the TVA Board of Directors.

TVA has previously established corresponding standards for private residential water use facilities. Subparts C and D of the TVA Section 26a regulations set forth the standards for private water use facilities such as boat docks in substantial detail and restrict these facilities in ways that floating cabins are not restricted. For example, living space or sleeping areas are prohibited; enclosed space is limited to 32 square feet for storage; and toilets, sinks, and electrical appliances are not allowed. Electrical lines and service to private docks must be installed in compliance with all State and local electrical codes (satisfactory evidence of compliance to be provided to TVA upon request); and electrical service must be installed with an electrical disconnect that is located above the 500-year floodplain or flood risk profile whichever is higher, and is accessible during flood events.

Floating cabins raise unique safety concerns because many have electrical service supplied by submerged electrical lines, and many are equipped with household appliances.

Concerning the impact of floating cabins, in its Environmental Impact Statement, TVA used an extensive amount of existing information and additional data collection and analysis to support its finding of potential impacts to human health and the environment from floating cabins. The finding of potential impacts are based on existing information, literature on the known effects on resources, comments by agencies and the public about impacts that they experience, internal TVA resource specialists, and professional judgment. The potential adverse impacts from sewage discharges into public waterways and the risk and potential harm to the public safety from poorly maintained electrical wiring are well established and understood. TVA acknowledged that the severity of current impacts is not well-sourced in available information. For example, TVA states that adverse water quality impacts cannot currently be associated with floating cabins, but available information, including the literature, supports TVA's conclusion that the severity of impacts will increase if the proliferation of floating cabins is not controlled and operating standards are not established. It is appropriate that TVA acts to address such potential impacts before they become severe.

Comment: I fail to see the distinction between my in-harbor water access for which I pay a monthly marina fee and TVA gets money from the marinas and the distinction between houseboats who move twice a year, and certainly between docks that literally jut out into the water in public (non-harbor-limits) that are not subject to annual fees as is proposed.

TVA Response: TVA is authorized by the WIIN Act to charge compliance fees for floating cabins. Additionally, permit requests for private water use facilities such as docks are usually considered only where the applicant owns the shoreline, or as an adjacent landowner possesses the necessary deeded land rights over TVA land to the reservoir.

TVA does not promulgate rules for vessels, only for obstructions. Vessels such as factory houseboats and wake board boats are regulated by the States and the U.S. Coast Guard. The States mandate and charge for vessel registration. EPA and the Coast Guard issue rules for the proper handling of sewage and waste from vessels. The Coast Guard regulates the building and manufacturing of recreational boats including houseboats under 33 CFR part 183. This includes regulation of electrical and fuel systems, ventilation, loading capacity, and flotation requirements.

Habitable structures such as floating cabins are subject to the same local, state, and federal laws and ordinances for management of sewage and waste water that apply to residences on land.

Comment: Why do factory houseboats get to dump their grey water in the lake and no one goes after them or wake board boats get to intake water and then release out as grey water. Consider these differences in your evaluation as it seems to be so one-sided.

TVA Response: The regulation of black water and gray water discharges is outside the scope of this rulemaking, but TVA notes that such discharges are regulated by the Coast Guard for vessels and by state agencies that are responsible for issuing National Pollutant Discharge Elimination System (NPDES) permits for facilities that discharge sewage or other wastewaters.

Comment: TVA has no interest in safety issues on shoreline docks and factory houseboats and there are far more of these in bad condition that should be subject to inspections.

TVA Response: TVA disagrees. Current TVA Section 26a regulations and all permits require the owner to complete the approved facility in accordance with approved plans, and maintain it in a good state of repair and in good, safe, and substantial condition. If a facility is found to be in violation of the permit or in abandoned or derelict condition, the permit can be revoked and the owner required to remove the facility. TVA performs periodic compliance inspections along the shoreline to review existing facilities and detect violations. Also, see response to Comment Group 1.

The States are responsible for enforcing boating laws, and the Coast Guard regulates the building and manufacturing of recreational boats including houseboats under 33 CFR part 183. This involves areas such as electrical and fuel systems, ventilation, loading capacity, and flotation requirements.

Comment: I request that you not overreach on Section 9b of the act thus creating a sunset, even though the sunset provision was overturned in the Water Rights Act.

TVA Response: TVA will comply with Section 9b of the TVA Act as directed by the 2016 WIIN Act. There is no sunset provision in any existing or proposed regulations for floating cabins.

Comment: I believe that our sizable investment should remain for us, our kids and our grandkids. Our “floating cabin” is within the harbor boundaries of a very nice marina, out of the main traffic flow, has holding tanks for both black and gray water and a signed contract for weekly pump outs. In addition, insurance is mandatory, as are slip fees for both our “floating cabin” as well as our pontoon boat. With concern for my kids and grandkids who are just learning to boat, ski, swim and fish; we all insist on a clean and safe environment. In addition, these recreational activities provide countless jobs for the restaurants, marinas, shops and service providers in the area.

TVA Response: TVA will comply with Section 9b of the TVA Act as directed by the 2016 WIIN Act. There is no sunset provision in any existing or proposed regulations for floating cabins.

Comment: Numerous commenters identified issues and made recommendations that do not pertain to the proposed amendments but will pertain to the next rulemaking phase. These included comments about the need for the following requirements: For sewage to be pumped or incinerated on board; for floating cabin owners to document the pump-out of sewage; for owners to maintain their floating cabins in a good state of repair; for TVA to offer a buy-back program to reduce the number of floating cabins; for TVA later to offer a limited number of permits back to the public; for floating cabins to be safe, clean, and well-maintained; for fees and regulations that incorporate the public's input and that take into account the impact on owners of floating cabins on Boone Reservoir; for a prohibition on the use of unencased Styrofoam; for mooring lines to have reflective markers or buoys at locations that show boaters the angle of the cables under the water; and for buoys, lights, and signs to warn of navigation and electrocution risks.

TVA Response: TVA acknowledges and appreciates these comments and anticipates the stated issues and recommendations will be addressed in the next rulemaking phase.

Comment: A number of commenters stated that they believed that floating cabins are an inappropriate private use of public resources. Floating cabins were referred to as “squatting” on public waters by one commenter who also urged a no expansion policy and complete compliance of these structures with all environmental and safety regulations. One commenter stated that any plan that allows floating cabins to remain is unacceptable. Another commenter stated that allowing people to live in floating cabins is unfair to the original landowners who had to leave their property when the dams were built. One commenter stated that TVA's mission requires the agency to preserve the environment by removing floating cabins from the river.

TVA Response: TVA will comply with the direction provided by the U.S. Congress in the WIIN Act of 2016, which established Section 9b of the TVA Act. That legislation underscored TVA's authority to regulate floating cabins, and expressly stated that TVA could prohibit floating cabins that were not located on waters under TVA's jurisdiction as of December 16, 2016. Thus, this final rule clarifies that new structures are prohibited, which will prevent the proliferation of new structures and allow TVA to remove such new structures.

With respect to existing floating cabins that were located on waters under TVA jurisdiction prior to or on December 16, 2016, the WIIN Act prohibits removal for a period of 5 or 15 years from December 16, 2016, depending on whether the existing floating cabin received a TVA permit prior to December 16, 2016. After that, existing floating cabins may remain if: Maintained in compliance with reasonable standards as required by the TVA Board; fees are paid that are necessary and reasonable for ensuring compliance; a Section 26a permit is obtained by the deadline provided in the next phase of rulemaking; and the floating cabin remains in compliance with the terms and conditions of the permit.

Comment: TVA has attempted unsuccessfully to reduce the mooring of floating cabins on the waters that it governs without using the full extent of its legal powers. This suggests that it is time for a more forceful solution. Furthermore, a 30-year grace period for removal of all existing houseboats is more than fair, given that the statute only requires 15 years to require removal. 16 U.S.C.A. 831h-3(d)(1)(A). While negative economic impacts on regulated parties are never desirable, preserving the nation's water quality is of paramount importance. Prioritizing the needs of floating cabin owners over those people who make their living off the pristine environment of the Tennessee River Basin is unfair, and short sighted. In order to fulfill the purpose of Tennessee Valley Authority to preserve the environment of this area while promoting unified economic development, these floating cabins must be removed from the river.

TVA Response: TVA recognizes the public's concern with this issue. In its Environmental Impact Statement, TVA's Preferred Policy would have required the removal of existing floating cabins after 30 years; however, Congress's passage of the WIIN Act prevents TVA from mandating removal after 30 years. The WIIN Act does underscore TVA's authority to prohibit new structures, however, which this final rule amendment clarifies. Only structures located on waters under TVA's jurisdiction by December 16, 2016 may remain, and those structures must comply with TVA's standards and fees. Structures installed after that date are prohibited, and TVA has the authority to remove them. Thus, the WIIN Act and this final rule help stop the proliferation of floating cabins.

Comment: A few commenters objected to TVA's preferred alternative in TVA's Environmental Impact Statement to remove floating cabins by 2036, and the TVA Board's May 2016 Policy in which TVA determined that existing floating cabins should be removed by 2046. One commenter stated that TVA should change the removal date to 2036.

TVA Response: These comments pertain to the management alternatives considered in the Floating Houses Policy Review EIS (February 2016). Although the TVA Board approved a policy on May 5, 2016, incorporating Alternative B2 from TVA's EIS with a 30-year “sunset” provision, that policy has been modified by subsequent legislation. In particular, the WIIN Act of 2016 amended the TVA Act to prevent the removal of floating cabins where (1) the floating cabins remain in compliance with TVA standards and fees and (2) the floating cabins existed on waters under TVA's jurisdiction on or prior to December 16, 2016. Thus, there is no longer a sunset provision mandating removal of floating cabins in the future. As a result, Alternative B1 from TVA's EIS is being implemented for the future management of floating cabins.

Comment: Numerous commenters expressed general support for the final rule amendments. Many commented that TVA's documentation, inventory, registration and inspection of floating cabins is an appropriate way to ensure owners are accountable for properly maintaining their structures. Others emphasized that TVA should regularly and fairly enforce the regulations. One commented that the rule should apply to houseboats as well.

TVA Response: TVA acknowledges these comments and agrees with the need to have reasonable standards and rules, have consistent enforcement of regulations, and avoid any burdensome requirements. Fees will be set only to the extent needed to offset TVA's costs for ensuring compliance as contained in Section 9b of the TVA Act and as directed by the WIIN Act of 2016.

TVA does not regulate vessels or enforce boating laws. The States and the U.S. Coast Guard have this responsibility and authority. The Coast Guard regulates the building and manufacturing of recreational boats including houseboats under 33 CFR part 183. This involves areas such as electrical and fuel systems, ventilation, loading capacity, and flotation requirements.

This final rule contains no federal mandates for state, local, or tribal government or for the private sector. TVA has determined it will not have a significant annual effect of $100 million or more or result in expenditures of $100 million in any one year by state, local, or tribal governments or by the private sector. The rule will not have a substantial direct effect on the States or Indian tribes, on the relationship between the Federal Government and the States or Indian tribes, or on the distribution of power and responsibilities between the federal Government and States or Indian tribes. Nor will the rule have concerns for environmental health or safety risks that may disproportionately affect children, have significant effect on the supply, distribution, or use of energy, or disproportionally impact low-income or minority populations. Unified development and regulation of the Tennessee River System through an approval process for obstructions across, along, or in the river system, and management of United States-owned land entrusted to TVA are federal functions for which TVA is responsible under the TVA Act. In general, the final rule updates or clarifies TVA's regulations to align them with the status quo. First, the final rule clarifies that no new structures are allowed and codifies (1) an updated definition for floating, habitable structures that are allowable on TVA reservoirs; (2) where such structures may be located; and (3) the types of modifications that are allowed. The final rule also amends TVA's regulations to align better with its policy for allowing some obstructions, usually docks, to be larger than 1000 square feet. Accordingly, the rule has no implications for any of the referenced authorities, including the Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs dated January 30, 2017, which affects only “significant regulatory actions” as defined by Executive Order 12866.

Under the Regulatory Flexibility Act, 5 U.S.C. 605, TVA is required to prepare a regulatory flexibility analysis unless the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The statute defines “small entity” as a “small business,” “small organization” (further defined as a “not-for-profit enterprise”), or a “small governmental jurisdiction.” Most applications for water-use facilities are submitted by residential landowners for personal use. Since residential landowners are not businesses, not-for-profit enterprises, or small governmental jurisdictions, there are relatively few “small entities” affected by TVA's final rule. Moreover, nothing in this rule significantly adds to the cost of applying for and constructing any regulated facility. Accordingly, this rule will not have a significant impact on a substantial number of small entities; no regulatory flexibility analysis is required; and TVA's Chief Executive Officer has made the requisite certification.

Title of Information Collection: Section 26a Permit Application.

Current OMB Approval Number: 3316-0060.

This rule contains information collection requirements for registration of floating cabins which have been submitted to the Office of Management and Budget (OMB) for approval. The information collection requirements under this rule will be included by amendment within the Section 26a Permit Application information collection. TVA provided burden information and requested comments on these requirements in the preamble to the proposed rule. No comments directed toward the information collection requirements were received.

