Federal Register Vol. 83, No.29,

Background

The phytosanitary treatments regulations in 7 CFR part 305 set out general requirements for certifying or approving treatment facilities and for performing treatments listed in the Plant Protection and Quarantine (PPQ) Treatment Manual 1 for fruits, vegetables, and other articles to prevent the introduction or dissemination of plant pests or noxious weeds into or through the United States. Within part 305, §  305.6 (referred to below as the regulations) sets out requirements for treatment procedures, monitoring, facilities, and enclosures needed for performing sustained refrigeration (cold treatment) sufficient to kill certain insect pests associated with imported fruits and vegetables and with regulated articles moved interstate from quarantined areas within the United States. Under the regulations, all facilities used to provide upon arrival cold treatment for these articles must operate under a compliance agreement with the Animal and Plant Health Inspection Service (APHIS) and be certified as capable of delivering required cold treatment and handling articles to prevent reinfestation of treated articles. An inspector 2 monitors all upon arrival treatments. The regulations require safeguards to prevent the escape of pests during transportation to and while at the facility. These include, but are not limited to, inspections, precooling, and physical separation of untreated and treated articles. The facility must maintain records of all treatments and must periodically be recertified. These conditions have allowed for the safe, effective treatment of many different kinds of articles, as is demonstrated by the track record of cold treatment facilities currently operating in the United States and other countries.

In § 305.6, paragraph (b) allows cold treatment facilities to be located in the area north of 39° latitude and east of 104° longitude. When the cold treatment regulations were established, areas outside of these coordinates were identified as having conditions favorable for the establishment of exotic fruit flies. The location restrictions served as an additional safeguard against the possibility that fruit flies could escape from imported articles prior to treatment and become established in the United States.

Although the regulations initially did not allow cold treatment facilities to be located in Southern and Western States, APHIS periodically received requests for exemptions. In response to these requests, APHIS conducted site-specific evaluations for these locations and determined that regulated articles can be safely transported to, handled in, and treated by specific cold treatment facilities outside of the areas established by the regulations under special conditions to mitigate the possible escape of pests of concern. Over the years, APHIS has amended its regulations to allow cold treatment facilities to be located at the maritime ports of Wilmington, NC; Seattle, WA; Corpus Christi, TX; and Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA; Hartsfield-Atlanta International Airport, Atlanta, GA; and, most recently, MidAmerica St. Louis Airport, Mascoutah, IL.

In addition to those requests, certain importers of fruits and vegetables have shown considerable interest in locating cold treatment facilities in places that are not currently allowed under the regulations (e.g., Miami and Port Everglades, FL, and Savannah, GA).

On June 30, 2016, we published in the Federal Register (81 FR 42569-42576, Docket No. APHIS-2013-0081) a proposal 3 to amend the regulations by establishing generic phytosanitary criteria that would replace the current location-specific criteria for cold treatment facilities at the ports mentioned previously and would also apply to the approval and operation of new cold treatment facilities in the Southern and Western States of the United States.

We also proposed to expand our requirements for initial cold treatment facility certification and recertification; expand the fruit cutting and inspection requirements in order to state that consignments treated for other fruit flies and pests of concern may be subject to sampling and cutting; combine requirements both domestic and foreign cold treatment facilities and importers would have to meet in order to enter into a compliance agreement with APHIS; add language regarding compliance agreements required in association with articles moved interstate from Hawaii and the U.S. territories; add a section to the regulations concerning fumigation treatment to provide that both domestic and foreign fumigation treatment facilities and importers enter into a compliance agreement with APHIS; add a definition for “treatment facility” to the regulations in §  305.1; and remove a cold treatment schedule from the PPQ Treatment Manual.

We solicited comments concerning our proposal for 60 days ending August 29, 2016. We received 42 comments by that date. They were from producers, exporters, industry groups, private citizens, and a State department of agriculture. Of those, 26 were wholly supportive of the proposed action. The remainder are discussed below by topic.

Several commenters argued that granting the exemptions described previously that have allowed for the establishment of cold treatment facilities in a number of Southern and Western States mistakenly served to further liberalize the regulations and lessen the phytosanitary safety of the United States.

As stated previously, prior to the establishment of those cold treatment facilities, we conducted site-specific evaluations for each location and determined that regulated articles could be safely transported to, handled in, and treated subject to special conditions designed to mitigate the possible escape of pests of concern. These evaluations and proposals were made available both to the States in which the facilities would be established and the general public for review and comment. We have successfully established cold treatment facilities in seven locations outside of the areas established by the regulations and they have operated without incident. If a facility were to be found out of compliance with the requirements of the regulations, we would take appropriate remedial action to ensure ongoing phytosanitary security.

A number of commenters hypothesized that the proposed rule was intended to satisfy nonagricultural entities (e.g., importers, facility owners) with little concern for the phytosanitary risk involved to the agricultural sector.

We have determined that the measures specified in the treatment evaluation document (TED) that accompanied the proposed rule (e.g., requirements concerning facility planning and location, transport of regulated articles to the facility for treatment, and handling of regulated articles after treatment) will effectively lessen the risk associated with locating cold treatment facilities in the Southern and Western States of the United States. In addition, as noted in the proposed rule, the criteria we are establishing are similar to those successfully used for the approval of new irradiation facilities in the Southern United States found in §  305.9 of the regulations, as untreated fruit moving to irradiation facilities in those States presents the same pest risks as untreated fruit moving to cold treatment facilities. APHIS' evaluation process is solely based on this evaluated level of phytosanitary risk and not on the identity of any of the individuals or entities supportive of the change. The commenters did not provide any evidence suggesting that the measures are not effective.

One commenter asked about the impetus for the proposed rule. The commenter suggested that greater flexibility for importers and a higher volume of imports serving as a revenue generating device for ports were the two obvious motivations for the change.

We developed the proposed rule in response to a number of pending requests for the approval of cold treatment facilities. After considering the issue and the associated phytosanitary risks, we determined that generic criteria could be established for the approval of new facilities that would streamline the approval process while at the same time minimizing the risk of pests escaping from regulated articles prior to cold treatment.

Another commenter stated that U.S. Customs and Border Protection (CBP) has reported pest interceptions and that the volume of those interceptions is greater today than it was in the past.

The commenter provided no evidence to support the claim of increased pest interceptions related to commercial commodities imported or moved interstate in the United States for cold treatment. In addition, the commenter did not specify the identities of the pests of concern, the commodities with which the pests are associated, whether those commodities were imported or moved commercially or non-commercially, or what State or States are the focus of particular concern when it comes to the supposed increase in interceptions. In the absence of specific information we cannot provide targeted CBP data to address the commenter's claim, however we have not noted a general increase in pest interceptions.

One commenter expressed concern over the phytosanitary risk inherent in allowing untreated fruits and vegetables to travel through areas where host material may exist to a facility in proximity to domestic host material. Another commenter said that APHIS should not allow cold treatment facilities to be located near areas producing domestic host material, nor should we allow access to such facilities via highways or railways that run through areas producing host material. One commenter stated that invasive species are not introduced directly to farming communities, but instead become established first in urban areas adjacent to ports or terminal markets before spreading elsewhere. The commenter urged us to examine this phenomenon.

A number of commenters expressed specific concerns regarding potential pest incursion into the State of Florida. One commenter stated the recent establishment of citrus canker, citrus black spot, and citrus greening should serve to eliminate Florida as a potential location for cold treatment facilities. Four commenters said that, due to the overall risk of fruit fly and other pest introduction to the State of Florida, APHIS should exclude commodities originating from areas where certain fruit flies are known to exist from the consolidated regulations. Two commenters said that cold treatment should be completed prior to any shipment's arrival in the State of Florida in order to ensure the phytosanitary security of domestic crops. Another commenter argued that because foreign production areas are not well monitored, cold treatment should occur prior to departure from the shipment's country of origin.

The regulations in §  305.6 allow for cold treatment of articles either prior to or after arrival in the United States, provided that an APHIS-approved facility is available. Articles may be treated in the United States instead of the exporting country for several reasons, including when the exporting country lacks the resources, technical expertise, or infrastructure to treat articles prior to export. The regulations require safeguards that have successfully prevented the introduction or dissemination of plant pests into or within the United States via the importation or interstate movement of cold treated articles in the past. Based on our experience, we are confident that exporting countries have the ability to comply with all APHIS requirements and commodities from exporting countries can be safely treated in the United States.

APHIS recognizes that the Southern and Western States of the United States have conditions favorable for the establishment of certain pests, and that is why we proposed additional safeguards for cold treatment facilities in these States that go beyond the current requirements that apply to all cold treatment facilities. These safeguards include the requirements that untreated articles may not be removed from their packaging prior to treatment under any circumstances, that refrigerated or air-conditioned conveyances must be used to transport regulated articles to the treatment facility, and that facilities have contingency plans for safely destroying or disposing of regulated articles if the facility was unable to properly treat a shipment. To help prevent establishment of pests in the unlikely event that they escape despite the required precautions, we will require trapping and other pest monitoring activities within 4 square miles of the facility to help prevent establishment of any escaped pests of concern. Those activities will be paid for by the facility.

APHIS will only approve a proposed facility if the Administrator determines that regulated articles can be safely transported to the facility from a port of entry or points of origin in the United States. We believe that the mitigations included in this final rule have proven effective in mitigating the risk associated with the importation of commodities into the United States, and thus will provide protection against the introduction or dissemination of pests of concern into the United States.

A number of commenters asked what had changed in APHIS' assessment of phytosanitary risk since the cold treatment regulations were originally established. The commenters specifically pointed to § 305.6(b), which states that “cold treatment facilities are to be located in the area North of the 39th latitude and east of the 104th longitude as areas outside of these coordinates are identified as having conditions favorable for the establishment of exotic fruit flies.” The commenters argued that the original justification for the prohibition on facility location is still valid.

The TED that accompanied the proposed rule referenced a study conducted in 1994, which was the basis for our initial decision to prohibit the movement of host materials to cold treatment facilities in the Southern and Western States of the United States. The study recommended restricting or prohibiting the movement of host materials through these States unless strict measures were applied to manage the associated risks. Since that time, in response to petitions and after site-specific evaluations, APHIS has approved several Southern and Western locations where facilities could be established to receive and cold treat foreign fruits or vegetables provided certain conditions determined by APHIS to result in the safe transport of regulated articles to the treatment facility, were followed. It is our experience with these stringent, additional measures that has led us to conclude that generic criteria can be safely established.

Many commenters stated that the potential escape of fruit flies represented too great a phytosanitary risk and added that the proposed regulations could expose domestic citrus crops to citrus leprosis virus, spread by Brevipalpus mites. Several other commenters cited the dangers to the domestic avocado industry posed by laurel wilt, spread by the ambrosia beetle (Xyleborus glabratus). Another commenter argued that even with restrictions in place, devastating insects such as the emerald ash borer (Agrilus planipennis, EAB), Asian longhorned beetle (Anoplophora glabripennis, ALB), and brown marmorated stink bug (Halyomorpha halys) eluded detection, established, and spread. One commenter used the State of Florida's Mediterranean fruit fly (Ceratitis capitata, Medfly) trapping program as a cautionary example. The commenter stated that, despite the State's use of trapping and the release of sterile insects, accidental incursions of Medfly occurred in 2010 and 2011, resulting in a cost of approximately $4 million in each case to achieve eradication.

As this rule does not certify any additional cold treatment facilities, such specific pest concerns are outside the scope of the current regulation, although we note that the introductions of EAB, ALB, and brown marmorated stink bug were all associated with wood packing material, which, at the time of the pests' first entrance into the United States, was not safeguarded at the level of imported fruits and vegetables. Any new treatment facilities would have to be authorized using the criteria described in the regulation, which would include analysis of any potential host materials in the area. The commenter did not specify whether the Medfly incursions in 2010 and 2011 were determined by the State of Florida to originate from commercial or noncommercial sources, but we would note that accidental incursions of fruit flies from commercially produced fruit represent less phytosanitary risk, as produce grown commercially is less likely to be infested with plant pests than noncommercial consignments due to the standardized way in which it is grown, harvested, and packaged.

A commenter said that the cumulative results of authorizing cold treatment facilities in the Southern and Western States of the United States should not be ignored. The commenter argued that, while individual approvals may create negligible risk, taken as a whole they lead to an overall decline in phytosanitary safety. The commenter further stated that the subsequent establishment of quarantine pests domestically then hampers the ability of domestic producers to export their products due to increased stringency in import markets abroad.

We disagree with the commenter's point. While it is true that cold treatment facilities were and will continue to be evaluated on an individual basis, as stated previously, the fact that pests of concern are more likely to become established in the Southern and Western States of the United States is why we proposed additional safeguards for cold treatment facilities in these States that go beyond the current requirements that apply to all cold treatment facilities. We disagree that any increase in the number of authorized cold treatment facilities will necessarily create an unacceptable level of risk. Prospective facility operators must submit a detailed layout of the facility site and its location to APHIS. Location information would include any nearby facilities and those facilities would be a part of APHIS' overall consideration of plant health risks for the requested location. We also note that the requirements regarding safeguarding during transit to, treatment, and shipment from the facilities will also serve to preclude escape of quarantine pests into the environment, regardless of the number of other treatment facilities in a given area. The commenter provided no evidence that the establishment of quarantine pests in domestic host material is a given, therefore the commenter's final point about potential impacts to domestic producers does not apply.

Two commenters expressed concern at the elimination of the need for rulemaking for future individual cold treatment facility approvals in Southern and Western States. The commenters were particularly worried about the elimination of a public comment period and other stakeholder outreach methods.

Prior to approving a new cold treatment facility, APHIS will enter into consultation with the State in which the prospective facility will be located. Facility approval will be coordinated through APHIS' Field Operations unit, which routinely keeps potentially affected stakeholders apprised of any pending APHIS approvals. These actions will serve to complement the State's own outreach. As circumstances warrant APHIS may use additional outreach tools.

One commenter was partially supportive of our proposal but suggested that we require that approved cold treatment facilities also be approved to apply alternative treatments, such as fumigation with methyl bromide or irradiation.

While it is certainly possible for a treatment facility to be certified to perform more than one variety of treatment, we see no reason to require that cold treatment facilities be so certified because we are confident that our regulations require that any regulated articles be separated prior to, during, and after treatment. If a facility were to engage in different varieties of treatment those treatments would be required to be completed separate from one another.

Another commenter recommended that we require, whenever possible, that phytosanitary treatments be performed prior to shipment arrival in the United States in order to prevent accidental introduction of pests of concern.

As stated previously, the regulations in §  305.6 allow for cold treatment of articles either prior to or after arrival in the United States, provided that an APHIS-approved facility is available.

The State government of the Southern or Western State in which the facility will be located will also have to concur in writing with the location of the cold treatment facility. If the State government does not concur, it must provide a written explanation of concern based on pest risks. In instances where the State government does not concur with the proposed facility location, and provides a written explanation of concern based on pest risks, then APHIS and the State will need to agree on a strategy to resolve such risks before APHIS approves the facility.

A commenter suggested that we stipulate that written explanations be provided within 60 days of the submission of the required documents by the prospective facility owner. The commenter also suggested that, in instances where the State government does not concur with the proposed facility location, APHIS and the State will agree on a strategy to resolve the pest risk concerns prior to APHIS approval within a reasonable period not to exceed 120 days from the submission of the required documents by the prospective facility owner.

A reasonable length of time to be determined by APHIS will be given for the State to respond after the proposal for the location and layout of the facility site are submitted to APHIS by the prospective facility owner. Time frames for response will be determined on a case-by-case basis, based on APHIS' own evaluation of the submitted materials.

One commenter asked that a State's ability to maintain an objection to the placement of a cold treatment facility beyond the stipulated consultation and negotiation with APHIS be specifically addressed in the regulations.

As stated previously, we will first come to concurrence with the State in which the prospective cold treatment facility will be located before approving the facility. Because concurrence is reached on a case-by-case basis, this allows us to ensure that the State's phytosanitary risk-based concerns have been thoroughly addressed.

Another commenter said that a State should not be able to veto a given proposal simply because it opposes the establishment of cold treatment facilities within its borders or insists upon an unrealistic level of phytosanitary protection. The commenter requested language be included that assures prospective facility owners that reasonable efforts will be made to come to agreement on the establishment of facilities deemed acceptable by APHIS and objectionable by individual States.

The standards are similar to the procedure we successfully use for the approval of irradiation facilities in Southern and Western States as currently described in § 305.9. In instances where the State government does not concur with the proposed facility location, APHIS and the State will collaborate to resolve these concerns. These requirements are intended to give States an opportunity to provide information to APHIS to help ensure that all facilities will have appropriate safeguards in place prior to APHIS approval.

Several commenters argued that cold treatment facilities should not be located in the State of Florida due to its wide range of diverse habitats and climate ranges and the resulting likelihood of accidental exotic plant pest introduction and establishment.

While APHIS acknowledges that Florida's environment is uniquely hospitable to the establishment of certain plant pests, the generic criteria for establishing cold treatment facilities in Southern and Western States include safeguarding measures above and beyond those already in place for facilities located elsewhere in the country. Additionally, when the location of the proposed facility raises phytosanitary concerns that are not addressed by the generic criteria, additional safeguards will be required for any facility established in that area, such as increased inspections and trapping based on quarantine pests associated with specific regulated articles. Any additional measures mandated for a particular facility will be stipulated in the facility compliance agreement. Finally, States will have the opportunity to review the layout of the facility and its proposed location prior to any APHIS approval, and to present pest risk concerns that may be associated with the facility or its location that necessitate further safeguarding. It is possible that, collectively, these safeguards would mitigate phytosanitary risk to a level allowing for the establishment of a facility in the State of Florida. We therefore cannot grant the commenter's request for a blanket prohibition on constructing facilities in that State.

While specific comments on the initial regulatory flexibility analysis are specifically addressed in this document and in the final regulatory flexibility analysis, we received a number of comments concerning the overall economic effect of the rule as it relates to the establishment of generic criteria that would allow for the approval of new cold treatment facilities in the Southern and Western States of the United States.

One commenter cited the World Trade Organization's (WTO) Article 5, “Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection,” which states: “In assessing the risk to animal or plant life or health and determining the measure to be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into account as relevant economic factors: The potential damage in terms of loss of production or sales in the event of the entry, establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks.” The commenter argued that the establishment of generic standards that eliminate the need for rulemaking to approve new facilities, and thus the elimination of the economic analyses that would be prepared as part of the rulemaking process, is in conflict with the WTO mandate, as it will impact APHIS' ability to consider such consequences. The commenter concluded that it is not reasonable for APHIS to make a blanket determination that the future economic impact of unspecified foreign imports entering the United States for cold treatment will always be of little significance.

We disagree that our actions are in conflict with WTO Article 5. While specific economic analyses will not be conducted in connection with approvals of new cold treatment facilities, the potential economic consequences of pest introduction associated with a given commodity are considered at the same time we consider potential mitigation measures during the development of the risk mitigation document that accompanies proposed actions.

Several commenters stated that the financial consequences of pest infestation would be too great to allow for any imported host material to be treated in the Southern or Western States.

We believe that the cold treatment and the additional specific safeguarding measures that will be in place at a given facility under compliance agreement are adequate to mitigate the phytosanitary risks presented by such materials. If the risks cannot be adequately mitigated, a facility or specific commodities would not be approved.

One commenter observed that, while it is true that the rule does not approve individual facilities, it creates the mechanism for all future approvals. The commenter argued that we should therefore project the economic impact of utilization of the new process at various levels of intensity over time.

The commenter is correct that the economic impact of any new facilities is not a direct result of this rulemaking. However, we do recognize that facilities that are currently awaiting approval will reasonably be expected to be evaluated under the new criteria of this rule. We have included a discussion of these facilities in the analysis for the final rule.

The same commenter said that the economic analysis failed to consider the full scope of small entities potentially affected by the rule. The commenter stated that we should include possible impacts on farming activities in Southern and Western States that could be impacted by phytosanitary threats that are intended to be mitigated by cold treatment.

We disagree. As stated previously, we believe that the additional specific safeguarding measures that will be required at a given facility under compliance agreement in a Southern or Western State will adequately mitigate the phytosanitary threats presented. If threats cannot be adequately mitigated, a facility or specific commodities will not be approved.

We proposed to add a section to the regulations concerning fumigation treatment found in § 305.5 to provide that fumigation treatment facilities outside the United States enter into a compliance agreement, or an equivalent agreement such as a workplan agreement, with APHIS.

Upon further consideration, we have decided not to finalize this requirement at this time. The vast majority of fumigations performed outside the United States are done in connection with importation of regulated wood articles, such as Chinese wooden handicrafts, for which there are already compliance agreements or workplan agreements in place with the production facilities, or international agreements on treatment with certification through the International Plant Protection Convention. We will continue to closely monitor the issue and address any problems that arise on a case-by-case basis. If circumstances dictate a need for greater APHIS oversight of these facilities, we will respond accordingly.

We also proposed, when fumigation of imported plants and plant products is conducted domestically, to require that importers enter into a compliance agreement with APHIS, and agree to comply with any requirements deemed necessary by the Administrator.

After further evaluation, we have determined that this proposed requirement is unnecessary. We proposed the requirement in order to establish consistency between requirements for the application of fumigation treatment of imported products, and the application of irradiation treatment for imported products.