The only information collection activity contained in the rule is a requirement that owners of floating cabins register them with TVA. The registration includes: Photographs of the structure, drawings showing the size and shape of the floating cabin and attached structures, such as decks or slips, in reasonable detail; and a completed and signed TVA registration form. The registration form includes the owner's mailing and contact information; the TVA permit or TVA-issued numbers; the mooring location; how the floating cabin is moored; how electrical service is provided; how waste water and sewage is managed; and an owner's signature.

The information is necessary and will be used pursuant to TVA Land Management activities and Section 26a of the Tennessee Valley Authority Act of 1933, as amended, which require TVA to collect information relevant to projects that will impact TVA land and land rights and review and approve plans for the construction, operation, and maintenance of any dam, appurtenant works, or other obstruction affecting navigation, flood control, or public lands or reservations across, along, or in the Tennessee River or any of its tributaries.

Respondents will be the owners of floating cabins. The estimated time to complete a registration is 2 hours. TVA estimates that, in the first year of the floating cabin registration process, the number of responses will increase from 1,500 to 3,700. Accordingly, the estimated burden will increase from 3,000 hours to 7,400 hours in the first year, and then return to about 3,000 hours in following years.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. TVA will publish a document in the Federal Register announcing OMB's approval.

For the reasons set out in the preamble, the Tennessee Valley Authority amends 18 CFR part 1304 of the Code of Federal Regulations as follows:

Legal Authority

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

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

Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance in schedule I of the CSA.2 The Acting Administrator transmitted notice of his intent to place N-ethylpentylone in schedule I on a temporary basis to the Acting Assistant Secretary for Health of HHS by letter dated November 22, 2017. The Acting Assistant Secretary responded to this notice of intent by letter dated December 13, 2017, and advised that based on a review by the Food and Drug Administration (FDA), there are currently no active investigational new drug applications or approved new drug applications for N-ethylpentylone. The Acting Assistant Secretary also stated that HHS has no objection to the temporary placement of N-ethylpentylone in schedule I of the CSA. The DEA has taken into consideration the Assistant Secretary's comments as required by 21 U.S.C. 811(h)(4). N-Ethylpentylone is not currently listed in any schedule under the CSA, and no exemptions or approvals are in effect for this substance under section 505 of the FDCA, 21 U.S.C. 355. The DEA has found that the control of N-ethylpentylone in schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety, and as required by 21 U.S.C. 811(h)(1)(A), a notice of intent to temporarily schedule N-ethylpentylone was published in the Federal Register on June 13, 2018. 83 FR 27520.

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

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

Available data and information for N-ethylpentylone, summarized below, indicate that this synthetic cathinone has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA's three-factor analysis and the Assistant Secretary's December 13, 2017 letter are available in their entirety under the tab “Supporting Documents” of the public docket of this action at www.regulations.gov under FDMS Docket ID: DEA-2018-0011 (Docket Number DEA-482).

Around 2014, the synthetic cathinone, N-ethylpentylone, emerged in the United States' illicit drug market after the scheduling of other popular synthetic cathinones (e.g., ethylone, 4-methyl-N-ethylcathinone (4-MEC), mephedrone, methylone, pentylone, and 3,4-methylenedioxypyrovalerone (MDPV)). The identification of N-ethylpentylone in forensic evidence and overdose deaths indicates that this substance is being misused and abused. Law enforcement encounters include those reported to the National Forensic Laboratory Information System (NFLIS), a DEA sponsored program that systematically collects drug identification results and associated information from drug cases analyzed by Federal, State, and local forensic laboratories, the System to Retrieve Information from Drug Evidence (STRIDE), a federal database for the drug samples analyzed by DEA forensic laboratories, and STARLiMS (a web-based, commercial laboratory information management system that replaced STRIDE in 2014). Forensic laboratories have analyzed drug exhibits received from Federal, State, or local, law enforcement agencies that were found to contain N-ethylpentylone.3 NFLIS registered over 6,000 reports from state and local forensic laboratories identifying this substance in drug-related exhibits for a period from January 2013 to December 2017 from 41 states. There were no occurrences of N-ethylpentylone reported in NFLIS for 2013. N-Ethylpentylone was first identified in NFLIS in May 2014. STRIDE/STARLiMS registered over 300 reports from DEA forensic laboratories from January 2013 to December 2017. There were no occurrences of N-ethylpentylone reported in STRIDE/STARLiMS for 2013. N-Ethylpentylone was first reported to STRIDE/STARLiMS in December 2015. Additionally, U.S. Customs and Border Protection (CBP) encounters of N-ethylpentylone have occurred.

N-Ethylpentylone, like other synthetic cathinones, is a designer drug of the phenethylamine class and it is pharmacologically similar to schedule I synthetic cathinones (e.g., cathinone, methcathinone, mephedrone, methylone, pentylone, and MDPV) and well-known schedule I and II sympathomimetic agents (e.g., methamphetamine, 3,4-methylenedioxymethamphetamine (MDMA), and cocaine). N-ethylpentylone, similar to these substances, causes stimulant related psychological and somatic effects. Consequently, there have been documented reports of emergency room admissions and numerous deaths associated with the abuse of N-ethylpentylone. No approved medical use has been identified for this substance, nor has it been approved by the FDA for human consumption.

N-Ethylpentylone is a synthetic cathinone of the phenethylamine class and it is structurally and pharmacologically similar to cathinone, methcathinone, mephedrone, methylone, pentylone, MDPV, methamphetamine, MDMA, and other schedule I and II substances. Thus, it is highly likely that N-ethylpentylone is abused in the same manner and by the same users as these substances. That is, N-ethylpentylone, like these substances, is most likely ingested by swallowing capsules or tablets or snorted by nasal insufflation of the powder tablets. Products containing N-ethylpentylone, similar to schedule I synthetic cathinones, are likely to be falsely marketed as “research chemicals,” “jewelry cleaner,” “stain remover,” “plant food or fertilizer,” “insect repellants” or “bath salts,” sold at smoke shops, head shops, convenience stores, adult book stores, and gas stations, and purchased on the internet. Like those seen with commercial products that contain synthetic cathinones, the packages of products that contain N-ethylpentylone also probably contain the warning “not for human consumption,” most likely in an effort to circumvent statutory restrictions for these substances. Demographic data collected from published reports and mortality records suggest that the main users of N-ethylpentylone, similar to schedule I synthetic cathinones and MDMA, are young adults.

Available evidence suggests that the history and pattern of abuse of N-ethylpentylone parallels that of MDMA, methamphetamine, or cocaine and that N-ethylpentylone has been marketed as a replacement for these substances. N-Ethylpentylone has been identified in law enforcement seizures that were initially suspected to be MDMA. In addition, there are reports that abusers of N-ethylpentylone thought they were using

MDMA or another illicit substance but toxicological analysis revealed that the psychoactive substance was N-ethylpentylone. Toxicology reports also revealed that N-ethylpentylone is being ingested with other substances including other synthetic cathinones, common cutting agents, or other recreational substances. Consequently, products containing synthetic cathinones, including N-ethylpentylone, are distributed to users, often with unpredictable outcomes. Thus, the recreational abuse of synthetic cathinones, including N-ethylpentylone, is a significant concern.

N-Ethylpentylone is a popular recreational drug that emerged on the United States' illicit drug market after the scheduling of other popular synthetic cathinones (e.g., ethylone, mephedrone, methylone, pentylone, and MDPV) (see DEA 3-Factor Analysis for a full discussion). Forensic laboratories have confirmed the presence of N-ethylpentylone in drug exhibits received from state, local, and federal law enforcement agencies. Law enforcement data show that N-ethylpentylone first appeared in the illicit drug market in 2014 with one encounter and began increasing thereafter.4 In 2015, NFLIS registered five reports from three states regarding N-ethylpentylone. However, in 2016, there were 2,074 reports from 39 states and, in 2017, there were 3,955 reports from 39 states related to this substance registered in NFLIS. N-Ethylpentylone represented 60% of all synthetic cathinones encountered by local law enforcement agencies and reported to NFLIS in 2017. From January 2013 to December 2017, NFLIS registered 6,035 reports from state and local forensic laboratories identifying this substance in drug-related exhibits from 41 states. STRIDE/STARLiMS registered over 338 reports from DEA forensic laboratories during January 2013 to December 2017. There were no occurrences of N-ethylpentylone reported in NFLIS or STRIDE/STARLiMS for 2013. Additionally, seizures of N-ethylpentylone have occurred by the U.S. Customs and Border Protection (CBP) beginning in 2016. Concerns over the continuing abuse of synthetic cathinones have led to the control of many synthetic cathinones.

The identification of N-ethylpentylone in toxicological samples associated with fatal and non-fatal overdoses have been reported in medical and scientific literature, forensic laboratory reports, and public health documents. Like schedule I synthetic cathinones, N-ethylpentylone has caused acute health problems leading to emergency department (ED) admissions, violent behaviors causing harm to self or others, and/or death. Adverse health effects associated with the abuse of N-ethylpentylone include a number of stimulant-like adverse health effects such as diaphoresis, insomnia, mydriasis, hyperthermia, vomiting, agitation, disorientation, paranoia, abdominal pain, cardiac arrest, respiratory failure, and coma. In addition, N-ethylpentylone has been involved in deaths of many individuals. The DEA is aware of approximately 151 overdose deaths involving N-ethylpentylone abuse reported in the United States between 2014 and 2018. Thus, the abuse of N-ethylpentylone, like that of the abuse of schedule I synthetic cathinones and stimulant drugs, poses significant adverse health risks. Furthermore, because abusers of synthetic cathinones obtain these substances through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent. These unknown factors pose an additional risk for significant adverse health effects to the end user.

Based on information received by the DEA, the misuse and abuse of N-ethylpentylone has led to, at least, the same qualitative public health risks as schedule I synthetic cathinones, MDMA, and methamphetamine. The public health risks attendant to the abuse of synthetic cathinones, including N-ethylpentylone, are well established and have resulted in large numbers of ED visits and fatal overdoses.

In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and/or abuse of N-ethylpentylone poses an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for this substance in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for N-ethylpentylone indicate that this synthetic cathinone has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Acting Administrator, through a letter dated November 22, 2017, notified the Acting Assistant Secretary of the DEA's intention to temporarily place this substance in schedule I. A notice of intent was subsequently published in the Federal Register on June 13, 2018. 83 FR 27520.

In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Acting Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule N-ethylpentylone in schedule I of the CSA, and finds that placement of N-ethylpentylone in schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety.

Because the Acting Administrator hereby finds that it is necessary to temporarily place N-ethylpentylone in schedule I to avoid an imminent hazard to the public safety, this temporary order scheduling this substance is effective on the date of publication in the Federal Register, and is in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2).

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

Upon the effective date of this temporary order, N-ethylpentylone will be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, engagement in research, and conduct of instructional activities or chemical analysis with, and possession of schedule I controlled substances including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, N-ethylpentylone must be registered with the DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312, as of August 31, 2018. Any person who currently handles N-ethylpentylone, and is not registered with the DEA, must submit an application for registration and may not continue to handle N-ethylpentylone as of August 31, 2018, unless the DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, and 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity of this substance in a manner not authorized by the CSA on or after August 31, 2018 is unlawful and those in possession of any quantity of this substance may be subject to prosecution pursuant to the CSA.

2. Disposal of stocks. Any person who does not desire or is not able to obtain a schedule I registration to handle N-ethylpentylone must surrender all currently held quantities of N-ethylpentylone.

3. Security. N-ethylpentylone is subject to schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 821, 823, 871(b), and in accordance with 21 CFR 1301.71-1301.93, as of August 31, 2018.

4. Labeling and Packaging. All labels, labeling, and packaging for commercial containers of N-ethylpentylone must be in compliance with 21 U.S.C. 825, 958(e), and be in accordance with 21 CFR part 1302. Current DEA registrants shall have 30 calendar days from August 31, 2018, to comply with all labeling and packaging requirements.

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

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

7. Reports. All DEA registrants who manufacture or distribute N-ethylpentylone must submit reports pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312 as of August 31, 2018.

8. Order Forms. All DEA registrants who distribute N-ethylpentylone must comply with order form requirements pursuant to 21 U.S.C. 828 and in accordance with 21 CFR part 1305 as of August 31, 2018.

9. Importation and Exportation. All importation and exportation of N-ethylpentylone must be in compliance with 21 U.S.C. 952, 953, 957, 958, and in accordance with 21 CFR part 1312 as of August 31, 2018.

10. Quota. Only DEA registered manufacturers may manufacture N-ethylpentylone in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of August 31, 2018.

11. Liability. Any activity involving N-ethylpentylone not authorized by, or in violation of the CSA, occurring as of August 31, 2018, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

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

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

Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.

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

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

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

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

The event director, Game On Inc., with approval from the North Carolina Department of Transportation, who owns and operates the U.S. 70 (Alfred A. Cunningham) Bridge across the Trent River, mile 0.0, at New Bern, NC, has requested a temporary deviation from the current operating regulations. This temporary deviation is necessary to accommodate participation by cyclists during the 30th Annual Bike MS: Historic New Bern Ride. The bridge is a double bascule bridge and has a vertical clearance in the closed position of 14 feet above mean high water.

The current operating schedule is set out in 33 CFR 117.843(a). Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 8:00 a.m. to 9:30 a.m. on September 8th and September 9th 2018. The Trent River is used by a variety of vessels including small commercial vessels and recreational vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.

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

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

The event director, DelMoSports, LLC, with approval from the New Jersey Department of Transportation, who owns and operates the US40-322 (Albany Avenue) Bridge across the NJICW (Inside Thorofare), mile 70.0, at Atlantic City, NJ, has requested a temporary deviation from the current operating regulations. This temporary deviation is necessary to accommodate the free movement of pedestrians and vehicles during the 3rd Annual Iron Man. The bridge is a double bascule bridge and has a vertical clearance in the closed position of 10 feet above mean high water.

The current operating schedule is set out in 33 CFR 117.733(f). Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 6 a.m. to 4 p.m. on September 23, 2018. The NJICW (Inside Thorofare) is used by recreational vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.

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

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

Burlington Northern Santa Fe (BNSF), the owner and operator of the BNSF swing span bridge across Charenton Canal, mile 0.4, at Baldwin, LA, requested a temporary deviation from the swing span drawbridge operating schedule to complete repairs, install a bridge deck, and change out a generator. The bridge has a vertical clearance of 10 feet in the closed-to-navigation position. The current operating schedule is set out in 33 CFR 117.5. The bridge currently opens on signal for the passage of vessels.

This temporary deviation allows the bridge to remain closed-to-navigation position for a 48 hour period from 10 p.m. on September 2, 2018 through 10 p.m. on September 4, 2018. Navigation on the waterway consists mainly of tugs with tows, with some commercial fishing vessels and recreational craft. The bridge will be able to open for emergencies, however, an alternate route is available for mariners through the Berwick Locks. The alternate waterway route takes approximately 45 minutes to transit. The Coast Guard has carefully considered the restrictions with waterway users in publishing this temporary deviation. Due to prior experience, as well as coordination with waterway users, and the alternate route through Berwick Locks, this closure will not have a significant effect on these vessels. The Coast Guard will also inform the waterway users of the change in operating schedule for the bridge through our Local Notice and Broadcast Notices to Mariners so that vessel operators can arrange their transits to minimize any impact caused by this temporary deviation.

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

I. Table of Abbreviations CFR—Code of Federal Regulations COTP—Captain of the Port DHS—Department of Homeland Security FR—Federal Register NPRM—Notice of proposed rulemaking §—Section U.S.C.—United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest to do so. There is insufficient time to allow for a reasonable comment period prior to the date of the event. The rule must be in force by September 2, 2018, to serve its purpose of ensuring the safety of spectators and the general public from hazards associated with the fireworks display. Hazards include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to mitigate the potential safety hazards associated with a fireworks display in this location.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks display on September 2, 2018, will be a safety concern for anyone within a 100-yard radius of the fireworks barge, which will be anchored in approximate position 38°36′35.93″ N, 075°09′31.00″ NW. This rule is needed to protect persons, vessels and the public within the safety zone during the fireworks display.

This rule establishes a temporary safety zone on the waters of Indian River Bay off Long Neck, NJ during a fireworks display from a barge. The event is scheduled to take place at 7:45 p.m. on September 2, 2018. The safety zone will extend 100 yards around the barge, which will be anchored at approximate position 38°36′35.93″ N, 075°09′31.00″ W. No person or vessel will be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the COTP Delaware Bay or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP Delaware Bay or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP Delaware Bay or a designated representative. The Coast Guard will provide public notice of the safety zone by Broadcast Notice to Mariners, and by on-scene actual notice.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

The impact of this rule is not significant for the following reasons: (1) Although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the COTP Delaware Bay or a designated representative, they may operate in the surrounding area during the enforcement period; (2) persons and vessels will still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the COTP Delaware Bay or a designated representative; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Broadcast Notice to Mariners and by on-scene actual notice.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable water in the Indian River Bay, during a fireworks display lasting approximately one hour. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard will enforce the safety zones in 33 CFR 165.786, Table to § 165.786, Line No. 9.1, from 6:30 a.m. until 4:30 p.m. on September 15, 2018, for the annual Swim for Alligator Reef Lighthouse in Islamorada, Florida. Our regulation for Recurring Safety Zones in Captain of the Port Key West Zone, § 165.786, Line No. 9.1, specifies the location of the regulated area as all within 50 yards in front of the lead safety vessel preceding the first event participants, 50 yards behind the safety vessel trailing the last event participants, and at all times extend 100 yards on either side of the safety vessels.

This action prevents vessels from transiting areas specifically designated as safety zones during the periods of enforcement. During the enforcement period, no person or vessel may enter, transit through, anchor within, or remain within the established regulated areas without approval from the Captain of the Port Key West or designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

The Coast Guard will provide notice of the regulated area by Local Notice to Mariners and Broadcast Notice to Mariners. If the Captain of the Port Key West determines that the regulated area need not be enforced for the full duration stated in this publication, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Department is correcting a clerical error in an amendment in FR Rule Doc. No. 2018-17480, which published on August 22, 2018, at 83 FR 42440. The rule removed outdated or superseded regulations in 34 CFR parts 200, 237, and 299. One of the amendments to part 200 intended to remove §§ 200.55 through 200.57. The heading to the amendment reflected that section span but its corresponding instruction (instruction 8) directed the removal of § 200.57 only. This document correctly removes §§ 200.55 and 200.56 as originally intended in the August 22, 2018, rule.

For reasons discussed in the preamble, the Secretary correctly amends 34 CFR part 200 as follows:

Particle pollution, also referred to as particulate matter (PM), is a complex mixture of small particles and liquid droplets suspended in the air, which causes adverse health effects and is the leading cause of visibility impairment in the United States. Particles with a diameter equal to or less than 2.5 microns, referred to as fine particulate matter or PM2.5, are either emitted directly into the atmosphere or are formed from the chemical reactions of precursor gases, such as sulfur dioxide (SO2), nitrogen oxides (NOX), certain volatile organic compounds (VOCs), and ammonia, in the atmosphere. SO2 and NOX are the primary precursors for the formation of PM2.5 and are emitted primarily from point sources as well as nonpoint, onroad, and nonroad sources.

On July 18, 1997, EPA promulgated a new 24-hour and a new annual NAAQS for PM2.5 (62 FR 38652). On October 17, 2006, EPA revised the NAAQS for PM2.5, tightening the 24-hour PM2.5 standard from 65 micrograms per cubic meter (µg/m3) to 35 µg/m3, and retaining the annual PM2.5 NAAQS at 15 µg/m3 (71 FR 61144). Subsequently, on December 14, 2012, EPA revised the level of the health based (primary) annual PM2.5 NAAQS to 12 µg/m3. See 78 FR 3086 (January 15, 2013).1

Pursuant to section 110(a)(1), states must submit “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” a plan that provides for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions and the requirements to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address. EPA commonly refers to such state plans as “infrastructure SIPs.”

On August 18, 2016, the State of Maryland, through the Maryland Department of the Environment (MDE), formally submitted a SIP revision (SIP #16-12) in order to satisfy the requirements of section 110(a) of the CAA for the 2012 PM2.5 NAAQS. The SIP submittal addressed the following infrastructure elements for the 2012 PM2.5 NAAQS: CAA section 110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M).

Maryland's infrastructure SIP submittal did not address the following two elements of CAA section 110(a)(2): The portion of section 110(a)(2)(C) pertaining to permit programs, known as nonattainment new source review (NNSR), under part D of the CAA, and section 110(a)(2)(I), referred to as “element (I),” pertaining to the nonattainment requirements of part D, title I of the CAA. According to the EPA guidance issued on September 13, 2013 (2013 Infrastructure Guidance),2 the NNSR permitting program requirement of section 110(a)(2)(C) is to be addressed in a different SIP, and therefore does not need to be addressed in this SIP revision. Section 110(a)(2)(I) is not required to be submitted by the 3-year submission deadline of CAA section 110(a)(1) and will be addressed in a separate process if necessary.

On July 5, 2018 (83 FR 31352), EPA published a notice of proposed rulemaking (NPR) for Maryland. In the NPR, EPA proposed approval of Maryland's August 18, 2016 infrastructure SIP submittal for the 2012 PM2.5 NAAQS. A detailed summary of EPA's review and rationale for approving Maryland's submittal may be found in the Technical Support Document (TSD) for this rulemaking action, which is available online at www.regulations.gov, Docket ID Number EPA-R03-OAR-2017-0441.

EPA received a total of three comments on the July 5, 2018 NPR. Two of the comments did not concern any of the specific issues raised in the NPR, nor did they address EPA's rationale for the proposed approval of MDE's submittal. Therefore, EPA is not responding to those comments. EPA also received a comment that was supportive of EPA's proposed approval of Maryland's August 18, 2016 infrastructure SIP submittal for the 2012 PM2.5 NAAQS. All of the comments received are included in the docket for this action, available online at www.regulations.gov, Docket ID: EPA-R03-OAR-2017-0441.

EPA's review of Maryland's August 18, 2016 infrastructure SIP submittal for the 2012 PM2.5 NAAQS indicates that MDE's August 18, 2016 submittal satisfies the infrastructure requirements of CAA section 110(a) for the 2012 PM2.5 NAAQS.3 EPA is approving Maryland's August 18, 2016 infrastructure SIP submittal for the 2012 PM2.5 NAAQS as a revision to the Maryland SIP.

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 30, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving Maryland's August 18, 2016 infrastructure SIP submittal for the 2012 PM2.5 NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

The State of Michigan's minor source PTI rules are contained in Part 2 of the Michigan Administrative Code. EPA last approved changes to the Part 2 rules in 1982. The Michigan Department of Environmental Quality (MDEQ) has submitted several Part 2 revision packages since that time; however, EPA has not taken a final action on any of the submittals. The following table provides a summary of the various state submittals with the most recent version of each section of the Michigan Rule highlighted in bold.

EPA published a proposed approval of all changes, except the public notice procedures in Michigan R. 336.1205, on August 15, 2017 (82 FR 38651), with a 30-day public comment period. EPA reopened the comment period twice due to missing files in the docket on regulations.gov. The comment period was reopened for an additional 30 days on November 2, 2017 (82 FR 50853), and an additional 15 days on January 9, 2018 (83 FR 1003). EPA is taking no action on Michigan R. 336.1205 at this time.

Section 110(a)(2)(C) of Clean Air Act (the Act) requires that each SIP include a program to provide for the regulation of construction and modification of stationary sources as necessary to assure that the National Ambient Air Quality Standards (NAAQS) are achieved. Specific elements for an approvable construction permitting plan are found in the implementing regulations at 40 CFR part 51, subpart I—Review of New Sources and Modifications. Requirements relevant to minor construction programs are 40 CFR 51.160-51.164. EPA regulations have few specific criteria for state minor new source review (NSR) programs. Generally, state programs must set forth legally enforceable procedures that allow the state to prevent any planned construction activity that would result in a violation of the state's SIP or a national standard.

The revisions to Part 2 submitted by MDEQ are largely provisions that strengthen the already approved minor NSR program adding greater detail with respect to applicability, required application material, and processing of applications; however, the revisions do include changes to waiver provisions and the addition of several categories of exemptions from the requirement to obtain a PTI.

EPA received several comments during the public comment process. EPA received four anonymous comments that were unrelated to the action, and we will not be addressing those comments. EPA received adverse comment on the proposed approval from the Sierra Club, the Great Lakes Environmental Law Center, the Center for Biological Diversity, and the Environmental Law & Policy Center. EPA received a letter from the Environmental Law & Policy Center dated September 14, 2017, and a letter from the Sierra Club, Great Lakes Environmental Law Center, and the Center for Biological Diversity dated September 14, 2017, during the original public comment period. Sierra Club and the Great Lakes Environmental Law Center provided additional comment during the first reopening in a letter dated December 4, 2017. Sierra Club, the Great Lakes Environmental Law Center, and the Center for Biological Diversity provided additional comments during the second reopening in a letter dated January 24, 2018. A summary of the comments received and EPA's response follow.

Michigan R. 336.1201a gives the MDEQ the ability to create general PTIs. A general permit is a permit document that contains standardized requirements that multiple stationary sources can use. It may cover categories of emission units or stationary sources that are similar in nature. The purpose of a general permit is to ensure the protection of air quality while simplifying the permit process for similar minor sources. General permits allow the permitting authority to notify the public through one notice that it intends to apply those requirements to any eligible source that seeks coverage under the permit in the future. This minimizes the burden on the reviewing authority's resources by eliminating the need to issue separate permits for each individual minor source within the source type or category covered by the general permit. Use of a general permit also decreases the time required for an individual minor source to obtain a preconstruction permit because the application process is standardized.

Michigan R. 336.1201a allows MDEQ to issue general PTIs for categories of similar emission units or stationary sources. The rule requires the general permits to contain limitations as necessary to assure compliance with applicable requirements, and that limitations on potential to emit be enforceable as a practical matter. The general permits must also identify the criteria by which a stationary source or emission unit may qualify for the permit. Finally, the rule requires MDEQ to provide for public notice of the general permit.

Comment 1: While EPA's Title V permitting rules provide for issuance of general operating permits, the concept of a general construction permit is not consistent with the requirements of Section 110(a)(2)(C) of the Act or 40 CFR 51.160-51.164.