In so doing, however, we failed to adequately consider an important distinction between the two types of treatment: Approved irradiation facilities are often not located in port environs, and are sometimes located hundreds of miles from ports of entry, fumigation is almost always conducted within port of entry environs, and, in the few instances when it is not, there are many long-standing mechanisms in place to ensure chain of custody and safeguarded transit to the fumigation facility. Accordingly, while requiring importers to enter into compliance agreements plays a vital role in ensuring adequate safeguarding of imported commodities during their transit from ports of entry to irradiation facilities, there is no corresponding need for compliance agreements for articles destined for fumigation.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866. Further, APHIS considers this rule to be a deregulatory action under E.O. 13771 as it will eliminate the need for specific rulemaking for the establishment of cold treatment facilities, thus reducing the time needed for approval of cold treatment facilities without affecting the analysis or mitigation of risk.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov website (see footnote 3 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

We are establishing general criteria for new cold treatment facilities in the Southern and Western United States. These general criteria will be supplemented as necessary by additional measures, as described in the facility's compliance agreement and based on its location and on the pests of concern associated with the regulated articles that will be treated at the facility. APHIS approval of new facilities will not require specific rulemaking. By eliminating the need for specific rulemaking for the establishment of cold treatment facilities, considerable time savings in bringing a new facility online may be achieved. A significant portion of the time needed to approve a new facility is due to the rulemaking process. This rule will reduce the time needed for approval of cold treatment facilities without affecting the analysis or mitigation of risk. The rule will simply set forth the general criteria, not approve any new facilities.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection requirements included in this final rule, which were filed under 0579-0450, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in the Federal Register providing notice of what action we plan to take.

The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.

Accordingly, we are amending 7 CFR part 305 as follows:

I. Background A. Statutory and Regulatory Background for the Existing Housing Goals

The Safety and Soundness Act requires FHFA to establish annual housing goals for several categories of both single-family and multifamily mortgages purchased by Fannie Mae and Freddie Mac.1 The annual housing goals are one measure of the extent to which the Enterprises are meeting their public purposes, which include “an affirmative obligation to facilitate the financing of affordable housing for low- and moderate-income families in a manner consistent with their overall public purposes, while maintaining a strong financial condition and a reasonable economic return.” 2

The housing goals provisions of the Safety and Soundness Act were substantially revised in 2008 with the enactment of the Housing and Economic Recovery Act, which amended the Safety and Soundness Act.3 Under this revised structure, FHFA established housing goals for the Enterprises for 2010 and 2011 in a final rule published on September 14, 2010.4 FHFA established housing goals levels for the Enterprises for 2012 through 2014 in a final rule published on November 13, 2012.5 In a final rule published on September 3, 2015, FHFA announced the housing goals for the Enterprises for 2015 through 2017, including a new small multifamily low-income housing subgoal.6

Single-family goals. The single-family goals defined under the Safety and Soundness Act include separate categories for home purchase mortgages for low-income families, very low-income families, and families that reside in low-income areas. Performance on the single-family home purchase goals is measured as the percentage of the total home purchase mortgages purchased by an Enterprise each year that qualify for each goal or subgoal. There is also a separate goal for refinancing mortgages for low-income families, and performance on the refinancing goal is determined in a similar way.

Under the Safety and Soundness Act, the single-family housing goals are limited to mortgages on owner-occupied housing with one to four units total. The single-family goals cover conventional, conforming mortgages, defined as mortgages that are not insured or guaranteed by the Federal Housing Administration (FHA) or another government agency and with principal balances that do not exceed the loan limits for Enterprise mortgages.

Market measurement. The performance of the Enterprises on the single-family housing goals is evaluated using a two-part approach, which compares the goal-qualifying share of the Enterprise's mortgage purchases to two separate measures: A benchmark level and a market level. FHFA considered alternatives to this method in the 2015-2017 housing goals rulemaking and determined that the two-part approach continued to be the most appropriate method for evaluating performance on the single-family goals. FHFA is continuing that approach in this final rule.

In order to meet a single-family housing goal or subgoal, the percentage of mortgage purchases by an Enterprise that meet each goal or subgoal must meet or exceed either the benchmark level or the market level for that year. The benchmark level is set prospectively by rulemaking based on various factors, including FHFA's forecast of the goal-qualifying share of the overall market for each year. The market level is determined retrospectively each year, based on the actual goal-qualifying share of the overall market as measured by FHFA based on Home Mortgage Disclosure Act (HMDA) data for that year. The overall mortgage market that FHFA uses for both the prospective market forecasts and the retrospective market measurement consists of all single-family owner-occupied conventional conforming mortgages that would be eligible for purchase by either Enterprise. It includes loans reported in HMDA as sold to the Enterprises as well as comparable loans reported to HMDA as held in a lender's portfolio. It also includes comparable loans that are reported in HMDA as “sold to others.” This category includes loans reported as sold to Farmer Mac, private securitization, commercial banks, savings banks, life insurance companies, credit unions, mortgage bank and finance companies and their affiliates. Because HMDA data is reported as of a single point in time, the same loan could be reported in any of these categories in a particular calendar year, regardless of the ultimate disposition of the loan.

The market as measured based on HMDA data is different from the “actual market” of loans that an Enterprise may purchase for purposes of meeting the goals. Both the benchmark level and the retrospective market level measure the goal-qualifying share of the overall market for the year in question and exclude “seasoned loans.” Seasoned loans are loans that were originated in prior years and acquired by the Enterprise in the current year. While both the benchmark and the retrospective market measure are designed to measure the current year's mortgage originations, the performance of the Enterprises on the housing goals includes all Enterprise purchases in that year, regardless of the year in which the loan was originated. This provides housing goals credit when the Enterprises acquire qualified seasoned loans. The Enterprises' acquisition of seasoned loans provides an important source of liquidity for this market segment.

The market as measured based on HMDA data is also different from the “actual market” because the “actual market” includes loans from institutions that are not required to report under HMDA.7 For instance, Bhutta, Laufer, and Ringo (2017) estimate that loans in HMDA data for 2016 represented 90% of the first-lien, home purchase and refinance loans found in Equifax's consumer credit files.8

The differences between the market as measured based on HMDA data and the “actual market” of loans available for purchase by the Enterprises may help explain why Enterprise performance on the income-based home purchase goals generally do not coincide with the market as measured by HMDA. As noted by commenters on the proposed rule, between 2010-2015, each Enterprise met the retrospective HMDA market level for the low-income home purchase goal in only one year (2014 for Fannie Mae and 2010 for Freddie Mac), and only one Enterprise met the retrospective HMDA market level for the very low-income home purchase goal in one year (2014 for Fannie Mae). While the performance of the Enterprises has generally lagged the retrospective HMDA market levels, particularly for the income-based home purchase goals, FHFA continues to believe that the HMDA market levels represent feasible targets for the Enterprises. FHFA expects the Enterprises to continue to make efforts to meet the retrospective HMDA market levels, consistent with maintaining safe and sound credit quality standards, regardless of whether the market levels exceed or fall below the benchmark levels.

Recent changes to the HMDA regulations will likely result in the HMDA data covering an even greater portion of the single-family mortgage market.9 The changes will also provide more detailed information about the loans included in the HMDA data. The changes to the HMDA regulations generally took effect at the start of 2018, so the new, more detailed information will not be available until after the 2018 performance year.

FHFA has considered the possible impact that certain changes to the HMDA regulations may have on the Enterprise housing goals. However, at this time the impact that such changes might have on the retrospective measure of the market is uncertain. FHFA is not making any changes to the Enterprise housing goals in anticipation of the revised HMDA data. FHFA will assess the impact of the changes and, if necessary, may propose changes to the housing goals regulation at a later date.

Multifamily goals. The multifamily goals defined under the Safety and Soundness Act include separate categories for mortgages on multifamily properties (properties with five or more units) with rental units affordable to low-income families and for mortgages on multifamily properties with rental units affordable to very low-income families. FHFA has also established by regulation a small multifamily low-income subgoal for properties with 5-50 units. The multifamily goals evaluate the performance of the Enterprises based on numeric targets, not percentages, for the number of affordable units in properties backed by mortgages purchased by an Enterprise. The regulation does not include a retrospective market level measure for the multifamily goals and subgoals, due in part to a lack of comprehensive data about the multifamily market such as that provided by HMDA for single-family mortgages. As a result, FHFA currently measures Enterprise multifamily goals performance against the benchmark levels only. The expanded HMDA fields that will be available for the 2018 performance year are expected to include information on the number of units in the properties securing each multifamily loan and should be helpful in evaluating performance for this market segment.

Under the housing goals regulation first established by FHFA in 2010, as well as under this final rule, FHFA may reduce the benchmark levels for any of the single-family or multifamily housing goals in a particular year without going through notice and comment rulemaking based on a determination by FHFA that (1) market and economic conditions or the financial condition of the Enterprise require a reduction, or (2) “efforts to meet the goal or subgoal would result in the constraint of liquidity, over-investment in certain market segments, or other consequences contrary to the intent of the Safety and Soundness Act or the purposes of the Charter Acts.” 10 The housing goals regulation also takes into account the possibility that achievement of a particular housing goal may or may not have been feasible for the Enterprise. If FHFA determines that a housing goal was not feasible for the Enterprise to achieve, then the regulation provides for no further enforcement of that housing goal for that year.11

If after publication of this final rule FHFA determines that any of the single-family or multifamily housing goals should be adjusted in light of market conditions, to ensure the safety and soundness of the Enterprises, or for any other reason, FHFA will take steps as necessary and appropriate to adjust that goal. Such steps could include adjusting the benchmark levels through the processes in the existing regulation or establishing revised housing goal levels through notice and comment rulemaking.

On September 6, 2008, FHFA placed each Enterprise into conservatorship. Although the Enterprises remain in conservatorship at this time, they continue to have the mission of supporting a stable and liquid national market for residential mortgage financing. FHFA has continued to establish annual housing goals for the Enterprises and to assess their performance under the housing goals each year during conservatorship.

FHFA published a proposed rule in the Federal Register on July 7, 2017 that proposed benchmark levels for each of the single-family and multifamily housing goals and technical changes to the regulations.12 The comment period ended on September 5, 2017.

FHFA received 24 comment letters on the proposed rule, representing the views of more than 40 organizations and individuals. Comments were submitted by seven individuals; eight policy advocacy organizations; seven trade associations representing lenders, home builders, credit unions, and other mortgage market participants; and Fannie Mae and Freddie Mac. FHFA has reviewed and considered all of the comments. A number of comment letters raised issues unrelated to the housing goals or beyond the scope of the proposed rule, and those comments are not addressed in this final rule. Specific provisions of the proposed rule, and the comments received on those provisions, are discussed below and throughout this final rule.

Qualitative Measures. Four commenters—a trade organization, an advocacy organization, and Fannie Mae and Freddie Mac—suggested that FHFA consider qualitative efforts when evaluating the performance of the Enterprises under the housing goals, including building partnerships with community-based organizations and developing new or innovative products. Freddie Mac highlighted efforts like outreach, education, and relationship building with organizations, which take time and energy to create and maintain, but noted that these activities are not technically counted until they result in actual loan purchases. Fannie Mae stated that qualitative measures should be taken into account when determining whether the goals were met. Fannie Mae also suggested that qualitative measures should be considered by FHFA in determining whether an Enterprise should be required to submit a housing plan. FHFA recognizes that the quantitative performance outcomes of the Enterprises may not fully reflect the efforts that the Enterprises have made in seeking to improve their performance. In particular, quantitative measures will not always reflect the impact of market developments outside the control of the Enterprises that may have a significant impact on the ability of the Enterprises to meet the housing goals. On the other hand, quantitative benchmarks provide a bright line for measuring performance that qualitative measures do not. In addition, FHFA does take into account the qualitative efforts of the Enterprises in attempting to meet the housing goals when FHFA assesses the feasibility of any housing goals that an Enterprise fails to achieve, as well as whether to require an Enterprise to submit a housing plan if the Enterprise fails to achieve a goal that was feasible. On balance, FHFA remains unconvinced about the value of adding qualitative factors to the benchmarks or of replacing quantitative benchmarks against which progress can be objectively measured.

Single-Family Rental. Two commenters discussed the treatment of single-family rental housing under the goals, recognizing that this is still an emerging segment. One comment letter (representing multiple consumer advocacy groups) noted that “while our organizations have significant concerns about the Enterprises financing investors in the single-family rental market, if this financing becomes more firmly established as part of the Enterprise multifamily channel, it is critical that FHFA develop a goal that addresses affordability in this context.” Further, noting that “the Enterprises have always played a part in single-family rental by financing 2-4 unit properties owned by an owner-occupant,” the letter recommended that FHFA offer “bonus credit for owner-occupied 2-4 unit properties . . . when the owner has participated in a certified counseling program that includes landlord training.”

The other comment letter (from a trade organization) encouraged FHFA to develop an approach to single-family rental as a part of the multifamily goals and to provide clarity on whether single-family rental will be counted for multifamily housing goals, and if so, how it will be categorized and measured.

FHFA is actively monitoring this market segment and developing an overall regulatory approach to single-family rental. The housing goals regulation permits FHFA to “determine whether and how any transaction or class of transactions shall be counted for purposes of the housing goals.” 13 FHFA may provide specific guidance to the Enterprises under this provision that may allow the Enterprises to count some single-family rental properties that are financed as multifamily transactions toward the performance of the Enterprises on the multifamily housing goals. Any such guidance would be subject to appropriate limits to ensure that the overall multifamily housing goals continue to provide meaningful incentives for the Enterprises in the categories targeted by the housing goals. FHFA may also consider options to address single-family rental properties more systematically through future notice and comment rulemaking.

Manufactured Housing—Chattel. One commenter stated that “loans for owner-occupied real property and chattel manufactured home have always counted toward single-family housing goals, provided they meet the appropriate income threshold for the goal.” This statement is not an accurate description of the housing goals regulation. Prior to 2010, the regulation defined the term “mortgage” to include a loan secured by “a manufactured home that is personal property under the laws of the State in which the manufactured home is located.” FHFA revised the definition in 2010 to remove this language and thus to exclude chattel loans on manufactured housing from coverage under the housing goals regulation. The Supplementary Information for the 2010 final rule recognized that the role of the Enterprises with respect to chattel loans on manufactured housing was subject to change, and also stated that “FHFA may revise the definition of `mortgage' in future rulemaking to ensure conformance with the final regulation on duty to serve.” 14

In December 2016, FHFA published a final rule implementing the statutory requirements for the Fannie Mae and Freddie Mac Duty to Serve underserved markets. The Duty to Serve final rule does not require the Enterprises to purchase chattel loans on manufactured housing, but the final rule does permit the Enterprises to receive Duty to Serve credit for such purchases to the extent that the Enterprises choose to pursue a pilot initiative for chattel loans on manufactured housing and any required FHFA approvals are received.15

While both Enterprises have adopted Duty to Serve plans to pursue pilot initiatives for chattel loans on manufactured housing, those plans are still in the early stages. In addition, because neither Enterprise has purchased chattel loans on manufactured housing in recent years, there is limited data available on the market for such loans or their performance. As a result, FHFA would be unable to set benchmark levels for this market segment or assess the impact of any Enterprise purchases on their housing goals performance. Due to the limited information available at this time, the final rule does not make any change to the housing goals treatment of chattel loans on manufactured housing. FHFA may propose changes in a future rulemaking based on its assessment of additional information that may become available, especially from Enterprise chattel pilot activities. If FHFA does propose a change in the definition of the term “mortgage” to include chattel loans on manufactured housing, FHFA will also need to size this market segment and appropriately adjust the benchmark levels upwards to reflect the new definition.

Blanket loans on Manufactured Housing Communities (MHCs). The housing goals regulation does not explicitly address blanket loans on MHCs, but FHFA has interpreted the regulation to exclude blanket loans on MHCs from counting toward the performance of the Enterprises under the multifamily housing goals. In the 2015-2017 Enterprise housing goals proposed rule, FHFA requested comment on whether such loans should be counted. FHFA received a number of comments at that time supporting housing goals credit for blanket loans on MHCs, but the final rule did not adopt that change due to the difficulty of accurately determining “a manufactured housing unit's affordability under the housing goals, because bedroom count information on individual manufactured housing units in the communities is not collected by the Enterprises, and the pad rent alone does not include the full cost of housing for the residents, which includes paying for their unit financing.” 16

One commenter on the July 17, 2017 proposed rule stated that blanket loans on MHCs should be included for counting toward the housing goals, arguing that it would be inconsistent to include them in the Duty to Serve regulation but not in the housing goals regulation. The commenter stated that goals eligibility should include investor-owned rental communities as well as resident-owned communities, arguing that the former are the dominant segment of the MHC segment. The commenter further argued that housing goals credit should be limited to occupied units located in the community rather than the total number of rental spaces available. Given the large volume of the segment, the commenter asserted the proposed multifamily goals should be increased to “reflect the expanded scope of the housing goals.”

Both Enterprises renewed their requests for FHFA to provide housing goals credit for blanket loans on manufactured housing communities (MHCs). Freddie Mac also suggested a different affordability standard than either of the two affordability methods defined in the Duty to Serve regulation. The Duty to Serve regulation includes two methods for estimating the number of units that could be counted as “affordable” for purposes of receiving Duty to Serve credit. For an MHC owned by a government unit or instrumentality, a nonprofit organization, or the residents, units in the MHC may be treated as affordable for Duty to Serve purposes if they are subject to affordability restrictions under laws or regulations governing the affordability of the community, or the community's or ownership entity's founding, chartering, governing, or financing documents. The Duty to Serve regulation also allows affordability for blanket loans on MHCs to be determined by estimating the affordability of units in the community based on the median income of the census tract in which the MHC is located. Freddie Mac proposed instead that FHFA determine affordability under the housing goals for blanket loans on MHCs based on an estimated “MHC Adjustment Factor” that would estimate the total housing cost for manufactured housing units based on the actual site rent plus an estimated utility allowance and an estimated additional amount to reflect the cost of the unit itself (including insurance and taxes).17

FHFA does not believe that it would be inconsistent to allow credit for blanket loans on MHCs under Duty to Serve while not allowing credit for such loans under the housing goals. The scope of activities included under the Duty to Serve regulation differs from the scope of activities covered by the housing goals. The Duty to Serve regulation addresses certain specific market segments identified by Congress in the Safety and Soundness Act, one of which is manufactured housing, and appropriately includes credit related to blanket loans on MHCs. In contrast, the housing goals are directed at the full range of Enterprise loan purchase activities and are designed to evaluate the performance of the Enterprises particularly in serving low- and very low-income borrowers and renters. While FHFA has determined not to include credit for blanket loans on MHCs in this final rule, FHFA will continue to monitor this market segment. Moreover, as discussed in more detail below, FHFA exempts blanket loans on MHCs from the annual Conservatorship Scorecard cap on multifamily mortgage purchases, to avoid discouraging the flow of capital to the MHC sector.

The final rule establishes the benchmark levels for the single-family housing goals and subgoal for 2018-2020 as follows:

The final rule establishes the levels for the multifamily goal and subgoals for 2018-2020 as follows:

The final rule makes changes and clarifications to the existing regulation, including minor technical changes to some regulatory definitions. The final rule also revises the requirements applicable to the housing plan an Enterprise may be required to submit based on a failure to achieve one or more of the housing goals.

This final rule establishes the single-family housing goals for 2018-2020. FHFA considered the required statutory factors described below in setting the benchmark levels for the single-family housing goals. FHFA's analysis and goal setting process includes developing market forecast models for each of the single-family housing goals, as well as considering a number of other variables that impact affordable homeownership. Many of these variables indicate that low-income and very low-income households are facing, and will continue to face, difficulties in achieving homeownership or in refinancing an existing mortgage. These factors, such as rising property values and stagnant household incomes, also impact the Enterprises' ability to meet their mission and facilitate affordable homeownership for low-income and very low-income households. Nevertheless, FHFA expects and encourages the Enterprises to work toward meeting their housing goal requirements in a safe and sound manner. This may include steps the Enterprises take to fulfill FHFA's expectations for supporting access to credit expressed in the Conservatorship Scorecard, which requires the Enterprises to undertake a number of research and related efforts including the development of pilots and initiatives.19

Section 1332(e)(2) of the Safety and Soundness Act requires FHFA to consider the following seven factors in setting the single-family housing goals:

1. National housing needs;

2. Economic, housing, and demographic conditions, including expected market developments;

3. The performance and effort of the Enterprises toward achieving the housing goals in previous years;

4. The ability of the Enterprises to lead the industry in making mortgage credit available;

5. Such other reliable mortgage data as may be available;

6. The size of the purchase money conventional mortgage market, or refinance conventional mortgage market, as applicable, serving each of the types of families described, relative to the size of the overall purchase money mortgage market or the overall refinance mortgage market, respectively; and

7. The need to maintain the sound financial condition of the Enterprises.20

FHFA has considered each of these seven statutory factors in setting the benchmark levels for each of the single-family housing goals and subgoal.

Recognizing that some of the factors required by statute to be considered can be readily captured using reliable data series while others cannot, FHFA implemented the following approach. FHFA's statistical market models considered factors that are captured through well-known and established data series, and these are then used to generate a point forecast for each goal, as well as a confidence interval for the point forecast. FHFA then considered the remaining statutory factors, as well as other relevant policy factors, in selecting the specific point forecast within the confidence interval as the benchmark level. FHFA's market forecast models incorporate four of the seven statutory factors: National housing needs; economic, housing, and demographic conditions; other reliable mortgage data; and the size of the purchase money conventional mortgage market or refinance conventional mortgage market for each single-family housing goal. The market forecast models generated a point estimate, as well as a confidence interval. FHFA then considered the remaining three statutory factors (historical performance and effort of the Enterprises toward achieving the housing goal; ability of the Enterprises to lead the industry in making mortgage credit available; and need to maintain the sound financial condition of the Enterprises), as well as other relevant policy factors, in selecting the specific point forecast within the confidence interval as the benchmark level for the goal period.