EPA Response: EPA disagrees that the lack of a specific allowance for general permits under the permit program requirements of section 110(a)(2)(C) of the Act precludes the use of general permits for construction as there is no provision that specifically disallows them. In fact, the language in the Act concerning non-major activities simply requires “regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved.” The Act and the implementing regulations at 40 CFR 51.160 are structured to allow the implementing authority flexibility in designing a minor source program that meets the authority's individual needs while assuring protection of ambient air. EPA has a well-established, longstanding position that the use of general permits for construction of minor sources is appropriate under the Act. The January 25, 1995, memorandum “Options for Limiting Potential to Emit (PTE) of a Stationary Source Under Section 112 and Title V of the Clean Air Act,” the January 25, 1995 memorandum, “Guidance an Enforceability Requirements for Limiting Potential to Emit through SIP and § 112 Rules,” and the April 14, 1998, memorandum, “Potential to Emit (PTE) Guidance for Specific Source Categories,” all endorse the use of a general permit program approved into the SIP pursuant to section 110(a)(2)(C) of the Act as a means of effectively establishing limitations on the potential to emit of stationary sources. EPA allows for the issuance of general permits to minor sources under its own Federal Minor NSR Program in Indian Country at 40 CFR 49.156.

Comment 2: The Michigan Rules do not define “similar stationary sources or emissions units.” There is no requirement in the rules that, to be similar, source or emission units must have similar emissions and stack parameters. Sources with different stack parameters and emission rates, even though similar sources, could have significantly different impact on air pollutant concentrations. Furthermore, no definition of “similar source” can adequately address neighboring sources of air pollution which may cause ambient pollution concentrations at or near the levels of a NAAQS.

EPA Response: We disagree that there is a need to define “similar stationary sources or emissions units” in this rule. The identified terms have their common meaning in the context of the rule. In the case of general permits, defining the scope of the stationary source and/or emissions units covered by a particular general permit should be done when establishing the terms of the general permit. All interested parties will have the opportunity to provide input on the appropriateness of the scope of a particular general permit during the public comment period for that permit. The appropriate time to comment is during the public comment period for a particular general permit.

Comment 3: A general permit would not ensure that a specific new or modified source would be prohibited from construction if it would interfere with attainment or maintenance of the NAAQS or interfere with the control strategy. The impact of a source's emissions on air pollutant concentrations is dependent on a myriad of factors including topography, other buildings in the vicinity, background pollutant concentrations, and neighboring sources of pollution as well as stack and plume characteristics.

EPA Response: We disagree. Michigan R. 336.1207, which requires MDEQ to deny an application that would interfere with the attainment or maintenance of a NAAQS, would apply to any general permit issued by MDEQ. There is still an application process for any source wanting coverage under a general permit, and MDEQ does have the authority to deny coverage under a general permit to any applicant. The potential air quality impacts of a general permit should be considered during the development of each general permit. Concerns regarding the adequacy of permit terms or application requirements concerning potential impacts on air quality are more appropriately raised during the public comment period for each general permit developed by MDEQ.

Comment 4: The concept of a general construction (or operating) permit is that one permit can be issued for a source type, and similar sources can request and be granted approval to construct and/or operate under that permit without having to apply for a new construction permit, thereby avoiding all of the requirements that are part of the application process including public notice and opportunity for comment.

EPA Response: A source must apply for coverage under a general permit, and each general permit must be made available for public comment. EPA does not agree that the general permitting process would allow a source to avoid any requirements of the application process. As noted above, EPA has a well-established position in support of general permits for construction and has determined that the notice and comment required in the establishment of each general permit meets the public notice requirements of 40 CFR 51.161.

Michigan R. 336.1202 provides the MDEQ with the authority to grant a waiver from the requirement to obtain a permit prior to commencing construction in certain limited circumstances. The PSD provisions of the Act prohibit commencement of construction without first obtaining the required permit authorizing construction; however, the requirement only applies to major sources, and no such restriction is specified under the minor NSR program requirements set forth in 40 CFR 51.160. In addition, EPA has made determinations which further support that limited construction may begin before a permit is issued for minor sources. For example, EPA's October 10, 1978, memorandum from Edward E. Reich to Thomas W. Devine in Region 1 discusses limited preconstruction activities allowed at a site with both PSD and non-PSD sources. This memo states that construction may begin on PSD-exempt projects before the permit is issued. EPA has established its position that limited waivers are acceptable for true minor sources in previous rulemaking. (See 68 FR 2217 and 73 FR 12893.) As stated previously, the minor NSR provisions at 40 CFR 51.160 require state programs to determine if activities would violate an applicable SIP or national standard and to prevent construction of an activity that would violate an applicable SIP provision or national standard. Michigan R 336.1202(1) requires an application for a waiver be submitted to MDEQ and requires MDEQ to act on the request within 30 days. Construction may not proceed unless the waiver is granted. The rule also indicates that the waiver does not guarantee approval of the required PTI and any construction activity would be at the owner/operator's risk. Michigan R. 336.1202(2) limits the waiver to minor construction activities (i.e., activities not subject to prevention of significant deterioration or nonattainment new source review requirements), activities that are not considered construction or reconstruction under a National Emission Standard for Hazardous Air Pollutants of 40 CFR part 63, and activities that are not considered construction or modification under a New Source Performance Standard of 40 CFR part 61. It is also important to note that the approved Part 2 rules currently included in the Michigan SIP already have an approved waiver provision. The currently approved waiver provision is much broader in scope, and the changes that EPA is approving here narrow that scope bringing the MDEQ provisions in line with other state programs.

Comment 1: The commenters object to EPA's approval of waiver provisions in general and argue that all of EPA's arguments for approval of waiver provisions are flawed and do not in any way justify approval.

EPA Response: EPA has outlined its position on waivers for minor source construction in previous rulemakings, as noted above, and will not be revisiting this established policy in this rulemaking. EPA finds that Michigan R. 336.1202 meets the criteria for approval outlined in those rulemakings. Michigan's rule requires application for a waiver and requires MDEQ to act upon the application for a waiver within 30 days. The waiver provision is limited to non-major construction activities and the applicant must show a delay in construction would result in hardship. Finally, the rule makes it clear that the source may not operate until such time a final permit is issued and that granting a waiver does not obligate MDEQ to issue a final permit.

Comment 2: Michigan R. 336.1202 conflicts with EPA regulations governing minor source review because it would allow a source to circumvent the public participation requirements until after a source or modification is constructed.

EPA Response: EPA's position on limited waiver provisions in minor NSR programs has already been established. As discussed above nothing in 40 CFR 51.161 requires that the required public notice occur prior to the commencement of construction activities for minor sources. MDEQ must still adhere to the SIP approved public notice requirements when issuing a permit.

Comment 3: The Michigan waiver provision conflicts with EPA's regulations governing major source review because it could apply to modified major sources that would otherwise be subject to PSD or nonattainment NSR. Although the Michigan waiver provision states that it does not apply to “any activity” that is subject to major source permitting requirements, the definition of “activity” under this rule is not consistent with the EPA's aggregation policy. By defining “activity” as the “concurrent and related installation, construction, relocation, or modification of any process or process equipment,” MDEQ's definition is inconsistent with the much broader policy that EPA has laid out in several policy memos in deciding when projects should be aggregated. Importantly, EPA policy does not require that projects be concurrently constructed to justify two or more projects being related. There are also numerous other factors to take into account to determine if two or more projects are related.

EPA Response: Neither the Act nor current EPA rules specifically addresses the basis upon which to aggregate changes for applicability purposes. Instead, EPA has developed its aggregation policy through statutory and regulatory interpretation and applicability determinations. Current EPA policy is generally guided by our analysis in memos such as the June 17, 1993 “Applicability of New Source Review Circumvention Guidance to 3M-Maplewood, Minnesota.” In this memo, EPA outlines criteria that a permitting authority might consider in determining which activities should be aggregated. The guidance suggests that a permitting authority should consider the timing of projects, whether or not changes are technically related or dependent upon one another, and any economic relationship between activities. EPA policy directs permitting authorities to evaluate the timing and relatedness of activities for aggregation. Since MDEQ has not defined either “concurrent” or “related”, we believe the language can be interpreted broadly enough to be consistent with EPA policy. Furthermore, the definition of activity here has no bearing on the definition of project under the state's PSD and major non-attainment NSR program. Applicability for PSD is defined in Michigan's Part 18 rules and applicability for major non-attainment NSR is defined in Michigan's Part 19 rules, and is independent of any applicability criteria established in Part 2. If an activity is subject to the Part 18 or Part 19 requirements either by itself or as part of a larger project, it would be excluded from use of the waiver provisions.

Comment 4: The waiver provision also conflicts with EPA regulations governing new major source review because it could apply to a source that ultimately requests limits on emissions to avoid major source or major modification permitting requirements.

EPA Response: EPA disagrees with the commenter's conclusions. The rule prohibits use of the waiver by sources subject to the state's major construction permitting programs. Any source that intends to take synthetic minor restrictions to avoid major source permitting requirements is major until a permit with enforceable restrictions is issued, and would be disqualified from the use of the waiver. MDEQ has made their position on this issue clear as well. In a public hearing report dated February 20, 2003, which is included in attachment F of the September 2003 submittal, MDEQ outlines how their rules would prevent the use of restrictions that are not part of an enforceable permit or order, thus limiting the waiver to true minors.

Comment 5: The Michigan waiver provision does not meet the requirements of the Act or 40 CFR 51.160(a) because it does not require the source to submit its plans and specifications for approval before MDEQ must act on a request for a waiver. Michigan R. 336.1202 indicates that a source's “pertinent plans and specifications” can be submitted after a waiver is granted and such plans are only required “as soon as is reasonably practical.” Furthermore, MDEQ's rule is not comparable to previously approved waiver provisions in Idaho and Wisconsin because both programs require a complete application for construction with an application for a waiver.

EPA Response: While the approvals in Idaho and Wisconsin note the submittal of a complete application for construction as additional safeguards, EPA disagrees that the submittal of a complete application for construction was established as a criterion for approval. Michigan R. 336.1202 does require application to MDEQ for a waiver. EPA does not agree that a complete application for construction is necessary, and the commenter has not provided evidence that MDEQ does not require adequate information with the waiver application. A check of MDEQ policy does in fact show that a complete application is required with an application for a waiver. Section 9-2 of MDEQ's “Permit to Install Workbook” states that a PTI application must be submitted “before, or with, a construction waiver request.”

Comment 6: Michigan R. 336.1202 conflicts with the Act and EPA regulations governing minor source review because it essentially amounts to a director's discretion provision to provide new exemptions from the substantive requirements of the permit to install requirements. That is because the source does not have to submit relevant information about the new or modified source to determine if it would interfere with the control strategy or cause or contribute to a NAAQS violation until after construction has begun, the new or modified source's proposed location and impact on air quality would not have to be disclosed to the public until after construction has begun, and if the source was planning on requesting enforceable emission limitations to avoid major source permitting requirements, no review by the MDEQ, the public, or EPA would be done until after construction has begun.

EPA Response: As discussed above, a complete application for a PTI is required with an application for a waiver. Because any source seeking synthetic minor or netting limitations is considered major until such time as a permit with practically enforceable limitations is issued, the rule would only allow a waiver for true minor actions. Finally, the rule prohibits operation until a final permit is issued, and that permit must meet the public notice procedures of the approved SIP.

Michigan R. 336.1209 allows a source to rely on a permit to install or a permit to operate issued by MDEQ before May 6, 1980 (prior to approval in the SIP), or issued by Wayne county before a delegation of authority to Wayne county pursuant to state statute for the purposes of applicability to Michigan R. 336.1210. Michigan R. 336.1210 is the state's Title V operating permit program.

Comment 1: This rule could allow a source to avoid the state's Title V requirements by relying on emission limits in permits that the state or Wayne County no longer have the ability to enforce due to the permit being based on rules that are extremely out of date or no longer on the books.

EPA Response: Changes to rules do not invalidate permits already issued. If the permits issued were non-expiring, they are still legally binding regardless of changes to the state's permitting rules. EPA sees this provision as reaffirming the state's authority to enforce these permits.

Comment 2: The provisions of Michigan Rule 336.1209 that allow sources to rely on pre-1980 permits and permit limits may result in permits that are inconsistent with EPA's criteria for “practically enforceable” limits. Those criteria include the requirement that the permit expressing the emission limits must identify the methods for determining compliance with the limit and require monitoring, recordkeeping and reporting. The commenter notes that neither Michigan R. 336.1209 or Michigan R. 336.1205(1)(a) specifically require that the permit to be used to avoid Title V requirements include these compliance assurance requirements.

EPA Response: Michigan R. 336.1209 requires that the permit contain production and/or operational limits consistent with the requirements of Michigan R. 336.1205(1)(a). Michigan R. 336.1205(1)(a) requires that limits be enforceable as a practical matter. While Michigan R. 336.1205(1)(a) does provide some detail regarding the types of limits that could be used and the timeframes for the limits, EPA does not see the language in this rule as defining “enforceable as a practical matter” and sees nothing in the language that would be inconsistent with EPA policy on what makes a limit enforceable as a practical matter. Furthermore, the commenter has not described how avoiding an operating permit requirement would impact the state's preconstruction permitting program.

Comment 3: EPA has established certain criteria that need to be met in order to establish enforceable limits on potential to emit, which include among other things EPA and public notice and the opportunity to comment on a potential to emit limit. (See 1/25/95 EPA Memo with Subject “Options for Limiting Potential to Emit (PTE) of a Stationary Source Under Section 112 and Title V of the Clean Air Act (Act)” at 3-4.)

EPA Response: The reference cited by the commenters is a discussion regarding the criteria for SIP approval of a federally enforceable state operating permit program (FESOP). As noted in the referenced memo, a criterion for approval of a FESOP program is that permits “be issued in a process that provides for review and an opportunity for comment by the public and by EPA.” Michigan R. 336.1209 is not a FESOP program, and the criteria for FESOP approval is not an appropriate measure for this rule.

Comment 4: To a large extent, EPA's criteria for creating practically enforceable emission limits to avoid major source permitting was developed pursuant to the 1987 Court decision United States v. Louisiana Pacific, 682 F. Supp. 112(D. Colo. 1987), 682 F. Supp. 1141 (D. Colo. 1988). By allowing Michigan sources to rely on permits issued well before this Court decision and before May 6, 1980, it seems highly doubtful that the Michigan or Wayne County permits upon which a source might rely to avoid Title V permitting meet EPA's more recent criteria for creating practically enforceable limits on potential to emit. Until it is clear that EPA has undertaken a review of these older programs and verified as such, as well as verified that the state or Wayne County still has authority to enforce such permits, EPA must not approve Michigan R. 336.1209 as part of the Michigan SIP.

EPA Response: The commenter seems to suggest that any limit predating the United States v. Louisiana Pacific decision and EPA's subsequent guidance could not be enforceable as a practical matter. Minor permit programs had been a part of state SIPs for nearly a decade before the decision and EPA's subsequent guidance. The fact that the EPA and the court found the Louisiana Pacific permit deficient is not evidence that all prior permits were somehow deficient. The rule requires that the old permit contain limits that are enforceable as a practical matter and that the permittee continue to maintain records, conduct monitoring, and submit reports to show that the source is in compliance with those terms.

Michigan R. 336.1278 and 336.1278a work together to define the scope of the permit exemptions in Michigan R. 336.1280 through 336.1290 and to ensure that sources choosing to forgo a case-by-case permitting decision collect and maintain data necessary to demonstrate that any construction related activities qualified for the exemptions. Michigan R. 336.1278 excludes major activities subject to either the PSD or major non-attainment programs from using the exemptions. This rule also affirms that the exemptions only apply to the requirement to obtain a construction permit and that all other applicable requirements including existing permit limitations must be met. Michigan R. 336.1278a requires sources using an exemption to maintain records that demonstrate the applicability of the exemption including information such as a description of equipment installed, date of installation, identification of the specific exemption being applied and an analysis that the exemption exclusions in Michigan R. 336.1278 do not apply.

Comment 1: Michigan's PTI regulations are an umbrella permit program that apply to new major sources and major modifications as well as minor sources and modifications. Many of the PTI exemptions, particularly the broadly-worded exemptions in Michigan R. 336.1285, could allow otherwise major modifications to escape review, despite the limitations in Michigan R. 336.1278 and 336.1278a. Thus, EPA is not justified in relying on Michigan R. 336.1278 and R. 336.1278a for assurance that all of the PTI exemptions in Michigan R. 336.1280 through Michigan R. 336.1290 will not allow a project to escape major source permitting.

EPA Response: EPA agrees with the commenter that the provisions in Part 2 apply to both minor sources and major modifications. EPA disagrees that the PTI regulations exemption would allow major modifications to escape review. The commenter is correct to a certain extent that the provisions in Part 2 apply to both major and minor construction activities. For example, the Part 2 rules do address the general requirement to obtain a permit, public notice procedures, and grounds for permit denial of all construction permit programs. However, the Part 2 rules do not define the applicability criteria for the state's PSD and major non-attainment NSR programs. The state's PSD rules in Part 18 and major non-attainment NSR rules in Part 19 define the specific requirements, including applicability, of those major source construction permitting programs. Michigan R. 336.1278 prohibits the use of the exemptions if the activity would be subject to PSD or major non-attainment permitting requirements. The applicability procedures in Part 18 and Part 19 are independently applicable, and nothing in Part 2 of the Michigan Rules would alter them; therefore, EPA finds that the exclusion in Michigan R. 336.1278 is adequate.

Comment 2: The specific provisions of Michigan R. 336.1278 fail to ensure that projects that should be required to obtain a PSD or major non-attainment permit will not be exempt from a PTI pursuant to the exemptions in Michigan R. 336.1280 through R. 336.1290 because Michigan R. 336.1278(1) does not use the same terms that are used in the PSD or non-attainment NSR regulations for identifying what changes may trigger NSR review. Specifically, the PSD and nonattainment NSR rules use the term “project” which is defined as “a physical change or change in the method of operation of an existing major stationary source” and Michigan R. 336.1278 uses the term “activity.” Michigan R. 336.1278(1)(b) defines “activity” as “the concurrent and related installation, construction, reconstruction, relocation, or modification of any process or process equipment.” It does not appear that this definition encompasses changes in the method of operation of any process or process equipment. The commenter also asserts that the definition of “activity” is inconsistent with EPA's aggregation policy because EPA policy does not require that changes be concurrent.

EPA Response: The MDEQ definition of “activity” includes “modification of any process or process equipment.” MDEQ defines “modify” in Michigan R. 336.1113(e). The definition of “modify” includes physical changes in, or changes in the method of operation of an existing process or process equipment. MDEQ has not excluded changes in the method of operation as suggested by the commenter. The commenter made a similar comment with respect to aggregation in their comments on the waiver provision at Michigan R. 336.1202. See EPA's response to Comment 3 in Section II.B of this action.

Comment 3: While Michigan R. 336.1278a(1)(c) does require an analysis demonstrating that Michigan R. 336.1278 does not apply to the process or process equipment, the rule does not clearly require such analysis for modification to process equipment.

EPA Response: EPA disagrees with this comment. It is clear that the “exempt process or exempt process equipment” in Michigan R. 336.1278a is referencing the exempt activity as defined by each of the categories of exemptions in Michigan R. 336.1280 through 336.1290. If the exempt process or exempt process equipment as defined by a specific exemption would include modifications to existing equipment, the facility applying the exemption would be required to maintain an analysis that the exemption applies to the modification of equipment.

Comment 4: Michigan R. 336.1278a(1)(c) does not specify how the analysis that Michigan R. 336.1278 does not apply should be done. Given that the language and terms of Michigan R. 336.1278(1) are not consistent with the terms and applicability procedures of the major NSR rules, it is imperative that the recordkeeping rule at Michigan R. 336.1278a(1)(c) specify the applicability procedures in the major PSD and non-attainment NSR rules. Given the complex procedures, how they differ for new emissions units versus existing emissions units, and the fact that Michigan R. 336.1278(1) uses different terminology than the major source permitting rules, this is a major omission.

EPA Response: As explained previously, nothing in the Part 2 rules impacts applicability under the state's major source permitting rules in Part 18 and Part 19. EPA believes that the expectation of Michigan R. 336.1278a(1)(c) is clear in that it requires a source applying any of the exemptions to maintain an analysis and records that support that (1) the project was not major pursuant to the requirements of the approved Part 18 or Part 19 programs, and (2) that the process or process equipment in question, meets the applicability criteria of whichever specific exemption they are claiming as defined by that exemption. Michigan very clearly states this in their May 15, 2012, letter from Dan Wyant to Susan Hedman. In its explanation of how these rules work to limit the scope of the exemptions, MDEQ states “A source must, therefore, first determine if it is excluded from exemption under Rule 278 before evaluating whether it is eligible for one of the specific exemptions in Rules 280 through 290.” In other words, major source permitting applicability must be determined before consideration of the Part 2 exemptions.

Comment 5: Michigan R. 336.1278a does not clearly require an analysis demonstrating that the specific exemption being used applies to the activity. Michigan R. 336.1278a must require an analysis demonstrating the applicability of an exemption, not just a description of the exempt process and an identification of the exemption being applied as suggested by Michigan R. 336.1278a(1)(a) and (b).

EPA Response: Michigan R. 336.1278a(1) states “To be eligible for a specific exemption listed in R 336.1280 to R 336.1291, any owner or operator of an exempt process or exempt process equipment must be able to provide information demonstrating the applicability of the exemption.” The language in Michigan R. 336.1278a(1)(a) and (b) are examples of what that information might be and not an all-inclusive list of required information. EPA believes that the intent of the rule is clear in that a source opting to use an exemption must keep any data required to demonstrate applicability of an exemption. The specifics of the necessary data are determined by each exempt category. If the exemption is based on size or capacity of a unit, the source must keep data on the size of the emission unit. If the exemption is based on the type of activity and associated emissions, the source would need to maintain records describing the exact nature of the change and an analysis of the resulting change in emissions. EPA does not agree that further clarification in Michigan R. 336.1278a is necessary.

Comment 6: The recordkeeping requirements of Michigan R. 336.1278a are not sufficient to ensure that activities will not escape major NSR permitting and are not adequate to ensure lawful implementation of all the permit exemptions. The rule does not clearly require the preparation of a demonstration at the time of the exemption. The rule does not clearly require that any demonstration be prepared and retained, instead it appears that it could be prepared once MDEQ requests it. Finally, the commenter objects to the rule only requiring submittal of records upon request by MDEQ arguing that the state will not be able to ensure proper implementation without upfront approval of the use of the exemptions by the state.

EPA Response: The fact that the Michigan R. 336.1278a(2) has set a deadline for responding to a written request by the state does not equate to a requirement for no records until such time as the state asks. The first requirement of every exemption is “This rule does not apply if prohibited by R 336.1278 and unless the requirements of R 336.1278a have been met.” Because Michigan R. 336.1278a(1) requires that “to be eligible” for an exemption, the owner/operator of a source must be able to provide the information in Michigan R. 336.1278a(1) and each individual exemption requires that those rules have been met, the clear intent is that the information demonstrating the applicability of the exemption be developed before the change and records kept immediately upon implementation. Finally, the commenter seems to suggest that only a requirement for upfront permitting authority approval is enforceable. 40 CFR 51.160(e) requires the state's procedures to “identify types and sizes of facilities, buildings, structures, or installations which will be subject to review.” The application requirements of 40 CFR 51.160(c) only apply to those activities subject to review. If the state had established blanket tonnage thresholds, we would not expect that projects under those thresholds would require a notice to the permitting authority and that the permitting authority would affirm that those projects are below the threshold. MDEQ has defined the types and sizes of facilities subject to review—any construction activity not listed in the categories of exemptions. Nothing in the Act or 40 CFR 51.160 would require notice or application from a source not subject to review. With respect to enforceability, like tonnage thresholds, the exemptions are enforced through periodic inspection of facilities.

Michigan R. 336.1280-R. 336.1290 define the specific categories of exemptions.

Comment 1: In the November 9, 1999, proposed disapproval, EPA stated the state “must demonstrate why these sources need not be subject to review in accordance with Alabama Power de minimis or administrative necessity criteria.” EPA indicated such a demonstration would likely include “(1) an analysis of the types and quantities of emissions from exempted sources, and (2) an analysis which shows that exempting such facilities from permitting review will not interfere with maintenance of the NAAQS or applicable control strategy, and otherwise fulfills the purposes of the minor NSR regulations.” With respect to assuring that this SIP relaxation won't interfere with attainment or maintenance of the NAAQS or otherwise fulfill the requirements for minor new source review, EPA is relying on MDEQ's submittals from 2003 and 2017 to show that the SIP revision won't interfere with attainment or maintenance of the NAAQS. In those submittals, MDEQ provided example emission estimates for a select set of exemptions but not for all of the exemptions in Michigan R. 336.1280-336.1290.

EPA Response: In our review of the 2003 and 2017 submittals, EPA did not find any new exemption that was not sufficiently addressed by MDEQ to demonstrate non-interference. The commenters have not provided any specific examples. We think it is also important to note that in 1999 EPA did not conclude that any of the new exemptions were in fact a relaxation of the existing SIP in the proposed disapproval. EPA's finding was that MDEQ had failed to provide the required analysis addressing the effect of the changes on the current SIP.

Comment 2: MDEQ did not document the basis for its emission factors used for its emission estimates, and it is not clear that MDEQ has used realistic worst case emission factors.

EPA Response: The commenters did not provide any specific examples of undocumented emission factors. In our review of the emission estimates provided, MDEQ has used emission factors from AP-42 or other EPA documents, manufacturer's data, stack testing, information from past state permitting actions, data from the Michigan Air Emission Reporting System, mass balance, or some combination of these sources to estimate emissions. The data used is clearly documented by MDEQ for each estimate. There are a few exemptions that do not result in emissions of any criteria pollutant or any pollutant at all. In those circumstances, MDEQ has provided an explanation of why those processes would not result in emissions of a pollutant regulated under section 110 of the Act. For example, Michigan R. 336.1285(2)(ii) exempts “fuel cells that use phosphoric acid, molten carbonate, proton exchange membrane, or solid oxide or equivalent technologies.” In their analysis, MDEQ does not provide an emission calculation, but provides an explanation for why no emissions of criteria pollutants are expected from this technology. EPA finds that MDEQ has used appropriate sources for emission factors and that the commenters have provided no evidence supporting their claims.