Market forecast models. The purpose of FHFA's market forecast models is to forecast the market share of the goal-qualifying mortgage originations in the market for the 2018-2020 period. The models are intended to generate reliable forecasts rather than to test various economic hypotheses about the housing market or to explain the relationship between variables. Following standard practice among forecasters and economists at other federal agencies, FHFA estimated a reduced-form equation for each of the housing goals and fit an Autoregressive Integrated Moving Average (or ARIMA) model to each goal share. The models look at the statistical relationship between (a) the historical market share for each single-family housing goal or subgoal, as calculated from monthly HMDA data, and (b) the historical values for various factors that may influence the market shares, e.g., interest rates, inflation, house prices, home sales, the unemployment rate, and other factors. The models then project the future value of the affordable market share using forecast values of the model inputs. FHFA developed separate models for each of the single-family housing goals and subgoal.

FHFA has employed similar models in past housing goals rulemakings to generate market forecasts. The models were developed using monthly series generated from HMDA and other data sources, and the resulting monthly forecasts were then averaged into an annual forecast for each of the three years in the goal period. The models rely on 13 years of HMDA data, from 2004 to 2016, the latest year for which HMDA data are available. Additional discussion of the market forecast models can be found in an updated research paper, available at http://www.fhfa.gov/PolicyProgramsResearch/Research/. 21

In the final rule establishing the housing goals for 2015-2017, FHFA stated that it would engage directly with commenters to obtain detailed feedback on FHFA's econometric models for the housing goals. Throughout 2016, FHFA met with industry modeling experts about potential improvements to the econometric models. Considering input received, FHFA has revised the market forecast models to include better specifications and new variables for all goal-qualifying shares, while still following generally accepted practices and standards adopted by economists, including those at other federal agencies. During the model development process, FHFA grouped factors that are expected by housing market economists to have an impact on the market share of affordable housing into seven broad categories. For each category of variables, many variables were tested but only retained when they exhibited predictive power. The new set of models includes new driver variables that reflect factors that impact the affordable housing market—for example, household debt service ratio, labor force participation rate, and underwriting standards.

As is the case with any forecasting model, the accuracy of the forecast will vary depending on the accuracy of the inputs to the model and the length of the forecast period. FHFA has attempted to minimize the first source of variability by using third party forecasts published by Moody's and other accredited mortgage market forecasters. The second source of variability is harder to address. The models underlying this final rule rely on the most up-to-date data available as of November 2017, and use forecasted input values for the rest of 2017 (depending on the data series) to produce the forecasts for 2018-2020. The confidence intervals for the benchmark levels become wider as the forecast period lengthens. In other words, it becomes more likely that the actual market levels will be different from the forecasts the farther into the future the forecasts attempt to make predictions. Predicting three years out is not the usual practice in forecasting. A number of industry forecasters, including the Mortgage Bankers Association (MBA), Fannie Mae and Freddie Mac, do not publish forecasts beyond two years because accuracy of forecasts decreases substantially beyond a two-year period.

Market outlook. There are many factors that impact the affordable housing market as a whole, and changes to any one of them may significantly impact the ability of the Enterprises to meet the goals. In developing the market models, FHFA used Moody's forecasts, where available, as the source for macroeconomic variables.22 In cases where Moody's forecasts were not available (for example, the share of government-guaranteed/insured home purchases and the share of government-guaranteed/insured refinances), FHFA generated and tested its own forecasts.23 Elements that impact the models and the determination of benchmark levels are discussed below.

Interest rates are arguably one of the most important variables in determining the trajectory of the mortgage market. The Federal Reserve launched its “interest rate normalization” process in December 2015 with a 0.25 percentage point increase. In the September 2017 meeting of the Federal Open Market Committee (FOMC), the FOMC indicated a commitment to a low federal funds rate policy for the time being. Storm-related disruptions and rebuilding, resulting from hurricanes Harvey, Irma, and Maria, are expected to affect economic activity in the near term.24 However, there is some consensus among economists that the Federal Reserve will resume rate hikes if the economic signals indicate a need for it. Mortgage interest rates—in particular the 30-year fixed rate, which is closely tied to the federal funds rate and the 10-year Treasury note yield—are expected (in Moody's forecasts) to rise gradually from the historic low of 3.4 percent in August 2016 to 4.8 percent by 2020.

The unemployment rate has fallen steadily over the last few years to 4.1 percent in November 2017.25 Moody's forecasts expect it to remain around the same levels, between 4.1 and 4.5 percent over the next three years, given the expected growth of the economy at the modest range of 2.0 to 2.4 percent per year. Per capita disposable nominal income growth is forecast by Moody's to be modest as well: From $45,500 in 2018 to $48,400 in 2020. While household incomes are increasing slowly, the inflation rate is forecast to remain flat at 1.9 to 2.3 percent throughout the period, although that depends in the near term on the recovery from the recent hurricane devastation and Federal Reserve policy in the near and medium term.

Industry analysts generally expect the overall housing market to continue its recovery, although the growth of house prices is not expected to be as large as in the last few years given the interest rate environment. As forecast by Moody's, FHFA's purchase-only House Price Index (HPI) is forecast to increase at the annual rates of 3.8, 4.8, and 2.9 percent in 2018, 2019, and 2020, respectively.

The expected increase in mortgage interest rates and house prices will likely impact the ability of low- and very low-income households to purchase homes. Housing affordability, as measured by Moody's forecast of the National Association of Realtors' (NAR) Housing Affordability Index (HAI), is expected to decline from an index value of 156.5 in 2017 to 148.3 in 2020.26

Over the past few years, low interest rates coupled with rising house prices have created an incentive for many homeowners to refinance. The refinance share has increased from 39.9 percent of overall mortgage originations in 2014 to 47.4 percent in 2016. However, assuming that interest rates are going to rise over the next few years, Moody's forecasts that the refinance rate is expected to fall as low as 27 percent during the 2018 to 2020 period.

Additional factors reflecting affordability challenges in the single-family market. While FHFA's models can address and forecast many of the statutory factors that can make affordability for single-family homeownership more challenging for low-income and very low-income households, including increasing interest rates and rising property values, some factors are not captured in the models. FHFA, therefore, considers additional factors when selecting the benchmark level within the model-generated confidence interval for each of the single-family housing goals. Some of these additional factors may affect a subset of the market rather than the market as a whole. These factors include an uneven economic recovery, stagnant wages even where unemployment is decreasing, demographic trends, and the Enterprises' share of the mortgage market. Variability in these factors can also have a substantial impact on the ability of the Enterprises to meet the housing goals. Consequently, as discussed further below, FHFA will carefully monitor these factors and consider the potential impact of market shifts or larger trends on the ability of the Enterprises to achieve the housing goals.

Throughout 2016 and 2017, the economy and the housing market continued to recover from the financial crisis, but the recovery has been uneven across the country.27 In some areas, economic growth, job gains, and demand are outpacing housing supply, sparking rapidly rising property values, while other areas of the country have not regained pre-crisis home values and are not projected to do so in the near future.

Income trends. Trends in factors such as area median income (AMI) point to a recovery in most areas in 2017. FHFA uses AMIs published by the U.S. Department of Housing and Urban Development (HUD) to determine affordability for Enterprise single-family and multifamily mortgage acquisitions. AMI is a measure of median family income derived from the Census Bureau's American Community Survey (ACS). Since the 1990s, AMIs have been used widely by HUD, state housing finance agencies, the Federal Deposit Insurance Corporation (FDIC), the U.S. Department of Treasury, and local governments across the nation to determine eligibility for various affordable housing and public assistance programs. The HUD-published AMIs are considered the standard benchmark in the affordable housing industry. HUD changed the methodology for determining AMIs in 2015 because of changes in the Census Bureau's data collection methodology and changes in the reporting schedules of the ACS data.

AMI shifts reflect changes in borrower income levels at the census tract level. In general, a decrease in an area's AMI represents a decline in housing affordability in the area because the households will have relatively less income with which to purchase a home where property values have either remained the same or increased during the same time period.28 This can make it more challenging for the Enterprises to meet the housing goals. Conversely, increases in AMIs would make it easier for the Enterprises to meet the housing goals. While there are annual fluctuations in AMI, the trends over a longer period (for instance, over two years or more) indicate that the economy is recovering, albeit in an uneven manner. Over the five-year period from 2012 to 2017, AMIs increased in approximately 80 percent of counties nationwide, indicating a geographically wide-spread recovery. However, some areas experienced AMI decreases in some years. For example, from 2015 to 2016 there were AMI decreases concentrated in South Dakota, Arizona, Pennsylvania, West Virginia, North Carolina, and the coast of South Carolina.

Overall, there are multiple trends in the single-family market that indicate that lower income households that are seeking to buy a home are likely to continue to face difficulty affording homes. While mortgage rates and home prices are projected to rise, the backdrop remains one of slow increases in average household income (as indicated by the AMI), and it is likely that the resources for lower income households seeking to buy a home will remain stretched. The current high house price appreciation, which is projected to continue even at the lower end of the house price spectrum, coupled with a limited supply of lower priced homes (largely due to the lack of construction of lower priced homes) suggests that it will be more challenging for the Enterprises to meet the single-family home purchase goals.29

Additionally, many households have experienced stagnant wages or limited wage growth even though unemployment levels have decreased significantly since the peak of the financial crisis. Data released by the U.S. Census Bureau show that while median household income increased by 3.2 percent from 2015 to 2016, it was only the second year since 2007 that median household income increased.30 Further, real median earnings were not statistically different in 2016 compared to 2015. Constrained wages, in addition to rising interest rates and increasing property values, could make it difficult for many low-income and very low-income households to achieve homeownership.

Demographic factors. Demographic changes, such as the housing patterns of millennials or the growth of minority households, also reflect challenges in the affordable homeownership market. The homeownership rate among millennials is lower than other demographic groups, but household formation will likely increase as this group ages. However, many millennials will face multiple challenges, including difficulty finding affordable homes to buy and building enough wealth for a down payment and closing costs, particularly in light of student loan and other debt burdens. Another continuing demographic trend is the growth of minority households, which is projected to be over 70 percent of net household growth through 2025.31 Because the median net worth of minority households historically has been low, building the necessary wealth to meet down payment and closing costs will likely also continue to be a challenge for many of these new households.

FHFA is committed to identifying new market conditions and challenges and working with the Enterprises to identify solutions to help meet these challenges. The effectiveness of these solutions, however, cannot be accounted for in a model.

Enterprise market share. Another factor that can affect the Enterprises' ability to support affordable homeownership for low-income and very low-income households is the Enterprises' overall share of the mortgage market, which has fluctuated over time. Graph 1 shows the distribution of conforming mortgage originations by market segment from 2011-2016. The Enterprises' share of the market was at its lowest immediately before and directly after the housing crisis in 2008, at around 45 percent. After that period, the Enterprises' share rose steadily for many years, but began to decline from a peak of 67 percent in 2013, accounting for about 53 percent of the market in 2016. Similarly, the total government share of the mortgage market remained stable for many years after the housing crisis, but expanded to 29 percent in 2015 and 28 percent in 2016, up from 25 percent in 2014.

As discussed in the proposed rule, FHFA's analysis of the mortgage insurance market indicates that a substantial share of the conforming market could switch from private mortgage insurance to FHA insurance if FHA premiums are reduced by similar magnitudes as in the past. FHFA will continue to pay close attention to any changes in the mortgage insurance market.

As discussed above, multiple factors impact the Enterprises' ability to meet their mission and support affordable homeownership through the housing finance market. Nevertheless, FHFA expects the Enterprises to continue efforts in a safe and sound manner to support affordable homeownership under the single-family housing goals categories.

The low-income home purchase goal is based on the percentage of all single-family, owner-occupied home purchase mortgages purchased by an Enterprise that are for low-income families, defined as families with incomes less than or equal to 80 percent of AMI. The final rule sets the annual low-income home purchase housing goal benchmark level for 2018-2020 at 24 percent, the same as the 2015-2017 benchmark level. FHFA has determined that, despite the various challenges to affordability highlighted above, the Enterprises will be able to take steps to maintain or increase their performance on this goal. The 24 percent benchmark level will serve as an appropriate target that will channel Enterprise efforts in this segment.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; Model CL-600-2D24 (Regional Jet Series 900) airplanes; and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on September 13, 2017 (82 FR 42955) (“the NPRM”). The NPRM was prompted by a report of rudder yoke components that had not been properly inspected at the supplier. The NPRM proposed to require replacement of the left and right rudder yoke assemblies. We are issuing this AD to prevent a cracked rudder yoke, which may affect rudder function on the affected side and could result in difficulties in maneuvering the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2017-10, dated February 27, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes; Model CL-600-2D15 (Regional Jet Series 705) airplanes; Model CL-600-2D24 (Regional Jet Series 900) airplanes; and Model CL-600-2E25 (Regional Jet Series 1000) 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-2017-0811.

We gave the public the opportunity to participate in developing this final rule. We considered the comment received. The Air Line Pilots Association, International supported the NPRM.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD 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 correcting the unsafe condition; and

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

Bombardier, Inc., has issued Service Bulletin 670BA-27-073, dated November 23, 2016. This service information describes procedures for replacement of the left and right rudder yoke assemblies. 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 48 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

We determined that this 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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2014-0248, dated November 19, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-202, -203, -223, and -243 airplanes. The MCAI states:

You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0076.

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

Since there are currently no domestic operators of this product, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason(s) stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0076; Product Identifier 2013-NM-227-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

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

Currently, there are no affected U.S.-registered airplanes. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition, and doing the actions specified in those instructions. Based on the actions specified in the MCAI AD, we are providing the following cost estimates for an affected airplane that is placed on the U.S. Register in the future:

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 to the Director of the System Oversight Division.

We determined that 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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2013-0291, dated December 9, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-300 series airplanes. The MCAI states:

You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0075.

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

Since there are currently no domestic operators of this product, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason(s) stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0075; Product Identifier 2013-NM-251-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD based on those comments.

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

Currently, there are no affected U.S.-registered airplanes. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition, and doing the actions specified in those instructions. Based on the actions specified in the MCAI AD, we are providing the following cost estimates for an affected airplane that is placed on the U.S. Register in the future:

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 to the Director of the System Oversight Division.

We determined that 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:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A318 series airplanes; Model A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The NPRM published in the Federal Register on July 25, 2017 (82 FR 34449) (“the NPRM”). The NPRM was prompted by reports of fatigue damage in the structure for the door stop fittings on certain fuselage frames. The NPRM proposed to require repetitive rototest inspections for cracking of the fastener holes in certain door stop fittings, and repair if necessary. We are issuing this AD to detect and correct cracking at the door stop fitting holes of fuselage FR66 and FR68. Such cracking could result in reduced structural integrity of the airplane due to the failure of structural components.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0238, dated December 2, 2016; corrected January 4, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318 series airplanes; Model A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0707.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

United Airlines (UAL) requested that we revise paragraph (h) of the proposed AD to allow a 60-day grace period after the effective date of this AD to give operators time to update their maintenance programs. UAL noted that for airplanes on which inspections were previously accomplished as specified in airworthiness limitation item (ALI) task 534129 or 534130, paragraph (h) of the proposed AD requires future inspections be done in accordance with Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016. UAL noted that operators who are not yet incorporating Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, may have to schedule special inspection visits instead of doing the inspections during scheduled maintenance.

We agree with the commenter's request to add a grace period to paragraph (h) of this AD to allow operators to plan for the new inspection interval. However, since the commenter did not provide adequate justification to support a 60-day grace period, we have determined that a 30-day grace period is appropriate. Additionally, under the provisions of paragraph (q)(1) of this AD, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. We have revised paragraph (h) of this AD to include a 30-day grace period.

UAL requested that either the service information or the proposed AD be revised to provide alternate instructions for airplanes with modified hardware. UAL noted that “paragraph (i)” of the proposed AD requires repetitive inspections on airplanes modified by cold working fastener holes, which includes installing oversize hardware. UAL pointed out that the inspections must be done in accordance with Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, which requires using nominal size hardware that no longer exists on modified airplanes.

We infer that the commenter meant to refer to paragraph (j) of the proposed AD, which discusses post-modification inspections, rather than paragraph (i) of the proposed AD, which discusses an optional modification. We agree with the commenter's request. We acknowledge that Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, does not specifically address oversize hardware; however, EASA has stated that “the same inspection principle applies for post SB [Service Bulletin] 53-1290 configuration.” Therefore, we have retained Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, in paragraph (j) of this AD. We have also revised paragraph (j) of this AD to include an option for operators to obtain inspection instructions using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA).

UAL requested that we remove the statement “repair of an airplane as required by this paragraph does not constitute terminating action for the repetitive inspections required by paragraph (g) or (j) of this AD for that repair, unless specified otherwise” from paragraph (k) of the proposed AD. UAL suggested that statement be replaced with one instructing operators to accomplish inspections as specified in the repair instructions.

UAL noted that paragraph (k) of the proposed AD states that a crack repair must be done using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA DOA and says that such a repair does not constitute terminating action for the repetitive inspections done in accordance with Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, unless specified otherwise.

UAL pointed out that Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, contains language to allow operators to accomplish crack repairs in accordance with structural repair manual (SRM) 53-41-12, and then perform inspections of the repaired area in accordance with SRM 53-41-12. UAL noted that the SRM repair instructions do not state that they terminate the inspections in Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016. UAL further noted that Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, only applies to unrepaired areas with nominal size holes (the repaired areas would have oversized holes).

We disagree with the commenter's request. We acknowledge that Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, allows repairs to be done using an SRM. However, this AD does not include that allowance since SRMs published before the effective date of this AD might not address the unsafe condition identified in this AD. Therefore, paragraph (k) of this AD requires repairs to be done using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA DOA.

Additionally, the statement that the commenter requested us to remove from paragraph (k) of this proposed AD aligns with the MCAI. The statement is meant to clarify that doing a repair does not necessarily terminate the repetitive inspections; the repetitive inspections would only be terminated if the repair approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA DOA specifically states that the inspections are terminated. If the approved repair does not state that the inspections are terminated, operators must continue to inspect using Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016, or using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA DOA. Therefore, we have not changed the requirements in paragraph (k) of this AD nor have we removed the statement identified by the commenter. However, we have revised paragraph (g) of this AD to include an option for operators to obtain inspection instructions using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA DOA.

UAL requested that we remove paragraph (l)(2) of the proposed AD because it has no real purpose. UAL noted that paragraph (l)(2) of the proposed AD requires operators to obtain inspection instructions and corrective actions for all repaired fastener holes by contacting the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA DOA. UAL claimed that if a repair was accomplished using the instructions in an SRM or repair design approval sheet (RDAS), the repair approval contains, at a minimum, the initial compliance threshold. UAL added that it is standard practice for operators to contact Airbus prior to the inspection threshold if the compliance method and intervals are not yet defined.

We disagree with the commenter's request. Airbus intends to provide specific instructions for airplanes inspected in accordance with ALI task 534129 or task 534130 and repaired in accordance with an SRM or RDAS published before the effective date of this AD. Since repair instructions published before the effective date of this AD might not address the unsafe condition identified in this AD, the SRM or RDAS instructions might need to be re-evaluated or revised to address the unsafe condition. In addition, we do not rely on an operator's standard practices, and instead require operators to obtain inspections and corrective actions to address the unsafe condition. We have not revised this AD regarding this issue.

UAL requested that we delete paragraph (n) of the proposed AD. UAL noted that paragraph (n) of the proposed AD requires operators to determine if a repair was done using an RDAS that is unrelated to ALI task 534129 or task 534130. UAL suggested that the repair instructions would have to state that the damage was found as a result of the applicable ALI, but noted that the ALI task is an inspection that may not be referenced in a documented repair. UAL questioned the relevance of whether or not a repair was related to ALI task 534129 or task 534130, noting that the same considerations are given to repair instructions, regardless of how damage was found. UAL stated that operators would know to seek an alternative method of compliance (AMOC) if they cannot inspect a previously repaired area in accordance with Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016.

We disagree with the commenter's request. The intent of paragraph (n) of the proposed AD is to require operators to re-evaluate existing repairs performed using an Airbus RDAS unrelated to ALI task 534129 or task 534130 because those repairs may not address the findings from the specific inspection types required by the ALI tasks. Therefore, the corresponding repairs might not address the unsafe condition and operators might need new instructions. We have not changed this AD in this regard.

UAL requested that, prior to the release of this final rule, we verify that we are referencing the latest revisions of Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016; and Airbus Service Bulletin A320-53-1290, Revision 01, dated October 3, 2016.

We agree with the commenter's request. We have verified that no later revisions of the service information have been issued, and no change is needed to this AD.

In the proposed AD, Table 1 to paragraphs (g) and (j) of this AD and Table 2 to paragraphs (g) and (j) of this AD included a compliance time that stated “. . . or before November 30, 2017. . . .” Since this final rule will become effective after November 30, 2017, we have changed this statement to read “. . . or within 30 days after the effective date of this AD. . . .” We have determined that this revised compliance time addresses the unsafe condition.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

Airbus has issued the following service information.

• Airbus Service Bulletin A320-53-1288, Revision 01, including Appendixes 01, 02, and 03, dated October 3, 2016. This service information describes procedures for rototest inspections for cracking of the fastener holes in the airframe structure for the door stop fittings installation in FR66 and FR68.

• Airbus Service Bulletin A320-53-1290, Revision 01, dated October 3, 2016. This service information describes procedures for cold working the fastener holes in the airframe structure for the door stop fittings installation in FR66 and FR68.

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 1,084 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary repairs that would be required based on the results of the required inspection. We have no way of determining the number of aircraft that might need this repair.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 757-300 series airplanes. The NPRM published in the Federal Register on September 29, 2017 (82 FR 45526). The NPRM was prompted by reports of scribe line damage on fuselage skin, caused by sharp tools used during fuselage maintenance. The NPRM proposed to require detailed inspections of fuselage skin for the presence of scribe lines, and applicable on-condition actions.

We are issuing this AD to detect and correct scribe line damage. Failure to detect and completely remove scribe lines may lead to fatigue cracking, rapid decompression, and inability of the principal structural element to sustain limit load.