Comment 3: EPA's proposed approval of these exemptions fail to fulfill the purpose of the minor NSR regulations. The December 31, 2002, major source permitting rule revisions significantly revised and limited applicability to major source permitting for modifications at major sources. In justifying that rulemaking, EPA cited to state's minor NSR rules as providing the needed oversight of modifications at existing major source in the cases where modifications at major sources could more readily be considered minor modifications. For example, EPA stated in the preamble to the 2002 rules that it anticipated a “large majority of the projects that are not major modifications may nonetheless be required to undergo a permit action through States' minor NSR permit programs” and stated that such programs could provide an opportunity to ensure that the permitting authority agrees with a source's emission projections.

EPA Response: EPA disagrees that the MDEQ minor NSR permitting program will not address “a large majority of the projects that are not major modifications.” In the 2002 rulemaking, EPA did not state that every change that was no longer subject to the major source permitting requirements due to NSR Reform would be picked up by the state minor NSR programs, and statements in the preamble to NSR Reform are not evidence that the Michigan minor NSR program is not part of a program serving the intended purpose of section 110(a)(2)(C) of the Act to prevent construction that would interfere with attainment and maintenance of the NAAQS. MDEQ has been implementing these exemptions for over a decade and EPA is not aware of a NAAQS violation resulting from their use and the commenters have not presented any specific evidence that they could result in a violation.

Michigan R. 336.1285(2)(a) exempts “routine maintenance, parts replacement, or other repairs that are considered by the department to be minor, or relocation of process equipment within the same geographical site not involving any appreciable change in the quality, nature, quantity, or impact of the emission of an air contaminant therefrom.” The rule also includes examples of changes that would be covered by the exemption. These examples help to define the scope of changes MDEQ intended the exemption to cover. EPA specifically noted concerns with this exemption in a November 9, 1999, proposed disapproval. This exemption is part of the approved SIP. Michigan had made some fairly minor changes such as changing the word “commission” to “Department.” The only substantive change was the addition of the word “routine.” Because it might be interpreted as defining “routine maintenance, repair and replacement” under the major source permitting rules, EPA was concerned that the ambiguity might lead to sources inappropriately applying the exemption to major source permitting. There have been significant changes to the structure of MDEQ's major source permitting rules since 1999. At that time, PSD permits were issued pursuant to a delegation of 40 CFR 52.21 through the general requirements of the Part 2 rules. The state's major non-attainment permitting rules were also included in Part 2 at that time. MDEQ now has a SIP approved PSD program, and the major source permitting requirements have been moved to separate sections of the Michigan Administrative Code. The PSD rules are in Part 18 and the major NSR rules are in Part 19. EPA believes the previously listed concerns are effectively addressed by the requirements of Michigan R. 336.1278 and 336.1278a in conjunction with the move of major source applicability criteria to separate rule sections.

Comment 1: The terms “minor” and “appreciable” are vague, undefined terms that are subject to varying interpretations. Given that the facilities will be making the determinations of whether an activity can be exempt under Michigan R. 336.1285(2)(a) and not MDEQ, the likelihood of wide and varying interpretations of this provision are great, and thus the limitations of this exemption are unenforceable. The minor NSR provisions for SIPs at 40 CFR 51.160(a) and (e) require the state to clearly define the sizes and types of sources subject to review and to do so through legally enforceable procedures, and MDEQ has not done so.

EPA Response: EPA disagrees that the cited terms make the limitations unenforceable. We believe that the terms, in context, have their common meanings, and that MDEQ has satisfactorily described the intent of these rules. For example, the state's interpretation of “appreciable” as stated in their May 15, 2012, letter is the common definition of the word, “capable of being perceived or measured.” A change in emissions that is capable of being measured is actually a fairly restrictive limitation. EPA also believes that the state has developed adequate policy for their permitting program and exemptions to minimize the likelihood of misuse. More importantly, on page 11 of the document “Response to the United States Environmental Protection Agency's May 12, 2014, Need for Additional 110(l) Analysis,” included in the 2017 submittal, MDEQ has clearly indicated that this exemption “is in no way intended to define routine maintenance, repair and replacement,” and confirm their adherence to current EPA policy on the matter.

Comment 2: The fact that this rule allows “relocation of process equipment within the same geographical site is extremely problematic, as any relocation of a source of air emission can change that source's impact on air quality and can negate any prior air quality analyses that have been done for the source.

EPA Response: This is language that has already been approved into the Michigan SIP, and is not open for comment through this action.

Comment 3: This rule could be considered to redefine “routine maintenance, repair, and replacement” under the major source PSD and nonattainment NSR rules. This was a concern raised by EPA, to which MDEQ responded to in part that its “Part 2 exemptions are designed for use by small emitting sources.” However, nothing in the PTI rules or exemptions limit those permit requirements to “small emitting sources.” Indeed, the PTI program encompasses PSD and nonattainment NSR requirements and activities at existing major source subject to PTI requirements.

EPA Response: As stated previously, EPA believes the additional restrictions included in Michigan R. 336.1278 and R. 336.1278a have adequately addressed these concerns. MDEQ clearly requires that a source first determine that a change is not subject to major source permitting requirements prior to implementing any of the listed exemptions. Furthermore, MDEQ has confirmed their adherence to current EPA guidance on routine maintenance, repair and replacement in the 2017 submittal as described above.

Comment 4: While Michigan R. 336.1285(2)(a) gives examples of the types of parts replacement it considers to be “minor,” some of those examples could be construed as allowing component replacement that should not be considered routine. Specifically, Michigan provides examples that include replacement of fans, pumps, or motors “that do not alter the operation of the source,” replacement of boiler tubes, replacement of engines, compressor or turbines “as part of a normal maintenance program.”

EPA Response: See response to comment 3 above.

Michigan R. 336.1285(2)(b) exempts “changes in a process or process equipment which do not involve installing, constructing, or reconstructing an emission unit and which do not involve any meaningful change in the quality and nature or any meaningful increase in the quantity of the emission of an air contaminant therefrom.”

Comment 1: This rule has vague, undefined terms such as “any meaningful change,” “quality” or “nature” of emissions, and “any meaningful increase in the quantity of emissions.” It is unclear from the rule how changes are to be evaluated and the criteria upon which “meaningful” would be judged. This provision is clearly not enforceable and thus does not meet the minor NSR provisions of 40 CFR 51.160(a) and (e) to clearly define the sizes and types of sources subject to review and to do so through legally enforceable procedures.

EPA Response: EPA disagrees that the cited terms make the limitations unenforceable. We believe that the terms, in context, have their common meanings, and that that MDEQ has satisfactorily described the intent of these rules. In its May 15, 2012, letter, MDEQ states that “meaningful” would be defined as “having meaning or purpose.” In the context of a minor construction permitting program that would include a change that would result in an increase that could interfere with the NAAQS or increment. The rule also lists examples of changes that could be allowed by the rule such as a change in supplier of a particular raw material. While EPA agrees that there is some ambiguity in the term “meaningful,” the examples in the rule itself are adequate to appropriately narrow the scope of the exemption.

Comment 2: Many of the examples of the types of changes identified in the rule that might be allowable are concerning and could allow a modification that should be reviewed for major NSR applicability. The fact that the rule limits changes to those which do not involve installing, constructing, or reconstructing an emission unit is not sufficiently protective given that the exemption still allows modifying an emissions unit. While the provisions of the rule are vague and subject to interpretation, the examples given in the rule of the types of process changes that could be exempt from a PTI show that emission increases could occur without review. EPA itself recognized this when it requested MDEQ complete an analysis under Section 110(l) of the Act.

EPA Response: EPA's request for an analysis under section 110(l) of the Act was in no way an indication that EPA believed this exemption would allow major modifications to go unpermitted. States are obligated to provide an analysis under Section 110(l) for any changes to coverage under the approved SIP. As discussed previously in this action, EPA is satisfied that the changes that MDEQ has made to Michigan R. 336.1278 and 336.1278a, will prevent the use of the exemptions for actions that are subject to major construction permitting requirements. Major NSR and/or PSD applicability must be determined pursuant to Michigan Rules Part 18 and Part 19 before the exemptions in Part 2 can be applied.

Michigan R. 336.1285(2)(c) exempts the following changes from minor construction permitting:

“Changes in a process or process equipment that do not involve installing, constructing, or reconstructing an emission unit and that involve a meaningful change in the quality and nature or a meaningful increase in the quantity of the emission of an air contaminant resulting from any of the following:

(i) Changes in the supplier or supply of the same type of virgin fuel, such as coal, no. 2 fuel oil, no. 6 fuel oil, or natural gas.

(ii) Changes in the location, within the storage area, or configuration of a material storage pile or material handling equipment.

(iii) Changes in a process or process equipment to the extent that such changes do not alter the quality and nature, or increase the quantity, of the emission of the air contaminant beyond the level which has been described in and allowed by an approved permit to install, permit to operate, or order of the department.”

Comment 1: EPA apparently decided no increase in emissions would occur with this exemption; however, it is clear that actual emissions could increase with this exemption. Further, if there are no allowable emissions limits described for a pollutant or emissions unit in a permit or MDEQ order, then it appears even allowable emissions could increase under this exemption. Changes in types of coal burned can significantly increase emissions and therefore could actually impact the NAAQS.

EPA Response: EPA disagrees with the commenter. Michigan R. 336.1285(2)(c)(i) is limited to a change in supplier or supply of the same type of fuel. EPA would not expect state minor NSR programs create limits on the supplier of a raw material and the potential impact on emissions from a change in supplier is minimal. Nothing in this rule would allow a facility to change the type of fuel combusted as suggested by the commenter. Michigan R. 336.1285(2)(c)(ii) only allows moving storage piles or equipment within the existing storage area. A change in the location of equipment and storage piles should have no impact on the quantity of emissions; furthermore, when modelling impact on NAAQS from a storage area, total emissions from the storage area are modeled as an area source. Specific locations of piles or handling equipment are not modeled. Because the rule limits changes to the existing storage area, we would not expect an impact on the NAAQS with these types of changes either. Finally, Michigan R. 336.1285(2)(c)(iii) specifically excludes changes that would increase the quantity of emissions beyond that already allowed in a permit or order issued by MDEQ. Therefore, a change in the type of fuel combusted that results in an increase in emissions, as suggested by the commenter, would be excluded from the use of this exemption.

Comment 2: It must be pointed out that the exemptions in Michigan R. 336.1285(2)(c), being based essentially on a comparison of allowable-to-allowable emission increases, is based on an entirely inconsistent emissions increase approach than the major source permitting rules. The Courts have previously found that allowable-to-allowable emissions test are not authorized under major source permitting programs.

EPA Response: As previously discussed in this document, nothing in these rules impact applicability under major source permitting programs. MDEQ clearly requires that a source first determine that a change is not subject to major source permitting requirements prior to implementing any of the listed exemptions. With respect to requirements for applicability under minor NSR programs, the requirements of section 110(a)(2)(C) and 40 CFR 51.160 do not expressly require the use of any particular applicability test, and therefore do not prohibit the use of an allowable-to-allowable or actual-to-actual test.

Comment 3: Michigan R. 336.1285(2)(c)(ii) could readily allow a source to violate terms of an existing permit (including a major source PSD or non-attainment NSR permit) by allowing changes in the location or configuration of a material storage pile or material handling equipment. Any air modeling analysis that was done for such a source would have considered the location of material handling emissions in relation to publicly accessible land and roads. Given that fugitive emissions from material handling and/or storage piles have in many cases been modeled to cause or contribute to violations of the NAAQS or PSD increments for particulate matter (PM), particulate matter with an aerodynamic diameter less than or equal to 10 microns (PM10) and particulate matter with an aerodynamic diameter less than or equal to 2.5 microns (PM2.5), this cannot be considered as protective of the NAAQS.

EPA Response: Michigan R. 336.1278(4) states that the exemptions only apply to the requirement to obtain a PTI and “do not exempt any source from complying with any other applicable requirement or existing permit limitation.” Therefore, no exemption in Michigan R. 336.1280 through 336.1290 would allow a source to violate terms of an existing permit as suggested by the commenter. Furthermore, as discussed above, the exemption limits relocation of equipment and piles to within the existing storage area. Due to the way in which emissions from storage areas are addressed in a modeling analysis this would result in no impact on previous modeling.

Michigan R. 336.1285(2)(d) exempts the replacement or reconstruction of air pollution control equipment with equivalent or more efficient control equipment. Michigan R. 336.1285(2)(e) exempts the installation of control equipment required by a National Emission Standard for Hazardous Air Pollutants. Michigan R. 336.1285(2)(f) exempts the installation and construction of air pollution control equipment that does not result in a significant increase in a pollutant from the pollution controls.

Comment 1: EPA did not require a section 110(l) analysis for Michigan R. 336.1285(d); however, this provision could allow for the replacement of existing controls with controls that could create a new source of emissions. For example, if a scrubber is installed at a unit utilizing dry sorbent injection for sulfur dioxide (SO2) control, the scrubber would add sources such as lime delivery and storage for scrubber waste disposal. EPA should not have excluded this provision from the requirement for a section 110(l) analysis.

EPA Response: See EPA response to comments on the 110(l) analysis in Section II. F. below.

Comment: Michigan R. 336.1285(2)(g)-(mm) provide for 33 specific and diverse exemptions from the PTI requirements. There are certain activities that seem as if they could be significant sources of air emissions, especially because a company could claim multiple PTI exemptions from these activities.