We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

The Boeing Company and United Airlines supported the NPRM.

Delta Air Lines (Delta) asserted that any FAA-approved repair installed after the original issue date of Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017, would not have the scribe line issue because operators are using the approved sealant removal tools and instructions specified in the Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017, which would prevent the occurrence of scribe line damage. Delta requested that a paragraph be added to the proposed AD specifying that such a repair would be exempt from the requirements of the proposed AD.

We agree with the commenter's request because the Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017, provides an exception to inspection requirements for external and internal approved repairs that are installed under certain conditions, including the use and recording of the correct sealant removal procedure. An FAA-approved repair that is installed under the same conditions would also be provided the same exception to the inspection requirements. We have added paragraph (h)(3) to this AD to specify that, for the purposes of determining compliance with the requirements of this AD, the phrase “FAA-approved repair” may be substituted for “approved repair”, as specified in Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017.

Aviation Partners Boeing stated that accomplishing the Supplemental Type Certificate (STC) ST01518SE does not affect the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) and added paragraph (c)(2) to this AD to state that installation of STC ST01518SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01518SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:

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

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

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

We reviewed Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017. The service information describes procedures for detecting and correcting scribe line damage on fuselage skin. 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 37 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

Arkansas submitted a SIP revision on September 9, 2008, to address the first regional haze implementation period. On August 3, 2010, Arkansas submitted a SIP revision with non-substantive revisions to the Arkansas Pollution Control and Ecology Commission (APCEC) Regulation 19, Chapter 15; this Chapter identified the BART-eligible and subject-to-BART sources in Arkansas and established the BART emission limits for subject-to-BART sources. On September 27, 2011, the State submitted supplemental information to address the regional haze requirements. We are hereafter referring to these regional haze submittals collectively as the “2008 Arkansas Regional Haze SIP.” On March 12, 2012, we partially approved and partially disapproved the 2008 Arkansas Regional Haze SIP.1 On September 27, 2016, we published a FIP (the Arkansas Regional Haze FIP) addressing the disapproved portions of the 2008 Arkansas Regional Haze SIP.2 Among other things, the FIP established NOX emission limits under the BART requirements for Bailey Unit 1; McClellan Unit 1; Flint Creek Boiler No. 1; Lake Catherine Unit 4; and White Bluff Units 1 and 2 and the Auxiliary Boiler. The FIP also established NOX emission limits under the reasonable progress requirements for Independence Units 1 and 2.

In response to petitions submitted by the State of Arkansas and industry parties seeking reconsideration and an administrative stay of the final Arkansas Regional Haze FIP,3 in a letter dated April 14, 2017, we announced the convening of a proceeding to reconsider several elements of the FIP, including the appropriate compliance dates for the NOX emission limits for Flint Creek Unit 1, White Bluff Units 1 and 2, and Independence Units 1 and 2.4 EPA also published a document in the Federal Register on April 25, 2017, administratively staying the effectiveness of the 18-month NOX compliance dates in the FIP for these units for a period of 90 days.5 On July 13, 2017, the EPA published a proposed rule that would extend the FIP's NOX compliance dates for Flint Creek Unit 1, White Bluff Units 1 and 2, and Independence Units 1 and 2, by 21 months to January 27, 2020.6 7

On July 12, 2017, Arkansas submitted a proposed SIP revision with a request for parallel processing, addressing the NOX requirements for Bailey Unit 1, McClellan Unit 1, Flint Creek Boiler No. 1, Lake Catherine Unit 4, White Bluff Units 1 and 2 and the Auxiliary Boiler, and Independence Units 1 and 2 (Arkansas Regional Haze NOX SIP revision or Arkansas NOX SIP revision). Arkansas' proposed July 2017 Regional Haze NOX SIP revision addressed the NOX BART requirements for Arkansas' EGUs by relying on participation in the Cross State Air Pollution Rule (CSAPR) ozone season NOX trading program as an alternative to BART. The July 2017 Regional Haze NOX SIP revision proposal also made the determination that no additional NOX emission controls for Arkansas sources, beyond participation in CSAPR's ozone season NOX trading program, are required for achieving reasonable progress in Arkansas. The July 2017 Regional Haze SIP revision addresses NOX requirements for the same EGUs for which we established source-specific NOX emission limits in the September 27, 2016 FIP. In a document published in the Federal Register on September 11, 2017, we proposed to approve the Arkansas Regional Haze NOX SIP revision and proposed to withdraw corresponding parts of the FIP.8 On October 31, 2017, we received ADEQ's final NOX SIP revision addressing BART and reasonable progress requirements for NOX for EGUs in Arkansas for the first implementation period. In a final action being published separately in this Federal Register, we are taking final action to approve the Arkansas Regional Haze NOX SIP revision.

The background for this final rule and the separate action also being published in this Federal Register that approves the Arkansas Regional Haze NOX SIP revision is also discussed in detail in our September 11, 2017 proposal.9 The comment period was open for 30 days, and we received comments from three commenters in response to our proposed action.

We are withdrawing those portions of the Arkansas Regional Haze FIP at 40 CFR 52.173 that impose NOX requirements on Bailey Unit 1; McClellan Unit 1; Flint Creek Boiler No. 1; Lake Catherine Unit 4; White Bluff Units 1 and 2 and the Auxiliary Boiler; and Independence Units 1 and 2. Therefore, as of the effective date of this final rule, the Arkansas Regional Haze FIP NOX requirements will no longer apply to the nine aforementioned units. All other provisions of the Arkansas Regional Haze FIP are unaffected by this action and remain in place.

As explained in our September 11, 2017 proposal,10 this action is made possible because of our separate action being published in this Federal Register to approve the Arkansas Regional Haze NOX SIP revision submitted to us on July 12, 2017, with a request for parallel processing. On October 31, 2017, we received ADEQ's final SIP revision addressing NOX BART for EGUs in Arkansas and the reasonable progress requirements for NOX for the first implementation period. The final Arkansas Regional Haze NOX SIP revision we received on October 31, 2017, did not contain significant changes from the state's proposed SIP revision. Therefore, it is appropriate for us to take final action, as proposed, on the final SIP revision.

EPA has made the determination that the Arkansas Regional Haze NOx SIP revision is approvable because the plan's provisions meet all applicable requirements of the CAA and EPA implementing regulations. EPA is finalizing this action under section 110 and part C of the Act.

We received a total of three comment letters concerning our proposed action. The issues raised in those comment letters are summarized, along with our response to each, in the separate document being published in this Federal Register that approves the Arkansas Regional Haze NOX SIP revision. Copies of the comments are available in the docket for this rulemaking.11

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This final rule revises a FIP to withdraw source-specific NOX emission limits for only six facilities in Arkansas and is therefore not a rule of general applicability.

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the provisions of the PRA. Burden is defined at 5 CFR 1320.3(b). This final rule revises a FIP to withdraw source-specific NOX emission limits for six facilities in Arkansas.

I certify that this final action will not have a significant economic impact on a substantial number of small entities under the RFA. This final action will not impose any requirements on small entities. This final action revises a FIP to withdraw source-specific NOX emission limits that apply to six power plants in Arkansas.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It 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.

This action does not have tribal implications, as specified in Executive Order 13175, because this partial FIP withdrawal does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. This final action revises a FIP to withdraw source-specific NOX emission limits that apply to six power plants in Arkansas. There are no Indian reservation lands in Arkansas. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potentially disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d), as it revises a FIP under CAA section 110(c).

This rule is exempt from the CRA because it is a rule of particular applicably. EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability that only affects six facilities in Arkansas.

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 April 13, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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)).

Title 40, chapter I, of the Code of Federal Regulations is amended as follows:

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

On November 17, 2017 (82 FR 54309), the EPA proposed to approve the following documents into the California SIP.

Specifically, the EPA proposed to partially conditionally approve MDAQMD's 2006 and 2015 RACT SIPs with respect to Rule 461, Gasoline Transfer and Dispensing; Rule 462, Organic Liquid Loading; Rule 463, Storage of Organic Liquids; Rule 1104, Organic Solvent Degreasing; Rule 1114, Wood Products Coating Operations; Rule 1115, Metal Parts and Product Coating Operations; Rule 1157, Boilers and Process Heaters; Rule 1160, Internal Combustion Engines; Rule 1161, Portland Cement Kilns; and Rule 1162, Polyester Resin Operations. Simultaneously, the EPA proposed to partially approve the remainder of MDAQMD's 2006 and 2015 RACT SIPs, and to fully approve MDAQMD's negative declarations, submitted on September 9, 2015.1

We proposed to approve and conditionally approve these submittals because we determined that they mostly complied with the relevant CAA requirements, and where deficiencies were identified, the District issued a commitment to address these deficiencies pursuant to 42 U.S.C. 7410(k)(4). Our proposed action contains more information on the submittals and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received four anonymous comments. Commenters generally raised issues that are outside of the scope of this rulemaking, including forest management, wildfire suppression, greenhouse-gas and other non-ozone-precursor emissions from wildfires, and the Cross-State Air Pollution Rule. While some commenters suggested that ozone precursor emissions from wildfires should be regulated, wildfires do not fall within a category for which a RACT submission is required under section 182(b)(2) of the Act, and thus fall outside the scope of the present rulemaking. The EPA is required to approve a state submittal if the submittal meets all applicable requirements. 42 U.S.C. 7410(k)(3). Commenters did not raise any specific issues germane to the approvability of the MDAQMD RACT SIPs and negative declarations.

No comments were submitted that change our assessment of the SIP submittals as described in our proposed action. Therefore, as authorized in section 110(k)(3) and (4) of the Act, the EPA is conditionally approving MDAQMD's 2006 and 2015 RACT SIPs with respect to Rule 461, Gasoline Transfer and Dispensing; Rule 462, Organic Liquid Loading; Rule 463, Storage of Organic Liquids; Rule 1104, Organic Solvent Degreasing; Rule 1114, Wood Products Coating Operations; Rule 1115, Metal Parts and Product Coating Operations; Rule 1157, Boilers and Process Heaters; Rule 1160, Internal Combustion Engines; Rule 1161, Portland Cement Kilns; and Rule 1162, Polyester Resin Operations, and fully approving the remainder of MDAQMD's 2006 and 2015 RACT SIPs. The EPA is also fully approving MDAQMD's negative declarations, submitted on September 9, 2015.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 13, 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).)

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

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

On October 10, 2017 (82 FR 46951) we proposed to determine that certain amendments to the South Coast Air Quality Management District's (SCAQMD or “District”) Regional Clean Air Incentives Program (RECLAIM) submitted by California corrected the deficiency in the RACM/RACT and RFP elements of the Moderate area plan for the 2006 PM2.5 NAAQS in the Los Angeles—South Coast nonattainment area (“2012 PM2.5 Plan” or “plan”) that was the basis for the EPA's prior partial disapproval of this plan. On this basis, we proposed to approve the RACM/RACT and RFP elements of the 2012 PM2.5 Plan, as revised. The 2012 PM2.5 Plan contained the State's and District's demonstration that attainment of the 2006 PM2.5 NAAQS in the South Coast area by the December 31, 2015 Moderate area attainment date was impracticable.

Simultaneously, we published an interim final determination to defer sanctions based on our proposed finding that the SCAQMD's amendments to RECLAIM corrected the deficiency in the RACM/RACT and RFP elements of the 2012 PM2.5 Plan that formed the basis for our prior partial disapproval of this plan (82 FR 46917).

The EPA's proposed action provided a 30-day public comment period, which ended on November 9, 2017. During this period, we received one comment letter from Earthjustice on behalf of the Sierra Club and several anonymous comments. We summarize these comments and provide our responses below.

Comment #1: Earthjustice claims that a cap-and-trade program such as RECLAIM cannot provide the basis for compliance with the Clean Air Act (CAA or “Act”) section 182 RACT requirement or the RACM requirement, based on the plain language of the CAA that, according to Earthjustice, requires all major sources to implement RACT. In support of this contention, Earthjustice highlights the word “all” in CAA section 182(b)(2) in connection with implementation of RACT at major sources and claims that the legislative history for the CAA Amendments of 1990 makes clear that the RACT requirement applies to all major sources of NOX in an ozone nonattainment area. Earthjustice also cites, without explanation, the RACM requirement for Moderate PM2.5 nonattainment areas in CAA section 189(a)(1)(C) and the Best Available Control Measures (BACM) requirement for Serious PM2.5 nonattainment areas in 40 CFR 51.1010.

Earthjustice asserts that the EPA's longstanding definition of RACT supports an interpretation of the RACT requirement as applicable to each and every major NOX source, not a collective emission limitation for an entire class of sources located across a nonattainment area or an entire state or region. Earthjustice claims that reliance on an emissions trading program to meet the RACT requirement for major NOX sources is tantamount to creating a NOX exemption that is inconsistent with the explicit NOX exemptions found at CAA section 182(f). Lastly, Earthjustice cites an EPA proposed rule dated November 3, 2016 to support its claim that emissions averaging in the South Coast does not actually provide RACT-level reductions.

Response #1: Earthjustice submitted substantively identical comments on a separate proposed rule published June 15, 2017, in which the EPA proposed to determine that the revised RECLAIM regulations satisfy CAA RACT requirements for purposes of the ozone NAAQS in the South Coast ozone nonattainment area (82 FR 27451).1 We responded to these comments in our September 20, 2017 final rule approving California's RACT state implementation plan (SIP) submission for the South Coast area (82 FR 43850) and incorporate that response here (see 82 FR at 43853-54). Because Earthjustice has not explained how its comments pertain to the specific RACM requirement in CAA section 189(a)(1)(C) or the BACM requirement in 40 CFR 51.1010 for purposes of the PM2.5 NAAQS, we provide no further response on this issue.

Comment #2: Earthjustice contends that approval of California's RACT determination would be arbitrary and capricious because the RECLAIM rules, as amended in 2015, do not achieve aggregate emissions reductions of NOX equivalent to those that would be achieved through implementation of RACT level control at each major NOX source in the South Coast. Earthjustice claims that the record here shows that the additional 12 ton per day (tpd) reduction adopted by the SCAQMD as part of the 2015 RECLAIM amendments does not result in RACT/RACM level controls for NOX RECLAIM facilities.

Response #2: Earthjustice submitted substantively identical comments on a separate proposed rule published June 15, 2017, in which the EPA proposed to determine that the revised RECLAIM regulations satisfy CAA RACT requirements for purposes of the ozone NAAQS in the South Coast ozone nonattainment area (82 FR 27451). We responded to these comments in our September 20, 2017 final rule approving California's RACT SIP submission for the ozone NAAQS for the South Coast area (82 FR 43850) and incorporate that response here (see 82 FR at 43854-55).

Comment #3: Earthjustice asserts that the EPA's approval of the RACM/RACT and RFP elements of the 2012 PM2.5 Plan would interfere with attainment of the PM2.5 NAAQS by 2019. Earthjustice claims that the EPA failed to address how an additional 12 tpd reduction in the NOX RECLAIM emissions cap on a “back-loaded” schedule complies with the District's determination that the reductions are necessary for PM2.5 attainment by 2019 or as expeditiously as practicable. It also claims that the record shows that failure to apply the front-loaded emission reduction schedule developed by SCAQMD staff will interfere with expeditious attainment of the 2006 PM2.5 NAAQS. Earthjustice also references a program environmental assessment (PEA) completed pursuant to California state law, which listed as a project objective the need to bring the NOX RECLAIM program up to date with best available retrofit control technology (BARCT) requirements for existing sources under California law, and asserts that the final PEA identified a need to implement additional control measures to attain both the PM2.5 and ozone NAAQS in the South Coast air basin.

Response #3: These comments are not germane to this action. Earthjustice suggests that SCAQMD should require reductions from RECLAIM sources on a faster schedule for purposes of attaining the 2006 PM2.5 NAAQS by the applicable attainment date for a Serious nonattainment area, i.e., in this case an area that must attain the 2006 PM2.5 NAAQS as expeditiously as practicable but no later than the end of 2019. In this action, however, we are not assessing whether the revised RECLAIM program meets Serious area nonattainment plan requirements such as the BACM/BACT control requirement or, as relevant here, assessing whether the schedule for those reductions is consistent with the requirement to attain the 2006 PM2.5 NAAQS as expeditiously as practicable but no later than 2019. This action addresses only a deficiency that the EPA previously identified in the Moderate area plan for the South Coast area.

The 2012 PM2.5 Plan contained a demonstration under CAA section 189(a)(1)(B)(ii) that attainment of the 2006 PM2.5 standards in the South Coast area by the Moderate area attainment date of December 31, 2015, was impracticable.2 We partially approved and partially disapproved the 2012 PM2.5 Plan based on a deficiency in its RACM/RACT and RFP elements, both of which relied on the RECLAIM program as amended in 2010.3 Following the State's submission of RECLAIM rule amendments adopted in 2015 and a demonstration that the amended program satisfies NOX RACT requirements for covered sources,4 we proposed to determine that the State had corrected the deficiency in the RACM/RACT and RFP elements of the 2012 PM2.5 Plan and to approve these elements of the Plan, as revised (82 FR 46951, October 10, 2017). These SIP revisions corrected a deficiency in an impracticability demonstration, which did not purport to show attainment by 2019. Comments pertaining to the level of control necessary for the South Coast area to attain the PM2.5 NAAQS as expeditiously as practicable and no later than the applicable statutory attainment date should be raised in the context of EPA's evaluation of a demonstration of attainment under CAA section 189(a)(1)(B)(i) or section 189(b)(1)(A)(i), not in the context of a demonstration that attainment by the outermost Moderate area attainment date is impracticable under CAA section 189(a)(1)(B)(ii).

Our reclassification of the South Coast area from Moderate to Serious for the 2006 PM2.5 NAAQS in October 2015 triggered a requirement for California to submit a Serious area plan that provides for attainment of the 2006 PM2.5 NAAQS in the South Coast as expeditiously as practicable but no later than December 31, 2019, in accordance with the requirements of part D of title I of the Act.5 The California Air Resources Board submitted a Serious area plan for the 2006 PM2.5 NAAQS in the South Coast on April 27, 2017.6 We will evaluate the adequacy of the State's and District's control strategy for purposes of timely attainment when we act on this plan submission.

Comment #4: Earthjustice objects to the District's general approach to distinguishing between BARCT and RACT-level control and argues that the District has used an artificially narrow articulation of RACT to evaluate only controls required under adopted regulations, instead of considering technologies that have been applied in practice.

Response #4: Earthjustice submitted identical comments on a separate proposed rule published June 15, 2017, in which the EPA proposed to determine that the revised RECLAIM regulations satisfy CAA RACT requirements for purposes of the ozone NAAQS in the South Coast ozone nonattainment area (82 FR 27451). We responded to these comments in our September 20, 2017 final rule approving California's ozone RACT SIP for the South Coast area (82 FR 43850) and incorporate that response here (see 82 FR at 43855-56).

Comment #5: Earthjustice asserts that the revised RECLAIM program does not properly address RECLAIM trading credits from facilities that shut down prior to 2016 and argues that the availability of such credits has allowed major sources, particularly refineries, to avoid installation of selective catalytic reduction and other readily available NOX pollution controls. Earthjustice identifies California Portland Cement as a retired facility whose credits have significantly contributed to this problem.

Response #5: Earthjustice submitted substantively identical comments on a separate proposed rule published June 6, 2017, in which the EPA proposed to approve the amended RECLAIM rules into the SIP (82 FR 25996), and a proposed rule published June 15, 2017, in which the EPA proposed to determine that the amended RECLAIM rules satisfy CAA RACT requirements for purposes of the ozone NAAQS in the South Coast ozone nonattainment area (82 FR 27451). We responded to these comments in both our September 14, 2017 final rule approving the amended RECLAIM rules (82 FR 43176) and our September 20, 2017 final rule approving California's ozone RACT SIP for the South Coast area (82 FR 43850) and incorporate those responses here (see 82 FR at 43178 and 82 FR at 43855).

Comment #6: Citing CAA section 110(a)(2)(E), Earthjustice asserts that the EPA can approve a SIP revision only if it determines that the provision is not inconsistent with state law and argues that “the current proposal violates California law because it is not equivalent to BARCT” and does not achieve command-and-control equivalence as mandated by California's Health and Safety Code. Earthjustice claims that the EPA therefore cannot make the determination required in section 110 of the Act that the approval not interfere with compliance with state law.

Response #6: Earthjustice submitted substantively identical comments on a separate proposed rule published June 6, 2017, in which the EPA proposed to approve the amended RECLAIM rules into the SIP (82 FR 25996), and a proposed rule published June 15, 2017, in which the EPA proposed to determine that the amended RECLAIM rules satisfy CAA RACT requirements for purposes of the ozone NAAQS in the South Coast ozone nonattainment area (82 FR 27451). We responded to these comments in both our September 14, 2017 final rule approving the amended RECLAIM rules (82 FR 43176) and our September 20, 2017 final rule approving California's ozone RACT SIP for the South Coast area (82 FR 43850) and incorporate those responses here (see 82 FR at 43178-79 and 82 FR at 43856).

Comment #7: Earthjustice claims that the EPA cannot approve the District's RACM determination because the District failed to comply with state notice requirements in adopting the 2015 NOX RECLAIM program amendments. Earthjustice cites a recent decision of the California Superior Court for Los Angeles County (“state court”) remanding the December 2015 NOX RECLAIM program amendments on the basis that the District failed to comply with California Health and Safety Code procedural requirements in adopting the amendments. Earthjustice asserts that “[b]ecause a California court has found the [SCAQMD] violated state law in adopting the RECLAIM amendments, it would be arbitrary and capricious for EPA to approve this determination because it violates the Clean Air Act provisions in 42 U.S.C. [section] 7410.”

Response #7: We disagree with the commenter's claim that the referenced state court decision precludes EPA approval of the RACM/RACT and RFP elements of the 2012 PM2.5 Plan. By order dated November 6, 2017, the California Superior Court for the County of Los Angeles remanded the SCAQMD Board's December 4, 2015 amendments to the RECLAIM program based on the court's finding that the District violated state procedural requirements in adopting the amendments.7 The court did not, however, vacate the amendments to the program or find any substantive flaw in the amended program.8 On November 16, 2017, counsel for the SCAQMD confirmed that the RECLAIM program, as amended December 4, 2015, remains in effect and that the District plans to implement the amended program while considering its options for how to respond to the remand.9 By email dated January 10, 2018, counsel for the SCAQMD informed the EPA that the SCAQMD Governing Board had authorized the District to file an appeal of the state court decision and that this action would not affect the ongoing implementation of the December 2015 RECLAIM amendments.10 If this appeal is denied (or is otherwise unsuccessful) and the District either adopts further revisions to the RECLAIM program or determines that the amended program is deficient in some respect, we will reconsider today's action or take appropriate remedial action to ensure that the RACM/RACT and RFP elements of the 2012 PM2.5 Plan satisfy CAA requirements.

We note that we approved the amended RECLAIM rules into the SIP in a previous rulemaking action (82 FR 43176, September 14, 2017) in which we determined, inter alia, that the SIP submission containing the amended rules satisfied the applicable CAA requirements for SIP revisions, including the procedural requirements in CAA section 110(a) and 40 CFR part 51, Appendix V.11 To the extent the commenter intended to argue that a procedural flaw in the District's adoption of the amended RECLAIM rules precludes the EPA's approval of those rules into the SIP under CAA section 110, such arguments should have been raised in comments on this prior rulemaking.

Other comments: We received several anonymous comments stating, inter alia, that emissions of greenhouse gases (GHGs) and other pollutants from California wildfires contribute to climate change and regional and global air pollution including smog, particulate matter, and toxics; that California should pay a carbon tax on GHG emissions from wildfires; that oil and gas regulations should be rescinded; and that the CAA must be enforced to preserve air quality and quality of life.

Response: These comments fail to identify any specific issue that is germane to our action on the 2012 PM2.5 Plan.

The EPA is finalizing approval of the following elements of the 2012 PM2.5 Plan under CAA section 110(k)(3):

• The RACM/RACT element as meeting the requirements of CAA sections 172(c)(1) and 189(a)(1)(C); and

• the RFP element as meeting the requirements of CAA section 172(c)(2).

As a result of this approval, the offset sanction in CAA section 179(b)(2), which would have applied in the South Coast PM2.5 nonattainment area 18 months after the effective date of our partial disapproval of the 2012 PM2.5 Plan dated April 14, 2016, and the highway funding sanction in CAA section 179(b)(1), which would have applied in the area six months after the offset sanction is imposed, are permanently terminated. Additionally, this approval action removes the obligation on the EPA to promulgate a federal implementation plan because California has corrected the deficiencies and the EPA has approved the related plan revisions.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 13, 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).)

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

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

Regional haze is visibility impairment that is produced by a multitude of sources and activities that are located across a broad geographic area and emit fine particulates (PM2.5) (e.g., sulfates, nitrates, organic carbon (OC), elemental carbon (EC), and soil dust), and their precursors (e.g., sulfur dioxide (SO2), nitrogen oxides (NOX), and in some cases, ammonia (NH3) and volatile organic compounds (VOCs)). Fine particle precursors react in the atmosphere to form PM2.5, which impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color, and visible distance that can be seen. PM2.5 can also cause serious adverse health effects and mortality in humans; it also contributes to environmental effects such as acid deposition and eutrophication.

Data from the existing visibility monitoring network, “Interagency Monitoring of Protected Visual Environments” (IMPROVE), shows that visibility impairment caused by air pollution occurs virtually all of the time at most national parks and wilderness areas. In 1999, the average visual range 1 in many Class I areas (i.e., national parks and memorial parks, wilderness areas, and international parks meeting certain size criteria) in the western United States was 100-150 kilometers, or about one-half to two-thirds of the visual range that would exist under estimated natural conditions.2 In most of the eastern Class I areas of the United States, the average visual range was less than 30 kilometers, or about one-fifth of the visual range that would exist under estimated natural conditions. CAA programs have reduced emissions of some haze-causing pollution, lessening some visibility impairment and resulting in partially improved average visual ranges.3

CAA requirements to address the problem of visibility impairment continue to be implemented. In Section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the remedying of any existing, man-made impairment of visibility in 156 national parks and wilderness areas designated as mandatory Class I Federal areas.4 Congress added section 169B to the CAA in 1990 to address regional haze issues, and the EPA promulgated regulations addressing regional haze in 1999. The Regional Haze Rule 5 revised the existing visibility regulations to add provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300-51.309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands. States were required to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.6

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often under-controlled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress toward the natural visibility goal, including a requirement that certain categories of existing major stationary sources 7 built between 1962 and 1977 procure, install and operate BART controls. Larger “fossil-fuel fired steam electric plants” are one of these source categories. Under the Regional Haze Rule, states are directed to conduct BART determinations for “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. The evaluation of BART for electric generating units (EGUs) that are located at fossil-fuel fired power plants having a generating capacity in excess of 750 megawatts must follow the “Guidelines for BART Determinations Under the Regional Haze Rule” at appendix Y to 40 CFR part 51 (hereinafter referred to as the “BART Guidelines”). Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides for greater progress towards improving visibility than BART.

Arkansas submitted a SIP revision on September 9, 2008, to address the requirements of the first regional haze implementation period. On August 3, 2010, Arkansas submitted a SIP revision with non-substantive revisions to the Arkansas Pollution Control and Ecology Commission (APCEC) Regulation 19, Chapter 15; this Chapter identified the BART-eligible and subject-to-BART sources in Arkansas and established BART emission limits for subject-to-BART sources. On September 27, 2011, the State submitted supplemental information to address the regional haze requirements. We are hereafter referring to these regional haze submittals collectively as the “2008 Arkansas Regional Haze SIP.” On March 12, 2012, we partially approved and partially disapproved the 2008 Arkansas Regional Haze SIP.8 On September 27, 2016, we published a FIP addressing the disapproved portions of the 2008 Arkansas Regional Haze SIP (the Arkansas Regional Haze FIP).9 Among other things, the FIP established NOX emission limits under the BART requirements for Bailey Unit 1; McClellan Unit 1; Flint Creek Boiler No. 1; Lake Catherine Unit 4; and White Bluff Units 1 and 2 and the Auxiliary Boiler. The FIP also established NOX emission limits under the reasonable progress requirements for Independence Units 1 and 2.

Following the issuance of the Arkansas Regional Haze FIP, the State of Arkansas and several industry parties filed petitions for reconsideration and an administrative stay of the final rule.10 We announced in April 2017 our decision to convene a proceeding to reconsider several elements of the FIP, including the appropriate compliance dates for the NOX emission limits for Flint Creek Unit 1, White Bluff Units 1 and 2, and Independence Units 1 and 2.11 EPA also published a document in the Federal Register on April 25, 2017, administratively staying the effectiveness of the 18-month NOX compliance dates in the FIP for these units for a period of 90 days.12 On July 13, 2017, the EPA published a proposed rule to extend the NOX compliance dates for Flint Creek Unit 1, White Bluff Units 1 and 2, and Independence Units 1 and 2, by 21 months to January 27, 2020.13 14

On July 12, 2017, Arkansas submitted a proposed SIP revision with a request for parallel processing, addressing the NOX requirements for Bailey Unit 1, McClellan Unit 1, Flint Creek Boiler No. 1, Lake Catherine Unit 4, White Bluff Units 1 and 2 and the Auxiliary Boiler, and Independence Units 1 and 2 (Arkansas Regional Haze NOX SIP revision or Arkansas NOX SIP revision). In our March 12, 2012 final action on the 2008 Arkansas Regional Haze SIP, we disapproved the State's source-specific NOX BART determinations for Bailey Unit 1; McClellan Unit 1; Flint Creek Boiler No. 1; Lake Catherine Unit 4; White Bluff Units 1 and 2 and its auxiliary boiler.15 In that same action, we also made the determination that the State did not satisfy the statutory and regulatory requirements for the reasonable progress analysis. We promulgated a FIP on September 27, 2016, that established source-specific NOX BART emission limits for these seven EGUs and NOX emission limits under reasonable progress for Independence Units 1 and 2 to address the disapproved portions of the 2008 Arkansas Regional Haze SIP submittal.

Arkansas' proposed July 2017 Regional Haze NOX SIP revision addressed the NOX BART requirements for Arkansas' EGUs by relying on participation in the Cross State Air Pollution Rule (CSAPR) ozone season NOX trading program as an alternative to BART. The July 2017 Regional Haze NOX SIP revision proposal also made the determination that no additional NOX emission controls for Arkansas sources, beyond participation in CSAPR's ozone season NOX trading program, are required for ensuring reasonable progress in Arkansas. As noted above, the July 2017 Regional Haze SIP revision addresses NOX requirements for the same EGUs for which we established source-specific NOX emission limits in our September 27, 2016 FIP. In a document published in the Federal Register on September 11, 2017, we proposed to approve the Arkansas Regional Haze NOX SIP revision.16 On October 31, 2017, we received ADEQ's final NOX SIP revision addressing BART and reasonable progress requirements for NOX for EGUs in Arkansas for the first implementation period. The final Arkansas Regional Haze NOX SIP revision we received on October 31, 2017, did not contain significant changes from the state's proposed SIP revision. Therefore, it is appropriate for us to take final action, as proposed, on the final SIP revision.

In 2005, the EPA published the Clean Air Interstate Rule (CAIR), which required 27 states and the District of Columbia to reduce emissions of SO2 and NOX from affected electric generating units (EGUs) that significantly contribute to or interfere with maintenance of the 1997 national ambient air quality standards (NAAQS) for fine particulates and/or 8-hour ozone in any downwind state.17 EPA demonstrated that CAIR would achieve greater reasonable progress toward the national visibility goal than would BART; therefore, states could rely on CAIR as an alternative to BART for SO2 and NOX at EGUs.18 Although Arkansas was subject to certain NOX requirements of CAIR, including the state-wide ozone season NOX budget but not the annual NOX budget, and although this would have been sufficient for Arkansas to rely on CAIR to satisfy NOX BART, it elected not to rely on CAIR in its 2008 Regional Haze SIP to satisfy the NOX BART requirement for its EGUs.

On July 11, 2008, the D.C. Circuit found CAIR was fatally flawed and on December 23, 2008, the Court remanded CAIR to EPA without vacatur to “preserve the environmental benefits provided by CAIR.” 19 In 2011, acting on the D.C. Circuit's remand, we promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR and issued FIPs to implement the rule in CSAPR-subject states.20 Arkansas EGUs are covered under CSAPR for ozone season NOX.21

In 2012, we issued a limited disapproval of several states' regional haze SIPs because of reliance on CAIR as an alternative to EGU BART for SO2 and/or NOX.22 We also determined that CSAPR would provide for greater reasonable progress than BART and amended the Regional Haze Rule to allow for CSAPR participation as an alternative to source-specific SO2 and/or NOX BART for EGUs, on a pollutant-specific basis.23 As Arkansas did not rely on CAIR to satisfy the NOX BART requirements in the 2008 Regional Haze SIP, Arkansas was not included in the EPA's limited disapproval of regional haze SIPs that relied on CAIR to satisfy certain regional haze requirements.24 As noted above, in the 2012 rulemaking in which we promulgated those limited disapprovals, the EPA also promulgated FIPs to replace reliance on CAIR with reliance on CSAPR in many of those regional haze SIPs; however, Arkansas was likewise not included in that FIP action.

CSAPR has been subject to extensive litigation, and on July 28, 2015, the DC Circuit issued a decision generally upholding CSAPR but remanding without vacating the CSAPR emissions budgets for a number of states.25 On October 26, 2016, we finalized an update to CSAPR that addresses the 1997 ozone NAAQS portion of the remand as well as the CAA requirements addressing interstate transport for the 2008 ozone NAAQS.26 Additionally, three states, Alabama, Georgia, and South Carolina, have adopted or committed to adopt SIPs to continue their participation in the CSAPR program, including adoption on a voluntary basis of state SO2 emission budgets equal to those state's remanded SO2 emission budgets. On November 10, 2016, we proposed a rule intended to address the remainder of the court's remand as it relates to Texas.27 This separate proposed rule included an assessment of the impacts of the set of actions that the EPA had taken or expected to take in response to the D.C. Circuit's remand on our 2012 demonstration that participation in CSAPR provides for greater reasonable progress than BART. Based on that assessment, the EPA proposed that states may continue to rely on CSAPR as an alternative to BART on a pollutant-specific basis. On September 29, 2017, we finalized our proposed finding that the EPA's 2012 analytical demonstration remains valid and that participation in CSAPR, as it now exists, meets the Regional Haze Rule's criteria for an alternative to BART.28 In the October 2017 Arkansas Regional Haze NOX SIP revision, the state relies on CSAPR as an alternative to BART for control of NOX from EGUs.

This action finalizes our proposed approval of the Arkansas Regional Haze NOX SIP revision, which relies on EPA's determination that CSAPR provides for greater reasonable progress than BART to address the NOX BART requirements for Arkansas EGUs. Consistent with 40 CFR 51.308(e)(4), Arkansas makes the determination that since the Arkansas EGUs are currently subject to the CSAPR requirements for ozone-season NOX, the State need not have source specific requirements for subject-to-BART EGUs to install, operate, and maintain BART for NOX. We find that it is appropriate for Arkansas to rely on participation in the CSAPR ozone season NOX trading program to satisfy the NOX BART requirements for Arkansas EGUs. EPA's 2012 determination and our September 29, 2017 final rulemaking make the finding that the EPA's 2012 analytical demonstration remains valid and that participation in CSAPR, as it now exists, meets the Regional Haze Rule's criteria for an alternative to BART.29 Arkansas' reliance on CSAPR addresses the NOX BART requirements for Bailey Unit 1; McClellan Unit 1; Flint Creek Boiler No. 1; Lake Catherine Unit 4; White Bluff Units 1 and 2 and the Auxiliary Boiler.

We also find that Arkansas reasonably determined that additional NOX control measures are not needed to ensure reasonable progress for the first implementation period. Given the level of visibility impairment due to NOX emissions from Arkansas point sources at the state's two Class I areas, Caney Creek and Upper Buffalo, on the 20% worst days, additional NOX controls for Arkansas point sources are not anticipated to yield meaningful visibility improvements at Arkansas Class I areas on the 20% worst days.30 In light of this, and considering that Arkansas EGUs are participating in CSAPR for ozone season NOX, we are finalizing our determination that Arkansas' decision to screen out Arkansas point sources from further evaluation of additional NOX controls is reasonable and we are finalizing our approval of Arkansas' determination that no additional NOX controls, beyond Arkansas EGU participation in CSAPR for ozone season NOX, are necessary to satisfy the reasonable progress requirements for NOX in Arkansas for the first implementation period.

We are finalizing our approval of the Arkansas Regional Haze NOX SIP revision as we have found it to meet the applicable provisions of the Act and EPA regulations and it is consistent with EPA guidance. We received comments from three commenters on our proposed approval. Our response to the substantive comments we received are summarized in Section III. We have fully considered all significant comments on our proposed action on the SIP revision submittal, and have concluded that no changes to our final determination are warranted.

We are approving the October 2017 Arkansas Regional Haze NOX SIP revision submitted by ADEQ as we have determined that it meets the regional haze SIP requirements, including the reasonable progress requirements in § 51.308(d) and the BART requirements in § 51.308(e). In conjunction with this final approval, we are finalizing in a separate rulemaking, which is also being published in this Federal Register, our withdrawal of FIP emission limits for NOX that would otherwise apply to the nine affected units.

The public comments received on our proposed rule are included in the publicly posted docket associated with this action at www.regulations.gov. We reviewed all public comments that we received on the proposed action. Below, we provide a summary of certain comments and our responses. The comments and our responses thereto are contained in a separate document titled the Arkansas Regional Haze NOX SIP Revision Response to Comments.

Comment: ADEQ proposes to rely on ozone-season NOX reductions under the updated CSAPR in lieu of the source-specific BART emission limits that EPA finalized as part of its 2016 regional haze FIP. ADEQ relies on a “back-of-the-envelope” calculation of anticipated emission reductions, and asserts that EPA's updated 2018 Arkansas ozone season NOX emission budgets under the CSAPR update achieve a greater reduction in NOX emissions than do implementation of NOX BART controls included in the Arkansas Regional Haze FIP. Without any further analysis, ADEQ suggests that compliance with the 2018 CSAPR ozone season allocations for Arkansas EGUs satisfies the BART requirements of the Regional Haze Rule.

Response: This comment is in relation to ADEQ's comparison of anticipated NOX emissions reductions based on the CSAPR emission budgets versus the anticipated NOX emissions reductions from the Arkansas Regional Haze FIP. We did not base our proposed approval of the Arkansas NOX SIP revision on the state's comparison of the anticipated NOX reductions in Arkansas from CSAPR against those anticipated from the FIP. Furthermore, in response to comments that the state received during its state rulemaking process, ADEQ proceeded to remove from its final SIP revision the comparison of anticipated NOX emissions reductions under the FIP versus CSAPR because such information is not necessary for EPA approval of the SIP.31 With regard to the comment that ADEQ did not adequately support its determination that compliance with the 2018 CSAPR ozone season allocations for Arkansas EGUs satisfies the BART requirements, we disagree that ADEQ was required to undertake a state-specific analysis of whether reliance on CSAPR provides for greater reasonable progress than BART; as allowed under 40 CFR 51.308(e)(4), Arkansas is relying on EPA's determination that CSAPR provides for greater reasonable progress than BART to address the NOX BART requirements for its EGUs. Arkansas' EGUs are currently subject to the CSAPR requirements for ozone-season NOX, the State need not require subject-to-BART EGUs to install, operate, and maintain BART for NOX. As explained above, although the D.C. Circuit remanded the CSAPR emissions budgets of certain states in 2015, we recently reaffirmed our determination that participation in CSAPR, as it now exists, continues to meet the Regional Haze Rule's criteria for an alternative to BART.32

Comment: Arkansas' proposal unlawfully exempts sources from installing BART controls without going through the exemption process Congress prescribed. The visibility protection provisions of the Clean Air Act include a “requirement” that certain sources “install, and operate” BART controls. Congress specified the standard by which sources could be exempted from the BART requirements, which is that the source is not “reasonably anticipated to cause or contribute to a significant impairment of visibility” in any Class I area. Appropriate federal land managers must concur with any proposed exemption. Neither EPA nor Arkansas has demonstrated that the Arkansas EGUs subject to BART meet the standards for an exemption. Nor has EPA or the state obtained the concurrence of federal land managers. Therefore, Arkansas must require source-specific BART for each power plant subject to BART.

Response: To the extent the comment is directed to prior final agency actions allowing states to rely on alternatives to BART generally or on CSAPR specifically to meet the BART requirements, this comment falls outside of the scope of our action here. Objections that the use of BART alternatives does not comply with 42 U.S.C. 7491(b)(2)(A) do not properly pertain to this action, but instead to our past regulatory actions that provided for BART alternatives.33 We do note that the Arkansas SIP does not exempt the EGUs from BART but rather relies on EPA's determination that states may rely on CSAPR as an alternative means of meeting the BART requirements.

Comment: Even if Arkansas could meet a BART statutory exemption test, the state cannot rely on CSAPR because of flaws in the rule that purport to show that CSAPR makes more reasonable progress than BART (the “Better than BART” rule). EPA's regulations purport to allow the use of an alternative program in lieu of source-specific BART only if the alternative makes “greater reasonable progress” than would BART. To demonstrate greater reasonable progress, a state or EPA must show that the alternative program does not cause visibility to decline in any Class I area and results in an overall improvement in visibility relative to BART at all affected Class I areas. Here, EPA claims that its 2012 “Better than BART” rule demonstrated that CSAPR achieves greater reasonable progress than BART.

EPA compared CSAPR to BART in the Better than BART rule by using CSAPR allocations that are more stringent than now required as well as by using presumptive BART limits that are less stringent than required under the statute. These assumptions tilted the scales in favor of CSAPR. It would be arbitrary and capricious for EPA to rely on such an inaccurate, faulty comparison to conclude that CSAPR will achieve greater reasonable progress than will BART. Even under EPA's skewed comparison, CSAPR achieves barely more visibility improvement than BART at the Breton and Caney Creek National Wilderness Areas. If EPA had modeled accurate BART limits and up-to-date CSAPR allocations, then EPA would likely find that CSAPR would lead to less visibility improvement than BART.

EPA cannot lawfully rely on the Better than BART rule because the rule is based on a version of CSAPR that no longer exists. Accordingly, any conclusion that EPA made in the 2012 Better than BART rule regarding whether CSAPR achieves greater reasonable progress than BART is no longer valid. Since 2012, EPA has significantly changed the allocations and the compliance deadlines for CSAPR. Of particular relevance here, after 2012, EPA increased the total ozone season CSAPR allocations for every covered EGU in Arkansas. EPA also extended the compliance deadlines by three years, such that the phase 1 emissions budgets take effect in 2015-2016 and the phase 2 emissions budgets take effect in 2017 and beyond.

In addition to EPA's increased emissions budgets and extended compliance timeline, the D.C. Circuit's decision in EME Homer City Generation v. EPA, 795 F.3d 118, 130-32 (D.C. Cir. 2015), which invalidated the SO2 or NOX emission budgets for thirteen states, has fundamentally undermined the rationale underlying EPA's Better than BART rule. Specifically, the Court invalidated the 2014 SO2 emission budgets for Alabama, Georgia, South Carolina, and Texas, and the 2014 NOX emission budgets for Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia. As explained in our initial brief in the still-pending challenge to the CSAPR Better than BART rule, the effect of Homer City is to pull the rug out from under EPA's BART exemption rule. EPA's finding that CSAPR would produce better visibility improvement than BART was premised on the existence of all the state-specific emission budgets adopted in the Transport Rule. Because the D.C. Circuit has now invalidated many of those budgets, the BART exemption rule is left without the factual basis on which it relied.

Response: As we had proposed, our finalized determination that CSAPR participation will resolve the NOX BART requirements for Arkansas EGUs is based on a separately proposed and recently finalized action that affirms that participation in CSAPR, as it now exists, continues to meet the Regional Haze Rule's criteria for an alternative to BART.34 This comment is directed to the separately proposed action that was finalized on September 29, 2017, and therefore, falls outside of the scope of our action here.

Comment: Arkansas's reliance on CSAPR as an alternative to BART is unlawful because the emissions reductions achieved by CSAPR in Arkansas are limited to five months of the year—the ozone season. Under the Regional Haze Rule, BART represents a year-round limit on emissions. Given that CSAPR does not limit annual NOX emissions from Arkansas sources, but instead only applies to Arkansas sources for five months out of the year, CSAPR cannot satisfy the Regional Haze Rule's requirement that sources meet the “best system of continuous emission reduction” for NOX. In fact, as noted in EPA's Technical Support Document for the proposed disapproval of Arkansas's 2008 SIP, the adverse impacts of Arkansas NOX emissions on visibility “tend to be a large component of visibility impairment during the winter months”—i.e., outside of the ozone season. Thus, NOX emissions reductions that are effective only during the ozone season will not address the visibility impact due to wintertime ammonium nitrate at Breton Island or other Class I areas in neighboring states.

Even within the five-month ozone season, CSAPR allows for temporal variability such that a facility could emit at high levels within a shorter time period, creating higher than anticipated visibility impacts. Because of the high degree of variability and flexibility, power plants may exercise options that would lead to little or no emission reductions. For example, a facility in Arkansas might purchase emission credits from a source beyond the air shed of the Class I area the Arkansas source impairs. Because CSAPR requirements only pertain to the Arkansas source for a fraction of the year, that source may be even more incentivized to purchase emission credits from elsewhere than a source in a fully covered CSAPR state. Thus, without knowing which Arkansas EGUs will reduce pollutants by what amounts under CSAPR, or when they will do so, and because these emissions reductions are applicable for less than half the year, Arkansas simply cannot know the impact of CSAPR upon Breton and other affected Class I areas.

For these reasons, reliance on CSAPR to satisfy the NOX BART requirements is unlawful. EPA should disapprove Arkansas' reliance on CSAPR to satisfy the NOX requirements.

Response: These comments fall outside the scope of this rulemaking. In 2012, when we finalized our determination that CSAPR provides for greater reasonable progress than BART, we considered comments that the imposition of BART would require year-round operation of NOX controls but that under CSAPR there would be no assurance that controls would operate outside of the ozone season. The basis for our decision to allow Arkansas and other states covered by CSAPR for ozone season only to rely on participation in that program to satisfy NOX BART is explained in that rulemaking.35

Comment: Arkansas purports to satisfy the regulatory requirements for a BART alternative by relying on ozone-season budgets for NOX that no longer exist. To rely on CSAPR as an alternative to BART, Arkansas must demonstrate that the version of CSAPR that is now in effect, and will be in effect at the time of the final rule, makes greater reasonable progress than BART. Having failed to make that demonstration, Arkansas has not met its burden to show that CSAPR will achieve greater reasonable progress than source-specific BART. More troubling, Arkansas' reliance on the CSAPR “Better than BART” rule fails to account for, or even mention, the possibility that CSAPR or the “Better than BART” rule will not exist in any form when the SIP is finalized.

Response: As we had proposed, our finalized determination that CSAPR participation will resolve NOX BART requirements for Arkansas EGUs is based on a separately proposed and finalized action taken in 2012. On September 29, 2017, we affirmed our proposed finding that the EPA's 2012 analytical demonstration remains valid and that participation in CSAPR, as it now exists, meets the Regional Haze Rule's criteria for an alternative to BART.36 This comment falls outside of the scope of our action here.

Comment: When evaluating a state's BART determination, the EPA looks at existing requirements and cannot rely on potential future actions in its decision to approve or disapprove a state SIP. As EPA recognizes in the proposed approval, the agency cannot finalize Arkansas' proposed SIP until EPA finalizes its finding that CSAPR continues to be better than BART as an alternative to source-specific EGU BART for NOX. Although EPA, on September 29, 2017, finalized a rule purporting to conclude that ozone-season NOX limitations under CSAPR continue to be “better than BART” for eligible EGUs in Arkansas, EPA failed to include any of the documentation or analyses supporting that finding in this docket. As such, EPA cannot approve Arkansas's SIP proposal unless and until those analyses are included in the docket and the public has a meaningful opportunity to comment on those materials.

Response: We included the notice of proposed rulemaking addressing whether CSAPR continues to be better than BART following changes to the budgets of certain states in our docket for this action because of its relevance to Arkansas' proposed SIP revision.37 As explained in our proposed approval of Arkansas' SIP revision, EPA would be able to approve regional haze SIP submissions that rely on participation in CSAPR as an alternative to BART only if it were to finalize its proposed rule or to otherwise determine that participation in CSPAR remains a viable BART alternative.38 We accordingly made clear that a final determination that CSAPR participation will resolve the NOX BART requirements for Arkansas' EGUs is based on a separately proposed and finalized action. The supporting materials and analyses underlying that action are contained in the docket for that action, and the public has had a meaningful opportunity to comment on that determination.

Comment: EPA should approve the Arkansas Regional Haze NOX SIP revision because it satisfies the criteria of the Regional Haze program. The states, not EPA, play the lead role in designing and implementing [the] regional haze programs. EPA may disapprove a SIP only if it does not satisfy the minimum criteria of Section 110 of the Clean Air Act. Accordingly, EPA has no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of Section 110(a)(2), and has no authority to disapprove of a SIP “simply on a preference for a particular control measure. The SIP revision meets the requirements of the Regional Haze Program and must be approved. ADEQ's determination that compliance with the CSAPR ozone season NOX trading program requirements satisfies NOX BART and any reasonable progress obligations for the state's EGUs is consistent with the Regional Haze Rule, is appropriate considering the minimal role that NOX emissions play in visibility impairment in Arkansas' Class I areas, and would eliminate the unnecessary and duplicative requirements currently imposed by the Arkansas Regional Haze FIP.

Response: We appreciate the commenter's support of our proposed approval of the Arkansas Regional Haze NOX SIP revision. As we had proposed, we are finalizing our approval of the Arkansas Regional Haze NOX SIP revision.

Comment: The State attempts to justify the elimination of reasonable progress controls on Independence by claiming that the CSAPR allocations for NOX will result in greater reductions in NOX emissions than the FIP would. The State's rationale has no basis in law or in fact. To begin, there is no statutory or regulatory provision which allows states to rely on CSAPR in lieu of conducting a four-factor analysis of reasonable progress. While EPA has issued a rule that purports to allow states to rely on CSAPR in lieu of imposing source-specific controls on BART sources, EPA has not issued a comparable rule for reasonable progress.

Moreover, the State's comparison of NOX reductions under CSAPR versus the FIP is flawed. The State compares CSAPR allocations to binding reductions which must occur under the FIP, based on legally enforceable emissions limits. This compares apples to oranges. As the name suggest, CSAPR allocations are not emissions limits, they are initial entitlements to emit certain amounts of pollution. Sources can emit more than their initial allocations, because CSAPR allows both intra- and inter-state trading of allowances. Thus, it is highly misleading to treat CSAPR allocations as binding emission limits which can be compared directly to the emission limits and reductions under the Arkansas Regional Haze FIP.

ADEQ further claims in its SIP that it “anticipates that some EGUs will choose to install combustion controls to comply with CSAPR that would reduce emissions year-round, not just in the ozone season.” ADEQ provides no evidence for this assumption. More importantly, ADEQ wrongly conflates installation of controls with operation and optimized operation of controls. Even if it were true that some EGUs will install controls to comply with CSAPR, ADEQ provides no reason to assume that EGUs will operate those controls when they are not legally required to do so. ADEQ has advanced no basis for assuming that Arkansas EGUs will spend additional money to run NOX controls or optimize them to reduce NOX when they are not required to do so, i.e., outside of the CSAPR ozone season. Thus, there is no record basis for assuming that CSAPR will reduce NOX emissions in Arkansas outside of the ozone season.

Response: We disagree with the commenter that Arkansas is relying on CSAPR in lieu of conducting an appropriate reasonable progress analysis. In assessing the need for additional NOX controls to address reasonable progress, Arkansas focused its reasonable progress assessment on the Central Regional Air Planning (CENRAP) 39 Comprehensive Air Quality Model with extensions (CAMx) source apportionment modeling,40 and observed that a small portion of total light extinction is due to nitrate (NO3) from Arkansas sources and that this portion is driven by on-road sources and not point sources. Arkansas notes that the source apportionment data show that NO3 from Arkansas point sources contributes less than 0.5% of the total light extinction at Caney Creek and Upper Buffalo on the 20% worst days in 2002, and that, for the first implementation period, NOX is not a key pollutant contributing to visibility impairment at Arkansas' Class I areas on those days. Based on the above observations, Arkansas reached the conclusion that, for the first implementation period, additional NOX controls for Arkansas point sources are not anticipated to yield meaningful visibility improvements at Arkansas Class I areas on the 20% worst days in view of the amount of visibility impairment attributed to these sources. Given the level of visibility impairment due to NOX from Arkansas point sources at Caney Creek and Upper Buffalo on the 20% worst days and considering that Arkansas EGUs are participating in CSAPR for ozone season NOX, Arkansas decided to screen out Arkansas point sources from further evaluation of additional NOX controls, thereby not evaluating the four reasonable progress factors for point sources with respect to NOX in the first implementation period.

With regard to the comment that “the State's comparison of NOX reductions under CSAPR versus the FIP is flawed,” we note that we did not base our proposed approval of the Arkansas NOX SIP revision on the state's comparison of these NOX reductions. In its draft SIP revision, ADEQ compared anticipated NOX emission reductions under CSAPR as compared to the source-specific BART determinations required by EPA's FIP in assessing the need for additional reductions in NOX to ensure reasonable progress. However, in its final SIP, ADEQ did not include this information as part of its rationale. We note that our proposed approval of Arkansas' SIP revision did not rely on this comparison of emissions. As a result, the adequacy of ADEQ's assessment is irrelevant to their final action or to our review of the final SIP. The commenter's statements questioning ADEQ's assumptions that Arkansas EGUs will install and operate NOX combustion controls to comply with CSAPR for ozone-season NOX and operate those controls year-round appear to be in the context of the commenter's contention that ADEQ's comparison of NOX reductions under CSARP versus the Arkansas FIP is flawed. As noted above, the adequacy of ADEQ's comparison of NOX emissions reductions in the proposed SIP revision is irrelevant to their final action or to our review of the final SIP.

Comment: The State failed to consider any of the four statutory factors for reasonable progress and the reasonable progress analysis is therefore unlawful and not approvable. Arkansas recognizes that “the RHR requires states to consider four factors: (1) Cost of compliance, (2) the time necessary for compliance, (3) the energy and non-air quality environmental impacts of compliance, and (4) the remaining useful life of potentially affected sources,” but then the State proceeds to ignore all four reasonable progress factors for point sources in its reasonable progress analysis for NOX. The Clean Air Act provides that in determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compliance, and the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements. The Act contains no exception to this requirement. The SIP fails to consider these four statutory factors, and therefore violates the Clean Air Act. In particular, for NOX emissions, the SIP contains no analysis of the four factors. For emissions of other pollutants, the SIP contains only a single sentence claiming that the cost effectiveness for control of POA and CM species from many individual small sources is difficult to quantify.

The SIP's failure to consider any of the four factors for NOX controls is particularly egregious given that the State acknowledges that EPA has already issued a final rule containing a four-factor analysis for the Independence plant, which resulted in a requirement that Independence install and operate low-NOX burners. The State has produced no evidence that EPA's four-factor analysis was incorrect in any way, because the State does not analyze any of the four factors which EPA considered.

Response: We agree that the CAA and the Regional Haze Rule provide that in determining reasonable progress, states “shall take into consideration the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements.” 41 However, in cases where it has been demonstrated that a particular pollutant or source category does not contribute significantly to visibility impairment at affected Class I areas, it may be appropriate to end the analysis at that point, without the need to evaluate the four statutory factors for potential controls to address that pollutant and/or source category. For example, EPA's “Guidance for Setting Reasonable Progress Goals Under the Regional Haze Program” provides that the reasonable progress analysis involves identification of key pollutants and source categories that contribute to visibility impairment at the Class I area; the guidance provides that once the key pollutants contributing to visibility impairment at each Class I area have been identified, the sources or source categories responsible for emitting these pollutants or pollutant precursors can also be determined.42 The reasonable progress factors are then to be applied to the key pollutants and sources or source categories contributing to visibility impairment at each affected Class I area. As we discussed on our proposed action on the Arkansas Regional Haze NOX SIP revision, taking into consideration that states have significant discretion in determining what sources to analyze for controls under reasonable progress, we proposed to agree with the state that it is reasonable for Arkansas to reach the conclusion that, for the first implementation period, additional NOX controls for Arkansas point sources are not anticipated to yield meaningful visibility improvements at Arkansas Class I areas in view of the amount of visibility impairment attributed to these sources.43 Given the level of visibility impairment due to NOX from Arkansas point sources at Caney Creek and Upper Buffalo on the 20% worst days and considering that Arkansas EGUs are participating in CSAPR for ozone season NOX, we find that it is reasonable for Arkansas to screen out Arkansas point sources from further evaluation of additional NOX controls and therefore not have to evaluate the four reasonable progress factors for point sources with respect to NOX in the first implementation period.

Arkansas' conclusions with regard to the percentage contribution to light extinction from NO3 on the 20% worst days is generally consistent with the findings we made in the Arkansas Regional Haze FIP.44 In the FIP, we made the finding that NO3 due to NOX emissions from point sources is not considered a driver of regional haze at Caney Creek and Upper Buffalo on the 20% worst days, contributing only approximately 3% of the total light extinction, as projected by CENRAP's CAMx source apportionment modeling.45 We also stated in the FIP proposal that because of the small contribution of NO3 from point sources to the total light extinction at Caney Creek and Upper Buffalo on the 20% worst days, we did not expect that NOX controls under the reasonable progress requirements would offer as much improvement on these days compared to SO2 controls.46 However, in the FIP, we decided to look at 2011 National Emissions Inventory (NEI) data for NOX for Arkansas point sources to determine if there are any large point sources that are reasonable candidates for evaluation under the four reasonable progress factors. Based on this assessment, we proceeded with an analysis of the four reasonable progress factors for NOX controls for the Independence facility as we reasoned that it is the second largest point source of NOX emissions in the state and potentially one of the largest single contributors to visibility impairment at Class I areas in Arkansas.47 We also conducted CALPUFF modeling to determine the maximum 98th percentile visibility impacts from the Independence facility and the predicted visibility improvement due to NOX controls at the facility. That analysis revealed that low NOX burner controls would be cost-effective and would result in an improvement of the 98th percentile visibility impacts from the Independence facility at Caney Creek and Upper Buffalo, and we finalized NOX controls for the Independence facility under the reasonable progress requirements.48 In the Arkansas NOX SIP revision, the state takes a different approach in arriving at its decision that no additional NOX controls for Arkansas point sources are necessary under reasonable progress for the first implementation period. In its evaluation, Arkansas places greater emphasis on its assessment of the relative contributions to light extinction of sources within the State than it does on its assessment of the relative contributions of all sources (i.e., sources both in and outside Arkansas). Arkansas focused its assessment on the CENRAP's CAMx source apportionment modeling and reaches the conclusion that, for the first implementation period, additional NOX controls for Arkansas point sources are not anticipated to yield meaningful visibility improvements at Arkansas Class I areas on the 20% worst days in view of the amount of visibility impairment attributed to these sources. Therefore, Arkansas determined that no additional NOX controls beyond EGU participation in CSAPR for ozone season NOX are necessary to satisfy the reasonable progress requirements for Arkansas sources in the first planning period. In future planning periods, Arkansas will have to reevaluate the benefit of NOX reductions, which will likely become more important as other pollutants are reduced. We believe Arkansas is within its discretion to take a different approach than we did in the Arkansas FIP, and that the approach Arkansas has taken to determine whether additional NOX controls are necessary under reasonable progress is reasonable and therefore, approvable. The Clean Air Act gave EPA the power to identify pollutants and set air quality standards. Congress gave states “the primary responsibility for implementing those standards.” Luminant Generation Co. v. EPA, 675 F.3d 917, 921 (5th Cir. 2012). (internal quotation marks omitted); see 42 U.S.C. 7407(a) (“Each State shall have the primary responsibility for assuring air quality within [its] entire geographic area.”); id. section 7401(a)(3) (“[A]ir pollution prevention . . . is the primary responsibility of States and local governments.”). The states have “wide discretion” in formulating SIPs. Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976).

We are finalizing our approval of Arkansas' determination that Arkansas EGU participation in CSAPR for ozone season NOX is sufficient to satisfy the reasonable progress requirements for NOX in Arkansas for the first implementation period.

Comment: The State's reasonable progress analysis unlawfully fails to consider whether measures are needed to make reasonable progress at Class I areas outside Arkansas. The State's analysis is unlawful, regardless of whether the old or new version of the Regional Haze rule applies here. The prior version of the Regional Haze rule required each state to make an independent determination of the measures needed to make reasonable progress at out-of-state Class I areas. After noting the statutory goal to eliminate all human-caused visibility impairment, EPA observed that “it would be impossible to achieve this goal if upwind states did not have the same responsibility to address their visibility impairing emissions and achieve reasonable progress in downwind Class I areas as the downwind states themselves.”

The current version of the regional haze rule clarifies, but does not alter, this obligation. As EPA noted in the 2017 revisions to the regional haze rule, states have an “independent obligation to include in their SIPs enforceable emission limits and other measures that are necessary to make reasonable progress at all affected Class I areas, as determined by considering the four factors.” Despite the requirement to consider whether measures are needed to make reasonable progress at out of state Class I areas, the State's analysis focuses exclusively on the two Class I areas within Arkansas. Yet the State acknowledges that emissions from Arkansas sources impact visibility at Class I areas in Missouri. EPA's analysis of the SIP revision commits the same mistake as the SIP revision itself. EPA fails to analyze whether the State has complied with Clean Air Act requirements to determine whether measures are needed to make reasonable progress at out-of-state Class I areas. By failing to consider whether measures are necessary to make reasonable progress at Missouri Class I areas, the draft SIP violates the Regional Haze Rule, and is unapprovable.

Response: We disagree with the commenter that Arkansas failed to consider whether additional controls are necessary to make reasonable progress in Class I areas outside the state. The Arkansas NOX SIP revision recognizes that sources in Arkansas impact the two Class I areas in Missouri: Hercules Glade Wilderness Area and Mingo Wilderness Area. Arkansas also explains that “[t]he most recent five-year rolling average of observed visibility impairment on the twenty percent haziest days at Hercules Glades Wilderness Area beat Missouri's 2018 RPG for that Class I area and the most recent five year-rolling average of observed visibility impairment on the twenty percent haziest days at Mingo Wilderness Area is on track to beat Missouri's RPG for that Class I area.” 49 Arkansas concludes that the visibility progress observed at the IMPROVE monitors indicates that sources in Arkansas are not interfering with the achievement of Missouri's 2018 RPGs for Hercules Glades and Mingo Wilderness Areas, and that no additional controls are therefore needed on Arkansas sources to ensure reasonable progress at Missouri's Class I areas.50 Furthermore, Arkansas provided Missouri with an opportunity for consultation on the Arkansas NOX SIP revision.51 Arkansas sent a letter dated June 14, 2017, to the Missouri Department of Natural Resources (DNR) providing notification and electronic access to the proposed SIP revision, and providing an opportunity to discuss Missouri's assessment of the impact of the proposed SIP revision on reasonable progress at Missouri Class I areas.52 Missouri DNR did not have comments on Arkansas' proposed SIP revision.

Comment: The Arkansas Regional Haze NOX SIP revision determines that controls for reasonable progress are not necessary for the first planning period. The Clean Air Act requires that regional haze implementation plans contain measures “necessary to make reasonable progress toward meeting the national goal” of no manmade visibility impairment. In its regulations implementing the Regional Haze program, EPA established that, in setting a reasonable progress goal, the State must consider the uniform rate of improvement in visibility and the emission reduction measures needed to achieve it for the period covered by the implementation plan. EPA has further explained in its guidance for setting reasonable progress goals that states should take into account the fact that the long-term goal of no manmade impairment encompasses several planning periods and that it is reasonable for the state to defer reductions to later planning periods in order to maintain a consistent glidepath toward the long-term goal. Mandating emissions controls that are not necessary to make reasonable progress during the planning period contradicts this statutory and regulatory scheme.

Reasonable progress controls during the first planning period clearly are not necessary for Arkansas sources. Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring data show that the haze index has been consistently below the glidepath in Arkansas' Class I areas—Caney Creek and Upper Buffalo—and Entergy's analysis demonstrates that it is projected to remain so through the end of the second planning period.

Even if controls were required for reasonable progress during the first planning period, NOX controls on Arkansas EGUs are not necessary, as they will provide minimal visibility improvement in Arkansas' Class I areas. As EPA's own analysis indicates, the contribution of Arkansas point sources' nitrate emissions to visibility impairment in Arkansas' Class I areas is insignificant. According to EPA's analysis, nitrate from all point sources included in the regional modeling is projected to account for only 3% of the total light extinction at the Caney Creek and Upper Buffalo Class I areas, with nitrate from Arkansas point sources being responsible for only 0.27% of the total light extinction at Caney Creek and 0.14% at Upper Buffalo. As a result, NOX controls on Arkansas EGUs during the first planning period are not necessary to make reasonable progress towards natural visibility conditions.

Response: We appreciate the commenter's support of our proposed approval of Arkansas' reasonable progress determination for NOX. As we had proposed, given the level of visibility impairment due to NOX from Arkansas point sources at Caney Creek and Upper Buffalo on the 20% worst days and considering that Arkansas EGUs are participating in CSAPR for ozone season NOX, we are finalizing our determination that Arkansas' decision to screen out Arkansas point sources from further evaluation of additional NOX controls is reasonable and we are finalizing our approval of Arkansas' determination that Arkansas EGU participation in CSAPR for ozone season NOX is sufficient to satisfy the reasonable progress requirements for NOX in Arkansas for the first implementation period.

Comment: EPA asserts that in the SIP revision, Arkansas takes a different, but nonetheless equally reasonable, approach to determine whether additional controls are necessary under reasonable progress. But EPA ignores that the State's “different” approach would result in more air pollution and worse air quality relative to the existing FIP. As a result, the State's reasonable progress determination violates the Clean Air Act's “anti-backsliding” requirement under 42 U.S.C. 7410(l), and is therefore unapprovable.

In the 2016 FIP, EPA determined that reasonable progress requires that Independence Units 1 and 2 meet NOX emission limits based on the use of low-NOX burners and separated over-fire air controls. Now, the State proposes a SIP that would replace those NOX emission limits with nothing. Eliminating the requirement that a source meet an emission limit necessarily would result in greater air pollution and worse visibility impairment at affected Class I areas. Section 110(l) of the Clean Air Act prevents a plan revision that would weaken the existing FIP requirements in this manner.

Section 110(l) states that the 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. Section 110(l) is the Act's “anti-backsliding” provision. The anti-backsliding provision prohibits plan revisions that would interfere with attainment of the NAAQS or other “applicable requirements” of the Act. Section 110(l) prohibits plan revisions that would interfere with an existing requirement to make reasonable further progress, including a BART determination, as the Act's “applicable requirement[s]” include the regional haze program's BART requirements. When determining whether a plan revision interferes with NAAQS attainment, EPA has interpreted section 110(l) as preventing plan revisions that would increase overall air pollution or worsen air quality. For example, the Eleventh Circuit has upheld EPA's section 110(l) interpretation as prohibiting plan revisions that would increase emissions or worsen air quality. In Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), EPA interpreted section 110(l) as allowing the agency to approve a plan revision that weakened some existing control measures while strengthening others, but only “[a]s long as actual emissions in the air are not increased.” The court upheld EPA's interpretation, which “allow[ed] the agency to approve a [state implementation plan] SIP revision unless the agency finds it will make the air quality worse.” The Seventh Circuit has also upheld EPA's interpretation in Indiana v. EPA, 796 F.3d 803, 812 (7th Cir. 2015). Moreover, in a short discussion regarding a challenge to the Nevada regional haze plan in WildEarth Guardians v. EPA, 759 F.3d 1064, 1074 (9th Cir. 2014), the Ninth Circuit suggested that a haze plan that “weakens or removes any pollution controls” would violate section 110(l).

The existing reasonable progress determination in the FIP requires Independence Units 1 and 2 to meet emission limits based on the use of low-NOX burners and separated over-fire air. These pollution reductions must occur by April 27, 2018. EPA has proposed to extend the compliance deadline for this requirement, but has not proposed to alter the emission limits themselves. Even if the deadline extension is finalized, the final FIP for Arkansas requires Independence Units 1 and 2 to reduce NOX emissions. The draft SIP would eliminate the FIP requirements for Independence without imposing any other requirement that would achieve equal or greater reductions in NOX emissions from Independence.

Response: We disagree that the Arkansas NOX SIP revision violates the CAA's requirements under section 110(l). As discussed in our proposed approval of the Arkansas NOX SIP revision, we believe an approval of the SIP revision and concurrent withdrawal of the corresponding parts of the FIP, as proposed, will meet the Clean Air Act's 110(1) provisions. Generally, a SIP revision may be approved under section 110(l) if EPA finds that it will at least preserve status quo air quality, particularly where the pollutants at issue are those for which an area has not been designated nonattainment.53 Approval of the Arkansas NOX SIP revision is not expected to interfere with attainment and maintenance of any of the NAAQS within the state of Arkansas. No areas in Arkansas are currently designated nonattainment for any NAAQS pollutants. The SIP revision we are approving would allow Arkansas to rely on compliance with CSAPR for ozone-season NOX to satisfy the NOX BART requirement for Arkansas EGUs and makes the determination that no additional NOX controls beyond EGU participation in CSAPR for ozone season NOX are necessary to satisfy the reasonable progress requirements for NOX for Arkansas sources. While the commenter is correct that the Arkansas NOX SIP revision we are approving does not require source-specific NOX controls under reasonable progress for Independence Units 1 and 2, as was required by the FIP, we note that those units are subject to CSAPR for ozone season NOX and their NOX emissions will thus be addressed through participation in the CSAPR ozone season NOX program. Further, the CSAPR 2018 NOX ozone season allocations for Arkansas sources are more stringent than the 2017 allocations. As all areas in Arkansas are attaining all the NAAQS even with current emissions levels, compliance with the CSAPR 2018 NOX ozone season more stringent allocations will not interfere with any applicable requirement concerning attainment or reasonable further progress toward attainment of the NAAQS. We are not aware of any basis for concluding or demonstrating that the Arkansas NOX SIP revision, when implemented, would interfere with the continued attainment of all the NAAQS in Arkansas.

We also do not find that our approval of the Arkansas NOX SIP revision, as proposed, will interfere with the applicable CAA regional haze requirements for BART or reasonable progress because our action is supported by an evaluation that those CAA regional haze requirements for BART and reasonable progress are met. Specifically, EPA has made the determination that Arkansas EGU participation in CSAPR for ozone-season NOX satisfies the NOX BART requirements for Arkansas EGUs, consistent with 40 CFR 51.308(e)(4). On September 29, 2017, we affirmed our proposed finding that the EPA's 2012 analytical demonstration remains valid and that participation in CSAPR, as it now exists, meets the Regional Haze Rule's criteria for an alternative to BART. With regard to reasonable progress for regional haze, the Arkansas NOX SIP revision includes an assessment of anthropogenic sources of visibility impairment and arrives at the determination that given the level of contribution to light extinction from NOX due to Arkansas point sources, Arkansas EGU participation in CSAPR for ozone season NOX is sufficient to satisfy the reasonable progress requirements for NOX in Arkansas for the first implementation period. The Independence facility, on which the FIP imposed source specific NOX controls under the reasonable progress requirements, is subject to CSAPR for ozone season NOX. Even though we are approving the Arkansas NOX SIP revision and concurrently withdrawing the source-specific NOX controls in the FIP for the Independence facility, the NOX emissions from the Independence facility will still be addressed under the regional haze reasonable progress requirements through participation in the CSAPR ozone season NOX emissions trading program. In addition, all Arkansas EGUs with a nameplate capacity of 25 megawatts or greater participate in the CSAPR ozone season NOX emissions trading program. This means that many EGUs that were not subject to control requirements under the FIP are required under the CSAPR trading program to comply with specific NOX emissions allocations during the ozone season.

Comment: To be approvable, any SIP must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals. The agency recognized in disapproving Arkansas's 2011 SIP package, that when evaluating a state's BART determination, the EPA looks at existing requirements and cannot rely on potential future actions in its decision to approve or disapprove a state SIP. Here, EPA's proposed approval is impermissibly based on future contingencies that have not occurred. Indeed, the agency recognized in the proposal that it cannot take a final action until the state completes its rulemaking process, adopts its final regulations, and submits these final adopted regulations as a revision to the Arkansas SIP. Because EPA's proposed action relies on potential future state actions, it cannot be approved.

Response: We disagree with comments that we are relying on potential future state actions in taking final action. CSAPR is an existing program that the state of Arkansas is participating in for NOX. The Arkansas SIP revision relies on participation in CSAPR to meet the requirements of NOX BART, as well as the fact that NOX is not the driver of visibility impairment on the 20% worst days, in their determination under reasonable progress, that no other NOX controls are needed. Future decisions on trading as part of its current participation in CSAPR are not considered future state actions. Current participation in CSAPR is the state action that EPA's proposed action is based upon.

Further, our proposed approval was based on a proposed SIP revision submitted by ADEQ on July 12, 2017, with a request for parallel processing. As we explained in our September 11, 2017 proposal, we proposed action on the SIP revision at the same time that ADEQ was completing the corresponding public comment and rulemaking process at the state level.54 We explained that the July 2017 SIP revision request would not be complete and would not meet all the SIP approvability criteria until the state completes the public process and submits the final, adopted SIP revision with a letter from the Governor or Governor's designee to EPA.55 In our September 11, 2017 proposal, we proposed to approve the SIP revision request after completion of the state public process and final submittal of the SIP revision. On October 31, 2017, we received ADEQ's final SIP revision addressing BART and reasonable progress requirements for NOX for EGUs in Arkansas for the first implementation period. The final Arkansas Regional Haze NOX SIP revision we received on October 31, 2017 did not contain significant changes from the state's proposed SIP revision. Therefore, it is appropriate for us to take final action, as proposed, on the final SIP revision.

Comment: The proposed rule contains certain calculation errors, which, although sufficiently minor that they do not affect EPA's conclusions, should be corrected. EPA states that total light extinction on the 20% worst days in 2002 was 115.87 Mm−1 for Caney Creek and 115 Mm−1 for Upper Buffalo. These values are inconsistent with CENRAP PSAT results, which are 133.93 Mm−1 and 131.79 Mm−1, respectively. EPA's values appear to exclude certain source categories, namely Initial Conditions, Boundary Conditions, Secondary Organic Aerosols—Anthropogenic, and Secondary Organic Aerosols—Biogenic. EPA does not explain why these categories are or should be excluded when calculating light extinction on the 20% worst days in 2002. Further, EPA does include these categories in its calculation of other values, such as the 87.05 Mm−1 value for the SO4 contribution at Caney Creek, which accounts for 3.32 Mm−1 from the Boundary Conditions source category. Because the total light extinction values form the basis for many other values in EPA's analysis, errors in the total light extinction values carry over into the derivative values.

The proposed rule also contains a number of miscalculations unrelated to the total light extinction error. These miscalculations relate to EPA's characterization of the CENRAP PSAT results. While sufficiently minor that they do not affect the outcome of EPA's determination, Entergy lists these errors here in the interest of correcting the record:

• EPA states that the remaining source categories each contribute between 2% and 6% of total light extinction at Arkansas' Class I areas. The high-end rounded value should be changed from 6% to 7%, as the true range is 1.83% to 6.72%, pursuant to the CENRAP PSAT results.

• EPA states that the PSAT results show that natural, on-road, and non-road sources are projected to continue to contribute a very small portion of total light extinction at Arkansas' Class I areas on the 20% worst days in 2018. According to the CENRAP PSAT results, the contribution of natural, on-road, and non-road sources is 8.5% to 9.4% of the total light extinction. This amount should not be characterized as “a very small portion.”

• EPA states that the other species (i.e., NO3, POA, EC, soil, and CM) are also projected to have reductions in their contribution to total light extinction at Caney Creek and Upper Buffalo in 2018. This statement is true for all the species except soil, which actually increases in 2018 for both Class I areas according to the CENRAP PSAT results.

• EPA states that the other source categories in Arkansas each contribute between 7% and 14% to light extinction attributed to Arkansas sources at Caney Creek and Upper Buffalo. According to the CENRAP PSAT results, the correct range is 7% to 8%.

• EPA states that CM from Arkansas sources, primarily area sources, contribute approximately 1 and 2% of total light extinction at Caney Creek and Upper Buffalo, respectively. According to the CENRAP PSAT results, the value for Upper Buffalo is 2.68% (which would round to 3%).

Response: We appreciate the commenter pointing out errors and other mischaracterizations of light extinction values presented in our proposed action. We acknowledge these errors. As pointed out by the commenter, these errors are minor in nature and do not affect our proposed and final determinations on the Arkansas Regional Haze NOX SIP revision.

• The commenter is correct that our proposed action stated that total light extinction on the 20% worst days in 2002 was 115.87 Mm −1 for Caney Creek and 115 Mm −1 for Upper Buffalo.56 However, as pointed out by the commenter, these cited values did not include initial conditions, boundary conditions, and secondary organic matter. As we noted in our proposed action on the 2008 Arkansas Regional Haze SIP,57 the correct total visibility extinction on the 20% worst days in 2002, including contributions from initial conditions, boundary conditions, and secondary organic matter, is 133.93 Mm −1 at Caney Creek 58 and 131.79 Mm −1 at Upper Buffalo.59

• The commenter pointed out that we stated in our proposal that the PSAT results show that natural, on-road, and non-road sources are projected to contribute a very small portion of total light extinction at Arkansas' Class I areas on the 20% worst days in 2018.60 The commenter further points out that the combined contribution of these three source categories is 8.5% and 9.4% at Caney Creek and Upper Buffalo, which the commenter says should not be characterized as “a very small portion.” While we agree with the commenter that the combined contribution of the three source categories is not “very small,” we would like to clarify that the statement made in our proposal referred to the contribution of each individual source category at each Class I area. For example, the natural source category contributes approximately 2.47% of the total light extinction at Caney Creek and 2.6% at Upper Buffalo on the 20% worst days in 2018; the on-road source category contributes approximately 1.68% of the total light extinction at Caney Creek and 1.82% at Upper Buffalo; and the on-road source category contributes approximately 4.38% of the total light extinction at Caney Creek and 4.93% at Upper Buffalo.

• The commenter pointed out that our statement that the light extinction due to species other than SO4 is projected to decrease in 2018 on the 20% worst days at Caney Creek and Upper Buffalo is correct for all species except soil. The commenter is correct, as the light extinction due to soil is projected to increase slightly in 2018 on the 20% worst days at both Class I areas.61 The commenter points out that according to the CENRAP PSAT results, CM from Arkansas sources contribute approximately 2.68% of the total light extinction at Upper Buffalo, not 2%, as stated in our proposal.62 The commenter is correct. The CM contribution from all Arkansas source categories is 3.53 Mm −1, out of a total light extinction of 131.79 Mm −1, which is a contribution of approximately 2.68%.

We are approving a revision to the Arkansas SIP submitted on October 31, 2017, as meeting the regional haze requirements for the first implementation period. This action includes the finding that the submittal meets the applicable regional haze requirements as set forth in sections 169A and 169B of the CAA and 40 CFR 51.300-51.308. The EPA is approving the SIP revision submittal as meeting the following: the core requirements for regional haze SIPs found in 40 CFR 51.308(d) such as the reasonable progress requirement for NOX; the NOX BART requirements for regional haze visibility impairment with respect to emissions of visibility impairing pollutants from EGUs in 40 CFR 51.308(e); and the requirement for coordination with state and Federal Land Managers in § 51.308(i). We are approving ADEQ's reliance on CSAPR participation for ozone season NOX to meet the NOX BART requirement for EGUs. Arkansas' reliance on CSAPR addresses the NOX BART requirements for Bailey Unit 1; McClellan Unit 1; Flint Creek Boiler No. 1; Lake Catherine Unit 4; White Bluff Units 1 and 2 and the Auxiliary Boiler.

We also agree that Arkansas' conclusion that given the relatively small level of visibility impairment due to NOX from Arkansas point sources at Caney Creek and Upper Buffalo on the 20% worst days, for the first implementation period, additional NOX controls for Arkansas point sources are not anticipated to yield meaningful visibility improvements at Arkansas Class I areas on the 20% worst days is reasonable. In light of the level of visibility impairment due to NOX from Arkansas point sources at Caney Creek and Upper Buffalo and considering that Arkansas EGUs are participating in CSAPR for ozone season NOX, we are finalizing our determination that Arkansas' decision to screen out Arkansas point sources from further evaluation of additional NOX controls is reasonable and we are finalizing our approval of Arkansas' determination that no additional NOX controls, beyond Arkansas EGU participation in CSAPR for ozone season NOX, are necessary to satisfy the reasonable progress requirements for NOX in Arkansas for the first implementation period.

Concurrent with our final approval of the Arkansas Regional Haze NOX SIP revision, we are finalizing in a separate rulemaking our final action to withdraw those portions of the Arkansas Regional Haze FIP at 40 CFR 52.173 that impose NOX requirements on Bailey Unit 1; McClellan Unit 1; Flint Creek Boiler No. 1; Lake Catherine Unit 4; White Bluff Units 1 and 2 and the Auxiliary Boiler; and Independence Units 1 and 2.63

We find that an approval of the SIP revision meets the Clean Air Act's 110(1) provisions. No areas in Arkansas are currently designated nonattainment for any NAAQS pollutants. Approval of the Arkansas NOX SIP revision will not interfere with continued attainment of all the NAAQS within the state of Arkansas. The SIP revision we are approving would allow Arkansas to rely on compliance with CSAPR for ozone-season NOX to satisfy the NOX BART requirement for Arkansas EGUs and makes the determination that no additional NOX controls beyond EGU participation in CSAPR for ozone season NOX are necessary to satisfy the reasonable progress requirements for NOX for Arkansas sources. We also find that our approval of the Arkansas NOX SIP revision will not interfere with the applicable CAA regional haze requirements for BART because our action is supported by an evaluation EPA made in a separate rulemaking 64 that the CAA requirement for BART can be satisfied through participation in CSAPR. We also find that our approval of the Arkansas NOX SIP revision will not interfere with the applicable CAA regional haze requirements for reasonable progress because the Arkansas NOX SIP revision includes an assessment of anthropogenic sources of visibility impairment and arrives at the determination that given the level of contribution to light extinction from NOX due to Arkansas point sources, Arkansas EGU participation in CSAPR for ozone season NOX is sufficient to satisfy the reasonable progress requirements for NOX in Arkansas for the first implementation period. The Independence facility, on which the FIP imposed source specific NOX controls under the reasonable progress requirements, is subject to CSAPR for ozone season NOX. Even though we are approving the Arkansas NOX SIP revision and concurrently withdrawing the source-specific NOX controls in the FIP for the Independence facility, the NOX emissions from the Independence facility will still be addressed under the regional haze reasonable progress requirements through participation in the CSAPR ozone season NOX emissions trading program.

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 13, 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).)

Title 40, chapter I, of the Code of Federal Regulations is amended as follows:

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

On November 17, 2017 (82 FR 54307), the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received three comments stating, inter alia, that birds and bats are killed by wind and solar facilities, that federal agencies should address wildfire risks, and that California should regulate emissions from wildfires. These comments fail to identify any specific issue that is germane to our action on the Mojave Desert Marine and Pleasure Craft Coating Operations Rule.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP.

In addition, the EPA is fixing typographical errors in Title 40 of the Code of Federal Regulations, Section 52.220, subparagraph (c)(350)(i). On June 30, 2017, the EPA took final action to approve an updated version of Great Basin Unified Air Pollution Control District Rule 431 into the California SIP (82 FR 29762). In that action, we modified 40 CFR 52.220 by adding subparagraphs (c)(350)(i)(A)(3) and (c)(457)(i). Subparagraph (c)(350)(i)(A)(3) was inadvertently added following subparagraph (c)(350)(i)(B), when these two paragraphs should have been placed in the opposite order. In addition, subparagraph (c)(350)(i)(A)(3) contains the following text “Previously approved on October 31, 2007 in paragraph (c)(350)(i)(A)(1) of this section and now deleted with replacement in paragraph (c)(457)(i)(I)(2) of this section, Rule 431, adopted on December 7, 1990 and revised on December 4, 2006.” The cross-reference to subparagraph (c)(457)(i)(I)(2) is in error and should instead refer to subparagraph (c)(457)(i)(I)(1). Accordingly, in addition to adding new text located in subparagraph (c)(350)(i)(B)(3), we are re-ordering subparagraph (c)(350)(i) and correcting the cross-reference in subparagraph (c)(350)(i)(A)(3) to address these prior mistakes. These changes correct typographical errors, and do not substantively modify the regulatory text.

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

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

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

• 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 (Public Law 104-4);

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

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

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

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

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 13, 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).)

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0516 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 13, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0516, by one of the following methods:

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

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

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

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

In the Federal Register of Thursday, March 23, 2017 (82 FR 14846) (FRL-9957-99), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6E8496) by IR-4 Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.478 be amended by establishing tolerances for residues of the herbicide rimsulfuron, N-[[(4,6-dimethoxy-2-pyrimidinyl)amino] carbonyl]-3-(ethylsulfonyl)-2-pyridinesulfonamide, in or on Berry, low growing, except strawberry, subgroup 13-07H at 0.01 parts per million (ppm); Fruit, citrus, group 10-10 at 0.01 ppm; Fruit, pome, group 11-10 at 0.01 ppm; Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.01 ppm; Fruit, stone, group 12-12 at 0.01 ppm; Nut, tree, group 14-12 at 0.01 ppm; Vegetable, tuberous and corm, subgroup 1C at 0.1 ppm; and tolerances with regional restrictions in or on Fescue, forage at 0.01 ppm; Fescue, hay at 0.01 ppm; Ryegrass, perennial, forage at 0.01 ppm; and Ryegrass, perennial, hay at 0.01 ppm. That document referenced a summary of the petition prepared by E. I. du Pont de Nemours and Company, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA is establishing tolerance levels that vary from what the petition requested. The reason for these changes are explained in Unit IV.C.

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

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

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

The toxicity database indicates that target organs for rimsulfuron are the liver and kidney in the rat and dog, along with the testis and blood in the mouse and dog. In the mouse, the stomach was also a target organ.

Adverse changes in body weight and food consumption were observed in rats, mice and dogs. In subchronic and chronic toxicity studies in rats, toxic effects included decreased body weight, decreased body weight gain, increased relative liver and absolute kidney weights, and diuresis. In the subchronic study in mice, increased red blood cell and hemoglobin, and decreased body weight gain and food efficiency were observed. In the chronic study in mice, decreased body weight, increased incidences of dilation and cysts in the glandular stomach, and degeneration of the testicular artery and tunica albuginea were observed. In the subchronic study in dogs, diuresis was indicated by urinary volume, platelet concentration and kidney weights accompanied by decreased urinary osmolality. In the chronic study in dogs, increased absolute liver and kidney weights, increased seminiferous tubule degeneration, and increased number of spermatid giant cells present in epididymides in males were observed.

In the developmental toxicity study in rats, no toxicity was seen at the highest dose tested (HDT). In the developmental toxicity study in rabbits, and in the 2-generation reproduction toxicity study in rats, developmental/offspring toxicity was seen in the presence of maternal/systemic toxicity and at similar dose levels. There is no quantitative or qualitative evidence of increased susceptibility following pre- and/or post-natal exposures in the developmental and reproduction studies.

There is no indication in the database that rimsulfuron is neurotoxic or immunotoxic. Rimsulfuron is not mutagenic and has been classified as “not likely to be carcinogenic to humans,” based on the lack of evidence for carcinogenicity in studies conducted in rats and mice.

Specific information on the studies received and the nature of the adverse effects caused by rimsulfuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document entitled, “SUBJECT: Rimsulfuron. Human Health Risk Assessment in Support of a Petition (PP#6E8496) for the Establishment of Permanent Tolerances on Tuberous and Corm Vegetable Subgroup 1C, Small Vine Climbing Fruit Except Fuzzy Kiwifruit Subgroup 13-07F, Low Growing Berry Except Strawberry Subgroup 13-07H, Tolerances with Regional Registrations for Ryegrass and Fescue and Crop Group Conversions for Citrus Fruit Group 10-10, Pome Fruit Group 11-10, Stone Fruit Group 12-12, and Tree Nut Group 14-12,” dated May 5, 2017 at pp. 31-34 in docket ID number EPA-HQ-OPP-2016-0516.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

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

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to rimsulfuron, EPA considered exposure under the petitioned-for tolerances as well as all existing rimsulfuron tolerances in 40 CFR 180.478. EPA assessed dietary exposures from rimsulfuron in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for rimsulfuron; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA assumed that rimsulfuron residues were present at tolerance levels in all commodities for which tolerances have been established and currently proposed, and 100 percent crop treated (PCT) with rimsulfuron.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that rimsulfuron does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

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

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for rimsulfuron in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of rimsulfuron. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Pesticides in Flooded Applications Model (PFAM) and the Wisconsin cranberry (worst case) scenario to conduct an assessment of surface water exposure to total toxic residue (TTR) of rimsulfuron (PFAM model was developed specifically for regulatory applications to estimate exposure for pesticides used in flooded agriculture such as rice paddies and cranberry bogs) and Pesticide Root Zone Model Ground Water (PRZM GW) and the Tier I assessment for applications of rimsulfuron to corn in Wisconsin (worst case), the estimated drinking water concentrations (EDWCs) of rimsulfuron for acute exposures are estimated to be 9.59 parts per billion (ppb) for surface water and 22.2 ppb for ground water. Chronic exposures for non-cancer assessments are estimated to be 1.70 ppb for surface water and 19.7 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 19.7 ppb was used to assess the contribution to drinking water.

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

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

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

Rimsulfuron belongs to the class of pesticides known as sulfonylureas (SUs). The SUs share a core chemical structure with varying degrees of structural similarity. In addition, the SUs share a pesticidal mode of action (i.e., the inhibition of acetolactate synthase (ALS)), although the function of ALS in humans is unknown and the relevance of this mode of action (MOA) in humans in unclear. Based on toxicity studies, the SUs do not share a common toxicological profile; instead the target organs vary among the class and are often unspecific, such as changes in body weight or general effects on the liver. Further dividing the SUs into subclasses based on the urea substituent did not result in a clear association of a target organ with any particular substructure.

Based on the weight of the evidence, considering the lack of common toxicological profile of the SUs, the uncertainty in the human relevance of ALS inhibition, and the lack of mammalian MOA data, a testable hypothesis for a common mechanism of action cannot be identified. Therefore, the Agency concludes that no common mechanism of toxicity exists among these pesticides and a cumulative risk assessment (CRA) approach is not appropriate for this class of pesticides. For further explanation, see “SUBJECT: Sulfonylureas: Screening Analysis of Toxicological Profiles to Consider Whether a Candidate Common Mechanism Group Can Be Established”, dated 9/9/2015, found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2016-0516.

For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

2. Prenatal and postnatal sensitivity. In the developmental toxicity study in rats, no developmental toxicity was seen at the highest dose tested. In the developmental toxicity study in rabbits and in the 2-generation reproductive study in rats, developmental and offspring toxicity were seen only in the presence of maternal/systemic toxicity. There is no evidence of quantitative or qualitative increased susceptibility following pre- and/or postnatal exposures to rimsulfuron.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for rimsulfuron is complete.

ii. There is no indication that rimsulfuron is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or increased SF to account for neurotoxicity.

iii. There is no evidence that rimsulfuron results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. No acute toxicological endpoint was identified. The chronic dietary food and drinking water exposure assessment utilizes tolerance-level residues and 100 PCT information for all commodities. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to rimsulfuron in drinking water. These assessments will not underestimate the exposure and risks posed by rimsulfuron.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, rimsulfuron is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to rimsulfuron from food and water will utilize 1.5% of the cPAD for all infants less than 1 year old, the population group receiving the greatest exposure. There are no residential uses for rimsulfuron. Therefore, the chronic aggregate risk is the same as the chronic dietary risk and not of concern.

3. Short- and intermediate-term risks. Short- and intermediate-term aggregate exposures take into account short- and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there is no short- or intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD, no further assessment of short- or intermediate-term risk is necessary.

4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, rimsulfuron is not expected to pose a cancer risk to humans.

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

Adequate enforcement methodology, DuPont method 15033 using high-performance liquid chromatography/electrospray ionization tandem mass spectrometry (HPLC/ESI-MS/MS), is available for determination of residues of rimsulfuron in petitioned-for commodities.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

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

The Codex has not established MRLs for residues of rimsulfuron in/on any commodity associated with this action.

In this final rule, EPA is establishing a crop subgroup tolerance for subgroup 1C (vegetable, tuberous and corm, subgroup 1C) at 0.10 ppm. This subgroup includes the commodity potato, for which a tolerance is currently set at 0.1 ppm. Setting a new tolerance at 0.10 ppm on potato as part of subgroup 1C has a theoretically trade restrictive effect on the import of potatoes, resulting from rounding to significant figures when quantifying residues of rimsulfuron, compared with the current tolerance of 0.1 ppm.

In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures (SPS) Agreement, EPA intends to promptly publish this action with the WTO. Although he subgroup 1C tolerance is being established at 0.10 ppm and is unlikely to impact trade, EPA is establishing an expiration date for the existing potato tolerance following publication of this rule in order to provide a six-month reasonable interval for producers in exporting countries to adapt the modified tolerance. Before that date, residues of rimsulfuron on potato will be permitted under the current tolerance of 0.1 ppm; after that date, residues will need to be in compliance with the new 0.10 ppm subgroup 1C tolerance level.

The tolerance level is appropriate based on available data and residues levels resulting from registered use patterns. The tolerance level for all subgroup 1C commodities is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods. None of the other tolerance actions taken in this rulemaking restrict permissible pesticide residues below currently allowed levels in the United States.

Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocation, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this unit, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that:

1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA.

2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food.

EPA is establishing the tolerance level for “Berry, low growing, except strawberry, subgroup 13-07H” at 0.02 ppm, instead of 0.01 ppm as requested, to fully account for residue loss in the field trial samples during freezer storage from the time of harvest to the time of analysis. Concurrent storage stability samples indicate that as much as half of the residue present in the samples may have been lost between the time of harvest and the time of analysis; therefore, 0.02 ppm (twice LOQ) was selected as the appropriate tolerance for subgroup 13-07H. In addition, the tolerance for subgroup 1C is being established as 0.10 ppm rather than 0.1 ppm to conform with the Agency's practice of using two significant figures.

Therefore, tolerances are established for residues of rimsulfuron, N-[[(4,6-dimethoxy-2-pyrimidinyl)amino] carbonyl]-3-(ethylsulfonyl)-2-pyridinesulfonamide, to be determined by measuring only rimsulfuron, in or on Berry, low growing, except strawberry, subgroup 13-07H at 0.02 ppm; Fruit, citrus, group 10-10 at 0.01 ppm; Fruit, pome, group 11-10 at 0.01 ppm; Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.01 ppm; Fruit, stone, group 12-12 at 0.01 ppm; Nut, tree, group 14-12 at 0.01 ppm; Vegetable, tuberous and corm, subgroup 1C at 0.10 ppm; and tolerances with regional restriction on Fescue, forage at 0.01 ppm; Fescue, hay at 0.01 ppm; Ryegrass, perennial, forage at 0.01 ppm; and Ryegrass, perennial, hay at 0.01 ppm. In addition, the Agency is removing the existing tolerances for “fruit, citrus, group 10”, “fruit, pome, group 11”, “fruit, pome, group 12”, “grape”, “nut, tree, group 14”, and “pistachio” since they are superseded by the tolerances being established in this action. Finally, the Agency is establishing a six-month expiration date for the existing “potato” tolerance at 0.1 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001); Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

A. Why are revisions to state programs necessary?

States which have received final authorization from EPA under RCRA Section 3006(b) of RCRA, 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and request EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279.

We conclude that Ohio's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are granting Ohio final authorization to operate its hazardous waste program with the changes described in the authorization application. Ohio will have responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Ohio, including issuing permits, until the state is granted authorization to do so.

This final rule requires all facilities in Ohio that are subject to RCRA to comply with the newly-authorized state requirements instead of the equivalent Federal requirements. Ohio has enforcement responsibilities under its state hazardous waste program for RCRA violations, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include among others, authority for EPA to:

1. Conduct inspections which may include but are not limited to requiring monitoring, tests, analyses and/or reports;

2. Enforce RCRA requirements which may include but are not limited to suspending, terminating, modifying and/or revoking permits; and

3. Take enforcement actions regardless of whether the state has taken its own actions.

The action to approve these revisions will not impose additional requirements on the regulated community because the regulations for which Ohio is requesting authorization are already effective under state law, and will not be changed by the act of authorization.

On September 15, 2017 (82 FR 43316), EPA proposed to authorize these changes to Ohio's hazardous waste program and opened the decision to public comment. The Agency received no comments on this proposal. EPA has determined that Ohio's application satisfies the requirements for authorization set forth in RCRA Section 3006(b) and 40 CFR part 271.

Ohio initially received final authorization on June 28, 1989, effective June 30, 1989 (54 FR 27170, June 28, 1989) to implement the RCRA hazardous waste management program. Subsequently the EPA granted authorization for changes to the Ohio program effective June 7, 1991 (56 FR 14203, April 8, 1991) as corrected June 19, 1991, effective August 19, 1991 (56 FR 28088); effective September 25, 1995 (60 FR 38502. July 27, 1995); effective December 23, 1996 (61 FR 54950, October 23, 1996); effective January 24, 2003 (68 FR 3429, January 24, 2003); effective January 20, 2006, (71 FR 3220, January 20, 2006); effective October 29, 2007, (72 FR 61063, October 29, 2007), and effective March 19, 2012 (77 FR 25966, March 19, 2012).

On June 13, 2017, Ohio submitted a final program revision application, seeking authorization of changes in accordance with 40 CFR 271.21. We have determined that Ohio's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final Authorization. Therefore, we are granting Ohio Final Authorization for the following program changes (a table with the complete state analogues is provided in the September 15, 2017 proposed rule):

Equivalent State Initiated Changes:

Ohio has excluded the non-delegable federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3. EPA will continue to implement those requirements.

Only recently receiving the statutory authority, Ohio has not adopted the rules for Subparts AA, BB and CC of 40 CFR part 264. Until Ohio is authorized for such rules, the federal rules at 40 CFR part 264 subpart AA, BB and CC and Part 265 subpart AA, BB and CC, which are promulgated under HSWA, still apply in Ohio. On July 14, 2006, U.S. EPA issued a rule making several hundred corrections to errors that had appeared in the Code of Federal Regulations (checklist 214). Ohio broke these corrections into several rule makings. Ohio was authorized for several of these rule corrections on March 19, 2012. In addition, a number of the corrections had already been made in the state rules. This action authorizes several more of the corrections that appear in the EPA rulemaking of July 14, 2006.

Broader in Scope Rules:

Ohio recently promulgated regulations adding Antifreeze, Aerosol Cans and Paint Wastes to its list of Universal Wastes and now regulates such wastes under state law. Ohio EPA's application did not include these additions, however, and EPA does not address them in this action.

Ohio will issue permits for the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issues prior to the effective date of the proposed authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of the authorization. EPA will continue to implement and issue permits for HSWA requirements for which Ohio is not yet authorized.

Ohio is not authorized to carry out its hazardous waste program in “Indian Country,” as defined in 18 U.S.C. 1151. Indian Country includes:

1. All lands within the exterior boundaries of Indian Reservations within or abutting the State of Ohio;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation that qualifies as Indian Country.

Therefore, this action has no effect on Indian Country. EPA retains the authority to implement and administer the RCRA program on these lands.

Codification is the process of placing the state's statutes and regulations that comprise the state's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized state rules in 40 CFR part 272. Ohio's authorized rules, up to and including those revised June 7, 1991, have previously been codified through the incorporation-by-reference effective February 4, 1992 (57 FR 4162). We reserve the amendment of 40 CFR part 272, subpart KK for the codification of Ohio's program changes until a later date.

This final rule only authorizes hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by state law (see SUPPLEMENTARY INFORMATION, Section A. Why are Revisions to State Programs Necessary?). Therefore, this rule complies with applicable executive orders and statutory provisions as follows:

The Office of Management and Budget has exempted this rule from its review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821 January 21, 2011).

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

This rule authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those required by state law. Accordingly, I certify that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this proposed rule because it will not have federalism implications (i.e., 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).

Executive Order 13175 (65 FR 67249, November 9, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, or 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).

This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866 and because the EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action as defined in Executive Order 12866.

EPA approves state programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a state program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this proposed rule.

As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of these rules in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order.

Because this rulemaking proposes authorization of pre-existing state rules and imposes no additional requirements beyond those imposed by state law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994).

This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's final authorization of Ohio's revised hazardous program under RCRA are exempted under Executive Order 12866.

EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until sixty (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). This final authorization will be effective February 12, 2018.

This notification is accessible via the internet at the Office of the Federal Register's website at http://www.thefederalregister.org/fdsys/search/home.action. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.

Pacific whiting (Merluccius productus) is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) and a relatively short life span when compared to other groundfish species. Pacific whiting has the largest (by volume) annual allowable harvest levels of the more than 90 groundfish species managed under the Pacific Coast Groundfish Fishery Management Plan (FMP), which governs the groundfish fishery off Washington, Oregon, and California. The coastwide Pacific whiting stock is managed jointly by the United States (U.S.) and Canada, and mature Pacific whiting are commonly available to vessels operating in U.S. waters from April through December. Background on the stock assessment for and the establishment of the 2017 Total Allowable Catch (TAC) for Pacific whiting is provided in the final rule for the 2017 Pacific whiting harvest specifications, published May 8, 2017 (82 FR 21317). Pacific whiting is allocated to the Pacific Coast treaty tribes (tribal fishery), and to three non-tribal commercial sectors: The Catcher Processor cooperative (C/P Coop), the Mothership Cooperative (MS Coop), and the Shorebased Individual Fishery Quota (IFQ) Program.

This notification announces the reapportionment of 41,000 mt of Pacific whiting from the tribal allocation to the non-tribal commercial sectors on September 15, 2017. Regulations at § 660.131(h) contain provisions that allow the Regional Administrator to reapportion Pacific whiting from the tribal allocation, specified at § 660.50, that will not be harvested by the end of the fishing year to other sectors.

For 2017, the Pacific Coast treaty tribes were allocated 77,251 mt of Pacific whiting. The best available information in early September 2017 indicated that there had been no annual harvest by the tribes to date, and at least 41,000 mt of the tribal allocation would not be harvested by December 31, 2017. To allow for increased utilization of the resource, NMFS reapportioned 41,000 mt on September 15, 2017 from the Tribal fisheries to the Shorebased IFQ Program, C/P Coop, and MS Coop. The reapportionment occurred in proportion to each sector's original allocation. Reapportioning this amount was expected to allow for greater attainment of the TAC while not limiting tribal harvest opportunities for the remainder of the year. On September 15, 2017, emails sent directly to fishing businesses and individuals, and postings on the West Coast Region's internet site were used to provide actual notice to the affected fishers. Reapportionment was effective the same day as the notice.

Amounts of Pacific whiting available for 2017 before and after the reapportionment were:

Widow rockfish (Sebastes entomelas) range from Albatross Bank off Kodiak Island, Alaska to Todos Santos Bay, Baja California, Mexico. They are an important commercial species from British Columbia to central California. Off the West Coast of the U.S., widow rockfish are caught mostly in midwater trawls used to target Pacific whiting, although in recent years there's been a reemergence of the pelagic rockfish fishery for widow, chilipepper, and yellowtail. The widow stock is managed coastwide, and was declared overfished in 2001. As of the 2015 stock assessment the stock has been rebuilt to 75.1 percent depletion. Management uncertainty is low since widow rockfish is a trawl-dominant species and there is mandatory 100 percent observer coverage in the trawl IFQ fisheries.

In accordance with the FMP, the non-tribal limited entry groundfish trawl fishery is allocated 91 percent of the widow rockfish ACL with the remaining 9 percent going to non-tribal non-trawl commercial, and recreational fisheries. The allocation for widow rockfish is split between the at-sea and shorebased sectors in accordance with an allocation formula established under Amendment 21 to the FMP. Under this formula, the greater of 10 percent or 500 mt of the trawl fishery allocation is allocated to all Pacific whiting sectors (at-sea and shorebased) with the remainder going to the non-whiting portion of the Shorebased IFQ Program. Of the amount allocated to the Pacific whiting sectors, 42 percent is allocated to the Shorebased IFQ Program. This 42 percent is combined with the remainder that went to the non-whiting portion of the Shorebased IFQ Program to create a single allocation for the Shorebased IFQ Program. Further information on the 2017 allocations for widow rockfish is provided in the final rule for the 2017-2018 biennial specifications for the Pacific coast groundfish fishery, which published on February 7, 2017 (82 FR 9634).

This notification announces the reapportionment of 47 mt of widow rockfish from the C/P Coop allocation to the MS Coop that was effective on August 30, 2017. Regulations at § 660.60(d) contain provisions that allow the Regional Administrator to reapportion non-whiting groundfish species between the C/P and MS cooperatives.

For 2017, the C/P Coop was allocated 411.2 mt of widow rockfish, while the MS Coop was allocated 290.3 mt. On August 14, 2017 the MS Coop submitted a cease fishing report to NMFS indicating that they do not intend to use 47 mt of their allocation of widow rockfish which is therefore available to redistribute to the C/P Coop. The MS Coop indicated that they will cease fishing for Pacific whiting for the remainder of 2017 upon harvesting all Pacific whiting quota available to that cooperative, or harvesting the remaining 243.3 mt of widow rockfish, whichever occurs first.

As of August 23, 2017, the best available information indicated that the MS Coop of the Pacific whiting fishery had taken only seven percent of its 2017 widow rockfish allocation of 290.3 mt. At the same time, the C/P Coop had taken more than 50 percent of its 2017 allocation of 411.2 mt. Therefore, on August 30, 2017, NMFS reapportioned 47 mt widow rockfish from the MS Coop to the C/P Coop. Emails sent directly to fishing businesses and individuals and postings on the West Coast Region's internet site on August 30, 2017, were used to provide actual notice to the affected fishers. Reapportionment was effective the same day as the notice.

Reapportionment of unused portions of non-whiting groundfish species between the MS Coop and the C/P Coop of the Pacific whiting fishery when participants in the one cooperative do not intend to harvest the remaining allocation, are described at § 660.150(c)(4)(ii). This reapportionment was expected to allow for the Pacific whiting fishery to continue for a longer period without the C/P Coop exceeding its 2017 allocation of widow rockfish and reduce the risk of the C/P Coop not attaining its Pacific whiting allocation based on incidental catch of widow rockfish.

Amounts of widow rockfish available for 2017 before and after the reapportionment were:

The Assistant Administrator for NMFS's Sustainable Fisheries finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B) because such notification would be impracticable and contrary to the public interest. As previously noted, actual notice of the reapportionments was provided to fishers at the times of the actions. Prior notice and opportunity for public comment on these reapportionments was impracticable because NMFS had insufficient time to provide prior notice and the opportunity for public comment between the time the information about the progress of the fishery needed to make this determination became available and the time at which fishery modifications had to be implemented in order to allow fishers access to the available fish during the remainder of the fishing season. For the same reasons, the AA also finds good cause to waive the 30-day delay in effectiveness for these actions, required under 5 U.S.C. 553(d)(3).

These actions are authorized by §§ 660.55(i), 660.60(d), 660.131(h), and 660.150(c)(4)(ii) and are exempt from review under Executive Order 12866.