EPA Response: As explained previously, EPA believes the limiting language in Michigan R. 336.1278 and 336.1278a is sufficient to ensure that projects subject to major construction permitting requirements are excluded from the use of the exemptions. EPA has also previously addressed the definition of activity in the rule and believes that the rule requires the appropriate aggregation of multiple small changes when making applicability decisions.

Comment: There are certain activities in Michigan R. 336.1280 through 336.1284 and Michigan R. 336.1286 through 336.1290 that seem as if they could be significant sources of air emissions, especially because a company could claim multiple PTI exemptions from these activities.

EPA Response: As explained previously, EPA believes the limiting language in Michigan R. 336.1278 and 336.1278a is sufficient to ensure that projects subject to major construction permitting requirements are excluded from the use of the exemptions. EPA has also previously addressed the definition of activity in the rule and believes that the rule requires the appropriate aggregation of multiple small changes when making applicability decisions.

EPA received several comments regarding the 110(l) analysis provided by MDEQ. Section 110(l) of the CAA states that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of this chapter.” 42 U.S.C. 7410(l). EPA does not interpret section 110(l) to require a full attainment or maintenance demonstration before any changes to a SIP may be approved. Generally, a SIP revision may be approved under section 110(l) if EPA finds it will at least preserve status quo air quality. See Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006); GHASP v. EPA, No. 06-61030 (5th Cir. Aug. 13, 2008); see also, e.g., 70 FR 53 (Jan. 3, 2005), 70 FR 28429 (May 18, 2005) (proposed and final rules, upheld in Kentucky Resources, which discuss EPA's interpretation of section 110(l).

In considering the new exemptions in Michigan R. 336.1280 through Michigan R. 336.1290, EPA examined the emission projections provided by MDEQ in the 2003 and 2017 submittals, the structure of the existing SIP permitting rules and the structure of each new exemption, and in some cases conservative air quality analysis (modeling or qualitative analysis in the case of ozone) provided in the 2017 submittal. MDEQ's currently approved permitting SIP generally requires a PTI for any change resulting in an increase in a regulated pollutant unless the particular change falls into one of the categories of exemptions contained in Michigan R. 336.1280 through Michigan R. 336.1290. MDEQ's revisions expand the exempt categories. Several of the exempt categories would have no associated emissions of criteria pollutants. Several other categories of exemptions contain production and operation restrictions and function as a permit by rule. Where the exemption did not contain enforceable limitations on production and operation, and projected emission increases were greater than 10 tons per year of a criteria pollutant, MDEQ provided an air quality analysis. MDEQ and EPA have evaluated the impacts of the proposed revisions, and determined that they do not interfere with attainment of any NAAQS or any other CAA requirement because the use of the exemption provides the same level of control measures as the control measures that would be included in an individual construction permit, the exemption would result in little or no increase in emissions of a criteria pollutant, or MDEQ has provided a suitable air quality analysis demonstrating no interference with attainment, reasonable further progress, or any other requirement of the Act.

Comment 1: It appears that MDEQ and EPA assumed that, if emission increases were less than the major source modification significance levels, then the increase could not interfere with attainment or maintenance of the NAAQS.

EPA Response: EPA agrees that major source modification significance levels alone would be insufficient to demonstrate non-interference. As explained elsewhere in this action, MDEQ's non-interference demonstration took into account factors in addition to the significance levels, i.e., emission projections, the structure of the existing SIP permitting rules and the structure of each new exemption, and in some cases conservative air quality analysis (modeling or qualitative analysis in the case of ozone) provided in the 2017 submittal. When evaluating the effect of the new exemptions, MDEQ and EPA first considered the level of control required by the current SIP. A permit issued under the currently approved SIP does not explicitly require an air quality analysis be performed. The currently approved program ensures the establishment of control measures in the permit. A number of the exemptions are structured as prohibitory rules and as such include control measures that are similar to the control measures that would be included in an individual permit. These may include restrictions on production and operation, restrictions on size of equipment, required control technology, or limits on raw materials used, in order to qualify for the exemption. Under these circumstances, EPA finds that these prohibitory rules, or permits by rule, preserve the status quo of the existing SIP. For other exemptions, MDEQ has demonstrated that the exemption will not result in an increase in emissions or have the potential to emit a criteria pollutant at all. If the exemption has no associated criteria pollutant emissions, no further analysis is necessary. For exemptions that could result in small increases in criteria pollutants, generally less than 10 tons per year, MDEQ has presented an analysis of the observed impacts from eliminating the individual permit requirement. MDEQ has reviewed the state emissions inventory to determine the amount and magnitude of emissions from the sources that are being exempted, and they have reviewed data from monitors within the state. MDEQ has not found that moving away from an individual permit for these smaller exempted sources have resulted in violations of the NAAQS. EPA has reviewed MDEQ's analysis and agrees that no NAAQS violations would result from these small emissions increases. Furthermore, the commenter has not cited any example of an individual permit for these exempt categories that would have established any additional control measures. Finally, for the single exemption that would relax the current SIP and would result in an increase of a criteria pollutant greater than 10 tons per year, MDEQ provided a conservative modeling analysis demonstrating that exempting from permitting sources of that type and size would be unlikely to result in a violation of the NAAQS. EPA has also reviewed this modeling analysis and agrees that it supports MDEQ's conclusion.

Comment 2: The impact of an activity's emissions on air pollutant concentrations is dependent on a myriad of factors including but not limited to stack height, temperature, velocity, topography, other buildings in the vicinity, and background pollutant concentrations; therefore, no specific ton per year level of emissions can be considered as protection of the NAAQS in all locations, and especially for short term average NAAQS.

EPA Response: EPA agrees that it is not possible to set a single ton per year threshold for all situations that would prevent interference. EPA disagrees that the rules set such a ton per year threshold. As discussed elsewhere, tons per year was only one of the factors MDEQ utilized to demonstrate non-interference. As previously stated, EPA does not interpret section 110(l) to require a full attainment or maintenance demonstration before any changes to a SIP may be approved.

Comment 3: MDEQ failed to evaluate emissions for the worst-case scenario under each exemption. This is especially true for the broad exemptions of Michigan R. 336.1285 where MDEQ just gave examples of emission estimates for certain exemptions.

EPA Response: There are a few exemptions where MDEQ did not provide a worst-case analysis; however, in those cases, MDEQ has provided real world examples of how the exemptions have been applied and the resulting emissions increases that are representative of the larger projects that would likely use the exemption. For example, for Michigan R. 336.1285(2)(b)(i)(H), which exempts lengthening a paint drying oven to allow for longer curing time, the emission estimates provided by MDEQ are based on an actual project at a major auto manufacturer.

Comment 4: MDEQ failed to evaluate the cumulative emissions increases that could be exempt for a single source relying on multiple exemptions (such as adding several oil-fired equipment of less than 20 MMBtu/hour pursuant to Michigan R. 336.1282(2)(b)).

EPA Response: MDEQ has provided projected increases from each of the exemptions, and EPA has found the analysis provided by MDEQ to be reasonable. With respect to the specific example provided by the commenter, the fuel burning exemption at Michigan R. 336.1282(2)(b) is structured as a prohibitory rule. The limitations imposed by the rule are equivalent to the types of limitations that would be included in a permit under the currently approved SIP. Moving from an individual permit system to a permit by rule system would preserve the status quo of the existing SIP.

Comment 5: EPA did not require a Section 110(l) analysis for Michigan R. 336.1285(2)(d) which allows for replacement of an air pollution control equipment with equivalent or more efficient equipment. However, this provision could allow an increase in emissions—for example, if a scrubber is installed at a unit utilizing dry sorbent injection for SO2 control, the scrubber would add sources such as lime delivery and storage and for waste disposal. Thus, EPA should not have exempted this rule from a 110(l) analysis.

EPA Response: EPA did not exempt this rule from 110(l) requirements. EPA did determine that no additional analysis beyond the analysis of the exemption included with the 2003 submittal was necessary. As discussed above, EPA does not interpret 110(l) as requiring a full attainment or maintenance demonstration. The exemption is limited to the replacement of existing controls with identical or more efficient controls. Some form of add-on control technology must already exist to use this exemption. In the example provided by the commenter, where a source replaced a dry flue gas desulfurization unit with a wet flue gas desulfurization unit, both the existing controls and the new controls would have used lime in the process. The facility would have already had sources associated with lime delivery and storage, and both controls result in waste material.

Comment 6: While EPA required a 110(l) analysis for Michigan R. 336.1285(2)(e) and (f), MDEQ simply evaluated the emission increase from a couple of examples and did not estimate worst case emissions.

EPA Response: EPA believes that the examples selected by MDEQ are representative of the types of changes that would actually use the exemptions.

Comment 7: EPA and MDEQ have not demonstrated that permit exemptions for activities with emission increases less than PSD significance levels will not interfere with attainment or maintenance of the NAAQS and will otherwise be consistent with the requirements of the Act.

EPA Response: EPA's conclusion that the changes to exempt categories will not interfere with attainment or maintenance of the NAAQS is not based on the assumption that increases less than the PSD significance thresholds will not impact the NAAQS. As discussed above, EPA does not interpret section 110(l) to require a full attainment or maintenance demonstration before any changes to a SIP may be approved. In considering the new exemptions in Michigan R. 336.1280 through Michigan R. 336.1290, EPA examined the emission projections provided by MDEQ in the 2003 and 2017 submittals, the structure of the existing SIP permitting rules and the structure of each new exemption, and in some cases conservative air quality analysis (modeling or qualitative analysis in the case of ozone) provided in the 2017 submittal.

Comment 8: MDEQ's modeling demonstrates that emission increases at levels much lower than the PSD significance levels could threaten attainment of the NAAQS and that other contributing factors such as stack characteristics and background concentration of an area must also be taken into account. Furthermore, because the modeling performed shows modeled concentrations near the 24-hour PM2.5 NAAQS, MDEQ's modeling demonstrates that Michigan R. 336.1285(p) could result in a violation of a NAAQS.

EPA Response: The modeling submitted in support of Michigan R. 336.1285(2)(p) is sufficiently conservative to demonstrate that the exemption is unlikely to result in a violation of a NAAQS. While the modeled concentration for larger tower dryers when combined with a conservative background are approaching the 24-hour PM2.5 NAAQS, this type of equipment is uncommon in the state of Michigan and would be located in rural areas where background concentrations tend to be lower. The more common column dryers would have a significantly lower impact on PM2.5 concentrations.

Comment 9: EPA cannot justify approving Michigan's minor source review exemptions based on how such activities were previously permitted by MDEQ.

EPA Response: As stated above EPA does not interpret section 110(l) to require a full attainment or maintenance demonstration before any changes to a SIP may be approved. When evaluating the effect of any new exemption, EPA must first consider the level of control required by the current SIP. In this case, the evaluation concerns the effect of the individual construction permit issued as required by the currently approved permitting rules. A permit issued under the currently approved SIP does not explicitly require an air quality analysis be performed. What is assured under the currently approved program is the establishment of control measures in the permit. A number of the exemptions are structured as prohibitory rules and include control measures that are similar to the control measures that would be included in an individual permit. These may include restrictions on production and operation, restrictions on size of equipment, required control technology, or limits on raw materials used. Under these circumstances, EPA finds that these prohibitory rules, or permits by rule, preserve the status quo of the existing SIP.

Comment 10: In the proposed approval EPA states, “where an exemption could result in an increase of a regulated pollutant in amounts greater than 10 tons per year, MDEQ provided modeling, or in the case of ozone, a qualitative analysis to demonstrate that the emissions that could result from the exempt categories would have no significant impact on compliance with the NAAQS.” A modeling analysis was only included for Michigan R. 336.1285(2)(p), yet a review of Attachment H to the 2003 submittal shows several categories with estimates exceeding 10 tons per year. Specifically, the commenter has identified the fuel burning equipment exemptions in Michigan R. 336.1282(2)(b).

EPA Response: EPA disagrees to the extent that the commenter is suggesting that a demonstration of non-interference requires modeling for all exemptions. As previously discussed, the fuel burning exemptions in Michigan R. 336.1285(b) are structured as permits by rule and contain enforceable restrictions on capacity and raw materials which are equivalent to the controls that would be included in a permit under the currently approved SIP. Moving from an individual permit system to a permit by rule system would preserve the status quo of the existing SIP. The only exemption that relaxes the current SIP permitting requirements with a resulting increase greater than 10 tons per year is the grain handling exemption at Michigan R. 336.1285(p), for which MDEQ provided a modeling analysis showing that the revision would not interfere with attainment of the NAAQS.

Approximately a week before the end of the first comment period for this rulemaking, EPA was informed of issues with the electronic docket at regulations.gov. The docket incorrectly linked to numerous unrelated documents. Additionally, upon review, EPA noted that certain documents related to the rulemaking were not present. The interested parties requested that the docket be fixed and that EPA extend the comment period. Because of the lack of time remaining on the comment period, EPA was unable to extend the comment period, and informed the interested parties that EPA would address the docket issues and reopen the comment period for an additional 30 days. The comments received after the close of the first comment period noted the docket issues in the comments. EPA added missing information to the docket in September 2017 and published a notice reopening the comment period for 30 days on November 2, 2017.

In comments received during the first reopening, commenters noted that the electronic file for the September 2003 submittal from MDEQ was missing an attachment. The missing information was added to the electronic docket in November of 2017, and the interested parties were informed that EPA would reopen the comment period for a second time for a period of 15 days. The second reopening of the comment period was published on January 9, 2017. EPA believes that the correction of the electronic docket and the two notices reopening the comment period for the rulemaking address all comments related to missing information in the docket.

The comments received during the first reopening also noted that EPA had included copies of several MDEQ policy documents to the docket. The commenters noted that if EPA is proposed to approve any of these documents as part of the SIP, EPA must issue a revised proposed rulemaking making clear to the public which documents it is proposing to approve. EPA is not approving these documents into the SIP and the summary of documents EPA is incorporating into the SIP in Section VI “Incorporation by Reference” in the proposed rulemaking is correct. The policy documents were added because EPA thought they would be of interest to the public. EPA is not relying on these documents to support approval of the rules, and there is no need to re-propose based on the addition of these documents to the docket as suggested by the commenters.

EPA is approving all changes submitted by MDEQ except for changes to Michigan R 336.1205 which includes provisions for public notice. EPA will not be taking any action with respect to the changes in public notice and will be addressing Michigan R 336.1205 in a separate action. The already approved public notice procedures will remain in the SIP until EPA takes action on Michigan R 336.1205.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Michigan Regulations described in the amendments to 40 CFR part 52 set forth below. 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). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Act as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.1

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

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

• 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 Act; and

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

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

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

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 30, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On June 13, 2014, the District Department of the Environment (DDOE) on behalf of the District submitted a revision to its SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS. On April 13, 2015 (80 FR 19538), EPA approved all parts of the District's June 13, 2014 submittal with the exception of the portion of the submittal that addressed section 110(a)(2)(D)(i)(I) of the CAA. Section 110(a)(2)(D)(i)(I), also called the good neighbor provision, consists of two prongs that require that a state's 1 SIP must contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that “contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.” Under section 110(a)(2)(D)(i)(I) of the CAA, EPA gives independent significance to the matter of nonattainment (prong 1) and to that of maintenance (prong 2).

On July 5, 2018 (83 FR 31350), EPA published a notice of proposed rulemaking (NPR) for the District of Columbia, approving the portion of the June 13, 2014 District SIP revision addressing prongs 1 and 2 of the interstate transport requirements for section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.2

In its June 13, 2014 submittal, the District identified the implemented regulations within its SIP that limit nitrogen dioxide (NOX) and/or volatile organic compound (VOC) emissions from District sources.3 The District indicates that there are no electric generating units (EGUs) 4 or other large industrial sources of NOX emissions within the District. In the submittal, the District also included information on non-EGUs and mobile sources and listed the SIP-approved measures that help to reduce NOX and VOC emissions from non-EGU and mobile sources within the District. In the submittal, the District points out that it will continue to rely on federal measures to reduce NOX emissions from onroad and nonroad engines. The District states its sources are already well controlled, and states further reductions beyond the District's current SIP measures are not economically feasible.

EPA evaluated the District's submittal for the 2008 ozone NAAQS, considering: Ozone precursor emissions; an analysis of District source sectors; and in-place controls and regulations. Due to the District's small number of sources and the high cost of further reductions, EPA proposed in its July 5, 2018 NPR that the District's SIP, as presently approved, contains adequate measures to prevent District sources from interfering with maintenance or contributing significantly to nonattainment in another state for the 2008 ozone NAAQS. The rationale for EPA's proposed action was discussed in greater detail in the NPR and accompanying technical support document (TSD) and will not be restated here.

In this rulemaking action, EPA is approving one portion of the District's June 13, 2014 submittal—the portion addressing prongs 1 and 2 of section 110(a)(2)(D)(i)(I) of the CAA. EPA previously acted on other portions of Delaware's June 13, 2014 SIP submittal for the 2008 ozone NAAQS.5

EPA received a total of four anonymous comments on the July 5, 2018 NPR. All of the comments received are included in the docket for this action. Three of the comments did not concern any of the specific issues raised in the NPR, nor did they address EPA's rationale for the proposed approval of the District's submittal. Therefore, EPA is not responding to those comments. EPA did receive one comment considered to be relevant to this rulemaking action.

The commenter indicates that EPA was supposed to take action on the District's SIP revision within 12 months of receiving the SIP submittal. The commenter also indicates the length of time (4 years) it took for EPA to approve the SIP revision from the time of its submittal and questions if transported pollution could have been eliminated if SIP revisions like this one were approved in a timely manner. The commenter asks what air quality and human health impacts the delay of this action has had on neighboring states.

EPA acknowledges that it missed the statutory deadline to take action on the good neighbor portion of the District's June 13, 2014 SIP submittal.6 However, at this time, EPA is taking final action on this SIP revision, and by doing so it will meet all such outstanding obligations under the CAA. The commenter provided no analysis of the statutory consequences, if any, from the action. Further, EPA disagrees with the commenter's questioning that the delayed action on the good neighbor portions of the District's SIP revision has impacted air quality and human health in neighboring states. As explained in the NPR, EPA believes that the District's SIP, as presently approved, contains adequate measures to prevent District sources from interfering with other states' attainment and/or maintenance for the 2008 ozone NAAQS. Thus, EPA's late action on the good neighbor portion of the District of Columbia's June 13, 2014 SIP submittal did not cause any delay in air quality and human health protections as the SIP relies on already in-place regulations and controls that prevent District sources from significantly contributing to nonattainment, or interfering with maintenance, of the 2008 ozone NAAQS in another state.

EPA is approving the portion of the June 13, 2014 District SIP revision addressing prongs 1 and 2 of the interstate transport requirements for section 110(a)(2)(D)(i)(I) of the CAA for the 2008 ozone NAAQS.

On April 13, 2015 (80 FR 19538), EPA approved the following infrastructure elements or portions thereof from the June 13, 2014 submittal: CAA section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). This action approves the remaining portions of the June 13, 2014 SIP revision, which address prongs 1 and 2 of section 110(a)(2)(D)(i)(I) of the CAA, also known as the good neighbor provision. EPA did not take action upon these elements in the Agency's prior SIP approval action, published on April 13, 2015 (80 FR 19538).

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 30, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, addressing the District of Columbia's good neighbor provision for the 2008 ozone NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

On June 4, 2018, the EPA proposed to approve submissions from Colorado, Montana, North Dakota, South Dakota and Wyoming as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS (83 FR 25617). An explanation of the CAA requirements, a detailed analysis of the states' submissions, and the EPA's rationale for approval of each submission were all provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for this proposed rule ended on July 5, 2018. The EPA received one comment letter from the North Dakota Department of Health (NDDH), one comment letter from the Wyoming Department of Environmental Quality (WDEQ) and six anonymous comments on the proposal. The six anonymous comments lacked the required specificity to the Colorado, Montana, North Dakota, South Dakota or Wyoming SIP submissions and the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I). NDDH and WDEQ's comments are addressed below, while the anonymous comments are not addressed because they fall outside the scope of our proposed action.

Comment: NDDH stated that the 2010 and 2016 SO2 emissions levels for their state listed in the proposal rule's “Table 1—SO2 Emission Trends” (83 FR 25618) appeared too high, and that the 2000-2016 SO2 reduction in the table for North Dakota should be 79% rather than the 44% listed in this Table 1. In addition to this recommended correction, NDDH agreed with the EPA's proposed approval of CAA section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for the state of North Dakota, asserting that “sources in North Dakota do not significantly contribute to SO2 concentrations in nonattainment or maintenance areas in other states.” NDDH stated that SO2 emissions in North Dakota continue to decrease, specifically noting the shutdown of the coal-fired electric generating unit Stanton Station in 2017, the forthcoming conversion of the University of North Dakota heating plant from coal to natural gas (permit currently under review), and the continued replacement of coal-fired electrical generation by wind electrical generation as a portion of total electrical generation in the state between 2012 and 2017. NDDH also provided 2017 SO2 monitoring design values, showing that these levels continue to be below the 2010 SO2 NAAQS.

Response: The EPA agrees with the state that the 2010 and 2016 SO2 emission levels for North Dakota listed in “Table 1—SO2 Emission Trends” require correction. With regard to the 2016 SO2 emissions, we derived these emissions data from the EPA's “Air Pollutant Emissions Trends” web page which was updated on March 28, 2018,1 after the values for Table 1 had been calculated. For this reason, the 2016 SO2 emissions levels and the 2000-2016 SO2 emissions reduction for each state listed in Table 1 of the proposed rule are not consistent with those currently presented on the EPA's “Air Pollutant Emissions Trends” web page. Therefore, the EPA has recreated “Table 1—SO2 Emission Trends” below.

The EPA also agrees with NDDH that the 2010 emissions value for North Dakota was incorrect in “Table 1—SO2 Emission Trends.” That value has been corrected in this revised version of the table. The 2010 SO2 emissions levels for all other states, as well as all 2000 and 2005 emissions levels, remain unchanged from those in “Table 1—SO2 Emission Trends” in the proposed rulemaking. The corrected values for North Dakota illustrate an even greater decline in emissions of SO2 than that discussed in the proposed rulemaking. The corrected values in this table are therefore consistent with the EPA's analysis in its proposed determination that emissions from North Dakota are not in violation of section 110(a)(2)(D)(i)(I).

The EPA notes that North Dakota's comment refers to “nonattainment or maintenance areas” (emphasis added) as part of its reiteration that sources within the state do not have certain downwind impacts on other states. The EPA has routinely interpreted the obligation to prohibit emissions that “significantly contribute to nonattainment” of the NAAQS in downwind states to be independent of formal designations because exceedances can happen in any area. Similarly, the EPA does not interpret the reference to “maintenance” under section 110(a)(2)(D)(i)(I) to be limited to maintenance areas, as this provision requires evaluation of the potential impact of upwind emissions on all areas that are currently measuring clean data, but may have issues maintaining that air quality. Nothing in the CAA limits states' obligations under section 110(a)(2)(D)(i)(I) to downwind areas that have been formally designated.

Regarding the additional information provided by NDDH to support the EPA's proposed conclusion that the state meets the requirements of 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS, the EPA agrees that this information is supportive of that conclusion.

Comment: WDEQ expressed support of the EPA's proposed approval of their SIP as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS. However, WDEQ disagreed with the EPA's statement in our proposal that “Wyoming's analysis does not independently address whether the SIP contains adequate provisions prohibiting emissions that will interfere with maintenance of the 2010 SO2 NAAQS in any other state.” 83 FR 25631. WDEQ asserted that its weight of evidence demonstration for prong 1, “significant contribution to nonattainment,” also adequately addresses the requirements for prong 2, “interference with maintenance.” WDEQ also stated that there were no other 2010 SO2 nonattainment or maintenance areas in neighboring states to address at the time of its submission apart from the Billings, Montana 2010 SO2 maintenance area, which WDEQ addressed in that submission when the area was still designated as nonattainment.2

Response: The EPA disagrees that WDEQ's analysis of potential impact on the Billings area represents an independent analysis of 110(a)(2)(D)(i)(I) prong 2. WDEQ's March 6, 2015 submission analyzed Wyoming's potential impact on the Billings area and the lack of additional nonattainment areas in surrounding states to determine whether the Wyoming SIP meets the requirements of prong 1 and prong 2. However, the court in North Carolina v. EPA, (531 F.3d 896, DC Cir. 2008) was specifically concerned with areas not designated nonattainment when it rejected the view that “a state can never `interfere with maintenance' unless the EPA determines that at one point it `contribute[d] significantly to nonattainment.' ” 531 F.3d at 910. The court pointed out that areas barely attaining the standard due in part to emissions from upwind sources would have “no recourse” pursuant to such an interpretation. Id. In accordance with the court's decision and as noted in our proposal, “the EPA interprets CAA section 110(a)(2)(D)(i)(I) prong 2 to require an evaluation of the potential impact of a state's emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality, rather than only former nonattainment, and thus current maintenance, areas.” 83 FR 25621. For this reason, Wyoming's analysis of the Billings area alone would not independently address 110(a)(2)(D)(i)(I) prong 2, based on the EPA's longstanding interpretation of this provision. Because WDEQ did not conduct such an analysis as part of its weight of evidence, the EPA supplemented the state's analysis (see proposal at 83 FR 25631) and proposed to find that Wyoming does not interfere with maintenance of the 2010 SO2 NAAQS in any other state.

With respect to the assertions WDEQ makes in its comments regarding maintenance areas, the EPA does not interpret the reference to “maintenance” under section 110(a)(2)(D)(i)(I) to be limited to maintenance areas. As previously described, this provision requires evaluation of the potential impact of upwind emissions on all areas that are currently measuring clean data, but may have issues maintaining that air quality. Nothing in the CAA limits states' obligations under section 110(a)(2)(D)(i)(I) to downwind areas that have been formally designated.

The EPA is approving the following submission as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS: Colorado's July 17, 2013 and February 16, 2018 submissions; Montana's July 15, 2013 submission; North Dakota's March 7, 2013 submission; South Dakota's December 20, 2013 submission; and Wyoming's March 6, 2015 submission. This action is being taken under section 110 of the CAA.

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, the 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 do 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, 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 the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 30, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows: