Federal Register Vol. 83, No.93,

Prior documents in this proceeding include: A proposed rule published in the Federal Register on January 18, 2017 (82 FR 5746), which provided a 60-day comment period that ended on March 20, 2017. On February 27, 2017, a document was published in the Federal Register that extended the comment period until April 19, 2017 (82 FR 11854).

The 1996 Act authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. Section 10004 of the Agricultural Act of 2014 (2014 Farm Bill) (Pub. L. 113-79) amended section 501 of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 7401), which authorizes generic commodity promotion programs under the various commodity promotion laws, to allow for an organic commodity promotion order.

On May 15, 2015, USDA received a proposal for a national research and promotion program for certified organic products from OTA. OTA is a membership-based trade organization representing growers, processors, certifiers, farmers associations, distributors, importers, exporters, consultants, retailers, and others involved in the organic sector.

OTA proposed a program that would be financed by an assessment on certified organic products and administered by a board of industry members selected by the Secretary of Agriculture. The purpose of the program would be to strengthen the position of certified organic products in the marketplace, support research to benefit the organic industry, and improve access to information and data across the organic sector.

A proposed rule consisting of OTA's proposal was published in the Federal Register on January 18, 2017 (82 FR 5746), which provided a 60-day comment period that ended on March 20, 2017. On February 27, 2017, a document was published in the Federal Register that extended the comment period until April 19, 2017 (82 FR 11854). The proposed rule included a request for comments on substantive aspects of the proposed program, including the support for, and method of, assessing imports; the approach for calculating assessments including how “dual-covered commodities” would be handled; and the de minimis exemption level.

In response to the proposed rule, USDA received almost 15,000 comments. The comments revealed that there is a split within the industry in terms of support for the proposed program. While some comments voiced support for a collective industry program, other comments stated that industry was not aligned in backing the proposal. Opponents raised concerns about the proposed program, including how the de minimis level would eliminate a majority of organic farmers from the program; the disproportionate impact on high value commodities as assessments would be tied to sales value; whether organic promotion is possible without being disparaging to other agricultural commodities; voting methodology; financial burden on small entities to comply; and cited the challenges to tracing imported organic products. Both those in support of, and those in opposition to the proposed program requested changes to the method of assessment for imports and a reduction in the paperwork burden on covered entities. Other outstanding significant issues with the proposal are the assessment of non-food products and products “made with (specified ingredients)”.

Research and promotion programs are brought about by collective and united industry action. The comments received on the proposed organic program disclosed divergent views within the organic industry. Based on uncertain industry support for and unresolved issues with the proposed program, USDA is terminating the proceeding. This action also terminates the rulemaking procedure on the proposed referendum procedures (82 FR 5438).

Termination of this rulemaking proceeding will remove ex parte communication prohibitions and allow USDA to engage fully with all interested parties to discuss and consider the evolving needs of the industry going forward. Based on the above, USDA is terminating this rulemaking proceeding.

As part of the proceeding conducted for this rulemaking, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601-612) and the Paperwork Reduction Act of 1955 (44 U.S.C. Chapter 35) were considered. Because this action terminates the underlying rulemaking proceeding, the economic conditions of small entities are not changed as a result of this action, nor have any compliance requirements changed. Also, this action does not provide for any new or changed reporting and recordkeeping requirements. Accordingly, all supporting forms for the proposed program will be withdrawn.

In view of the foregoing, it is hereby determined that the rulemaking proceeding proposing to establish a national research and promotion program for certified organic products should be and is hereby terminated.

Certification of the Gulfstream Model GVII-G500 series airplanes is currently scheduled for July 2018. Because a delay in design approval would significantly affect the certification of the airplane and thus delivery of the airplane, we are shortening the public-comment period to 20 days.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On June 30, 2013, Gulfstream Aerospace Corporation applied for a type certificate for its new Model GVII-G500 series airplane. The Gulfstream Model GVII-G500 series airplane will be a business jet with seating for up to 19 passengers. It will incorporate a low, swept-wing design with a T-tail. The powerplant will consist of two aft-fuselage-mounted turbofan engines. The Gulfstream Model GVII-G500 series airplane's maximum takeoff weight will be approximately 79,600 lbs.

The high incidence protection system prevents the airplane from stalling at low speeds and, therefore, a stall warning system is not needed during normal flight conditions.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, Gulfstream Aerospace Corporation must show that the Model GVII-G500 series airplane meets the applicable provisions of 14 CFR part 25, as amended by amendments 25-1 through 25-137.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Gulfstream Model GVII-G500 series airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVII-G500 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

The Gulfstream Model GVII-G500 series airplane will incorporate the following novel or unusual design feature: A high incidence protection system, which limits the angle of attack at which the airplane can be flown during normal low speed operation, prohibits the airplane from stalling, and cannot be overridden by the flightcrew. The application of this angle of attack limit influences the stall speed determination, stall characteristics, stall warning demonstration, and longitudinal handling characteristics of the airplane. Existing airworthiness regulations do not contain adequate standards to address this feature.

The high incidence protection system prevents the airplane from stalling at low speeds and, therefore, a stall warning system is not needed during normal flight conditions. However, during failures, which are not shown to be extremely improbable, the requirements of §§ 25.203 and 25.207 apply, although slightly modified by these conditions. If there are failures of the high incidence protection system that are not shown to be extremely improbable, the flight characteristics at the angle of attack for CLMAX must be suitable in the traditional sense, and stall warning must be provided in a conventional manner.

Part I of the following special conditions is in lieu of §§ 25.21(b), 25.103, 25.145(a), 25.145(b)(6), 25.175(c) and (d), 25.201, 25.203, 25.207, and 25.1323(d). Part II is in lieu of §§ 25.21(g)(1), 25.105(a)(2)(i), 25.107(c) and (g), 25.121(b)(2)(ii)(A), 25.121(c)(2)(ii)(A), 25.121(d)(2)(ii), 25.123(b)(2)(i), 25.125(b)(2)(ii)(B), and 25.143(j).

These proposed special conditions address this novel or unusual design feature on the Gulfstream Model GVII-G500 airplane, and contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These proposed special conditions are different from special conditions previously issued on this topic. In Part 1, sections 3.b.iv., 3.b.vi., 3.e.vi., 5.a.i.1., 5.a.i.4., 5.a.i.6., 5.a.i.7., 5.c.i.4., 5.c.i.5., 5.c.i.6, 5.c.ii.4., and 5.cii.5., previously used verbiage was updated to reflect language recommended in the ARAC Flight Test Harmonization Working Group (FTHWG) Phase 2 report. This language more accurately describes the actions required and formulas to be used to obtain the required result. In Part 1, sections 3.b.ii and 5.a.ii.4., the ARAC FTHWG language was adapted to reflect specific Gulfstream design features.

In several previous special conditions on this subject, we used the nomenclature VCLMAX. To avoid confusion with previous Gulfstream special conditions, we have changed the nomenclature to VCLMAX Demo to highlight a difference. The difference is not significant, but the change in nomenclature was considered clarifying and therefore was adopted in this instance.

As discussed above, these special conditions are applicable to the Gulfstream Model GVII-G500 series airplanes. Should Gulfstream Aerospace Corporation apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on Gulfstream Model GVII-G500 series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Gulfstream Model GVII-G500 series airplanes.

In the following sections, “in icing conditions,” means with ice accretions (relative to the relevant flight phase) as defined in appendix C to part 25, at amendment 25-121.

These special conditions use terminology that does not appear in 14 CFR part 25. For the purpose of these special conditions, the following terms describe certain aspects of this novel or unusual design feature:

A system that operates directly and automatically on the airplane's flight controls to limit the maximum angle of attack that can be attained to a value below that at which an aerodynamic stall would occur.

The maximum angle of attack at which an airplane stabilizes with the high incidence protection system operating and the longitudinal control held on its aft stop.

The minimum steady flight speed in the airplane's configuration under consideration with the high incidence protection system operating. See Part I, Section 3, “Minimum Steady Flight Speed and Reference Stall Speed,” of these special conditions.

VMIN corrected to 1g acceleration of gravity conditions. See Part I, Section 3, “Minimum Steady Flight Speed and Reference Stall Speed,” of these special conditions. This is the minimum calibrated airspeed at which the airplane can develop a lift force normal to the flight path and equal to its weight when at an angle of attack not greater than that determined for VMIN.

The applicant must establish the capability and reliability of the high incidence protection system. The applicant may establish this capability and reliability by flight testing, simulation, or analysis as appropriate. The capability and reliability required are:

a. It must not be possible to encounter a stall during the pilot-induced maneuvers required by Part I, section 5(a), “High Incidence Handling Demonstrations,” and the handling characteristics must be acceptable as required by Part I, section 5(b), “Characteristics in High Incidence Maneuvers” of these special conditions;

b. The airplane must be protected against stalling due to the effects of wind shears and gusts at low speeds as required by Section 6, “Atmospheric Disturbances” of these special conditions;

c. The ability of the high incidence protection system to accommodate any reduction in stalling incidence must be verified in icing conditions;

d. The high incidence protection system must be provided in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures; and

e. The reliability of the system and the effects of failures must be acceptable in accordance with § 25.1309.

In lieu of § 25.103, “Stall speed,” the following applies:

a. The minimum steady flight speed, VMIN, is the final, stabilized, calibrated airspeed obtained when an airplane is decelerated until the longitudinal control is on its stop in such a way that the entry rate does not exceed 1 knot per second.

b. The minimum steady flight speed, VMIN, must be determined in icing and non-icing conditions with:

i. The high incidence protection system operating normally;

ii. Idle thrust;

iii. All combinations of flap settings and landing gear positions for which VMIN is required to be determined;

iv. The weight used when the reference stall speed, VSR, is used as a factor to determine compliance with a required performance standard;

v. The most unfavorable center of gravity (CG) allowable; and

vi. The airplane trimmed for straight flight at a speed selected by the applicant, but not less than 1.13 VSR and not greater than 1.3 VSR.

c. The 1g minimum steady flight speed, VMIN1g, is the minimum calibrated airspeed at which an airplane can develop a lift force (normal to the flight path) equal to its weight, while at an angle of attack not greater than that at which the minimum steady flight speed referenced in section 3(a) of this special condition is determined. These minimum calibrated airspeeds must be determined for both icing and non-icing conditions.

d. The reference stall speed, VSR, is a calibrated airspeed defined by the applicant. VSR may not be less than a 1g stall speed. VSR must be determined in non-icing conditions and expressed as:

e. VCLMAX Demo is determined in non-icing conditions with:

i. Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed;

ii. The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which VSR is being used;

iii. The weight used when VSR is being used as a factor to determine compliance with a required performance standard;

iv. The CG position that results in the highest value of the reference stall speed;

v. The airplane trimmed for straight flight at a speed selected by the applicant, but not less than 1.13 VSR and not greater than 1.3 VSR;

vi. At the option of the applicant, the high incidence protection system can be disabled or adjusted to allow full development of the maneuver to the angle of attack corresponding to VSR; and

vii. Starting from the stabilized trim condition, with an application of the longitudinal control to decelerate the airplane so that the speed reduction does not exceed 1 knot per second.

In lieu of § 25.207, the following apply:

If the design meets all conditions of Part I, section 2 of these special conditions, then the airplane need not provide stall warning during normal operation. The conditions of Part I, section 2 provide a level of safety equal to the intent of § 25.207, “Stall warning,” so the provision of an additional, unique warning device for normal operations is not required.

For any failures of the high incidence protection system that the applicant cannot show to be extremely improbable, and that result in the capability of the system no longer satisfying any part of sections 2(a), (b), and (c) of Part I of these special conditions: The design must provide stall warning that protects against encountering unacceptable characteristics and against encountering stall.

i. This stall warning, with the flaps and landing gear in any normal position, must be clear and distinctive to the pilot, and must meet the requirements specified in sections 4(b)(iv) and 4(b)(v) of Part I of these special conditions.

ii. The design must also provide this stall warning in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures.

iii. The design may furnish this stall warning either through the inherent aerodynamic qualities of the airplane or by a device that will provide clearly distinguishable indications to the flightcrew under all expected conditions of flight. However, a visual stall warning device that requires the attention of the flightcrew within the flight deck is not acceptable by itself. If a warning device is used, it must provide a warning in each of the airplane configurations prescribed in section 4(b)(i), above, and for the conditions prescribed in sections 4(b)(iv) and 4(b)(v) of Part I of these special conditions.

iv. In non-icing conditions, the stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall in the following conditions:

1. In power-off straight deceleration not exceeding 1 knot per second to a speed of 5 knots or 5 percent calibrated airspeed (CAS), whichever is greater, below the warning onset; and

2. In turning flight, stall deceleration at entry rates up to 3 knots per second when recovery is initiated not less than 1 second after the warning onset.

v. In icing conditions, the stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall in power-off straight and turning flight decelerations not exceeding 1 knot per second, when the pilot starts a recovery maneuver not less than three seconds after the onset of stall warning.

vi. An airplane is considered stalled when the behavior of the airplane gives the pilot a clear, distinctive, and acceptable indication that the airplane is stalled. Acceptable indications of a stall, occurring either individually or in combination, are:

1. A nose-down pitch that cannot be readily arrested;

2. Buffeting of a magnitude and severity that is strong and thereby an effective deterrent to further speed reduction; or

3. The pitch control reaches the aft stop, and no further increase in pitch attitude occurs when the control is held full aft for a short time before recovery is initiated.

vii. An airplane exhibits unacceptable characteristics during straight or turning flight decelerations if it is not always possible to produce and to correct roll and yaw by unreversed use of aileron and rudder controls, or abnormal nose-up pitching occurs.

In lieu of § 25.201, “Stall demonstration,” the following is required:

i. Maneuvers to the limit of the longitudinal control, in the nose-up sense, must be demonstrated in straight flight and in 30-degree banked turns with:

1. The high incidence protection system operating normally;

2. Initial power conditions of:

a. Power off; and

b. Power necessary to maintain level flight at 1.5 VSR1, where VSR1 is the reference stall speed with flaps in approach position, landing gear retracted, and maximum landing weight;

3. None;

4. Flaps, landing gear, and deceleration devices in any likely combination of positions not prohibited by the airplane flight manual (AFM);

5. Representative weights within the range for which certification is requested;

6. The most adverse CG for recovery; and

7. The airplane trimmed for straight flight at the speed prescribed in section 3(e)(v) of these special conditions.

ii. The following procedures must be used to show compliance in non-icing and icing conditions:

1. Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed 1 knot per second until the control reaches the stop.

2. The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition, and must then be recovered by normal recovery techniques.

3. Maneuvers with increased deceleration rates:

a. In non-icing conditions, the requirements must also be met with increased rates of entry to the incidence limit, up to the maximum rate achievable.

b. In icing conditions, with the anti-ice system working normally, the requirements must also be met with increased rates of entry to the incidence limit, up to three knots per second.

4. Maneuvers with ice accretion prior to normal operation of the ice protection system:

For flight in icing conditions before the ice protection system has been activated and is performing its intended function, the handling demonstration requirements identified in section 5(a)(i) must be satisfied using the procedures specified in sections 5(a)(ii)(1) and 5(a)(ii)(2) of these special conditions. The airplane configurations required to be tested must be in accordance with the limitations and procedures for operating the ice protection system provided in the AFM, per § 25.21(g)(1), as modified by and Part II of these special conditions.

In lieu of § 25.203, “Stall characteristics,” the following apply:

i. Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30-degree banked turns, the airplane's characteristics must be as follows:

1. There must not be any abnormal nose-up pitching;

2. There must not be any uncommanded nose-down pitching, which would be indicative of stall. However, reasonable attitude changes associated with stabilizing the incidence at Alpha limit, as the longitudinal control reaches the stop would be acceptable;

3. There must not be any uncommanded lateral or directional motion, and the pilot must retain good lateral and directional control by conventional use of the controls throughout the maneuver; and

4. The airplane must not exhibit buffeting of a magnitude and severity that would act as a deterrent from completing the maneuver specified in section 5(a)(i) of these special conditions.

ii. In maneuvers with increased rates of deceleration, some degradation of characteristics is acceptable, associated with a transient excursion beyond the stabilized Alpha limit. However, the airplane must not exhibit dangerous characteristics or characteristics that would deter the pilot from holding the longitudinal control on the stop for a period of time appropriate to the maneuver.

iii. It must always be possible for flightcrew to reduce incidence by conventional use of the controls.

iv. The rate at which the airplane can be maneuvered from trim speeds, associated with scheduled operating speeds such as V2 and VREF up to Alpha limit, must not be unduly damped or be significantly slower than can be achieved on conventionally controlled transport airplanes.

In addition to the requirements in section 5(b) of this special condition, the following requirements apply:

i. In non-icing conditions, maneuvers with a rate of deceleration of not more than 1 knot per second, up to the angle of attack corresponding to VSR obtained using sections 3(d) and (e) of this special condition, must be demonstrated in straight flight and in 30-degree banked turns in the following configurations:

1. The high incidence protection system deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;

2. Automatic-thrust-increase system inhibited (if applicable);

3. Engines idling;

4. Flaps, landing gear, and deceleration devices in any likely combination of positions not prohibited by the AFM;

5. The most adverse CG for recovery; and

6. The airplane trimmed for straight flight at the speed prescribed in section 3(e)(v) of this special condition.

ii. In icing conditions, maneuvers with a rate of deceleration of not more than 1 knot per second up to the maximum angle of attack reached during maneuvers from section 5(a)(ii)(3)(b) must be demonstrated in straight flight with:

1. The high incidence protection system deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;

2. Automatic-thrust-increase system inhibited (if applicable);

3. Engines idling;

4. Flaps, landing gear, and deceleration devices in any likely combination of positions not prohibited by the AFM;

5. The most adverse CG for recovery; and

6. The airplane trimmed for straight flight at the speed prescribed in section 3(e)(v) of this special condition.

iii. During the maneuvers used to show compliance with sections 5(c)(i) and 5(c)(ii) of Part I of these special conditions, the airplane must not exhibit dangerous characteristics and it must always be possible for flightcrew to reduce angle of attack by conventional use of the controls. The pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.

Operation of the high incidence protection system must not adversely affect airplane control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of wind shear. This must be demonstrated in non-icing and icing conditions.

Add the following requirement to that of § 25.21:

(b) The flying qualities will be evaluated at the most unfavorable CG position.

1. In lieu of § 25.21(g)(1), the following applies:

(g) The requirements of this subpart associated with icing conditions apply only if certification for flight in icing conditions is desired. If certification for flight in icing conditions is desired, the following requirements also apply (see AC 25-25):

(1) Each requirement of this subpart, except §§ 25.121(a), 25.123(c), 25.143(b)(1) and (b)(2), 25.149, 25.201(c)(2), 25.207(c) and (d), and 25.251(b) through (e), must be met in icing conditions. Compliance must be shown using the ice accretions defined in appendix C to part 25, assuming normal operation of the airplane and its ice protection system in accordance with the operating limitations and operating procedures established by the applicant and provided in the Airplane Flight Manual.

2. In lieu of § 25.103, “Stall speed,” define the stall speed as provided in Special Conditions Part I, section 3, “Minimum Steady Flight Speed and Reference Stall Speed.”

3. In lieu of § 25.105(a)(2)(i) to read as follows:

(2) In icing conditions, if in the configuration of § 25.121(b) with the “Takeoff Ice” accretion defined in appendix C to part 25:

(i) the V2 speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the takeoff configuration, or

4. In lieu of § 25.107(c) and (g), the following apply, with additional sections (c') and (g'):

(c) In non-icing conditions, V2, in terms of calibrated airspeed, must be selected by the applicant to provide at least the gradient of climb required by § 25.121(b) but may not be less than—

1. V2MIN;

2. VR plus the speed increment attained (in accordance with § 25.111(c)(2)) before reaching a height of 35 feet above the takeoff surface; and

3. A speed that provides the maneuvering capability specified in § 25.143(h).

(c') In icing conditions with the “Takeoff Ice” accretion defined in appendix C to part 25, V2 may not be less than—

1. The V2 speed determined in non-icing conditions.

2. A speed that provides the maneuvering capability specified in § 25.143(h).

(g) In non-icing conditions, VFTO, in terms of calibrated airspeed, must be selected by the applicant to provide at least the gradient of climb required by § 25.121(c), but may not be less than—

1. 1.18 VSR; and

2. A speed that provides the maneuvering capability specified in § 25.143(h).

(g') In icing conditions with the “Final Takeoff Ice” accretion defined in appendix C to part 25, VFTO may not be less than—

1. The VFTO speed determined in non-icing conditions.

2. A speed that provides the maneuvering capability specified in § 25.143(h).

5. In lieu of §§ 25.121(b)(2)(ii)(A), 25.121(c)(2)(ii)(A), and 25.121(d)(2)(ii), the following apply:

§ 25.121 Climb: One-engine inoperative:

(b) Takeoff; landing gear retracted. In the takeoff configuration existing at the point of the flight path at which the landing gear is fully retracted, and in the configuration used in § 25.111, but without ground effect,

* * *

2. The requirements of subparagraph (b)(1) of this section must be met:

* * *

(ii) In icing conditions with the “Takeoff Ice” accretion defined in appendix C of part 25, if in the configuration of § 25.121(b) with the “Takeoff Ice” accretion:

(A) The V2 speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the takeoff configuration; or

(c) Final takeoff. In the en route configuration at the end of the takeoff path determined in accordance with § 25.111:

* * *

2. The requirements of subparagraph (c)(1) of this section must be met:

* * *

(ii) In icing conditions with the “Final Takeoff Ice” accretion defined in appendix C of part 25, if:

(A) The VFTO speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the en route configuration; or

(d) Approach. In a configuration corresponding to the normal all-engines operating procedure in which VSR for this configuration does not exceed 110 percent of the VSR for the related all-engines-operating landing configuration:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0364; Product Identifier 2017-NM-154-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0204, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 and A310 series airplanes, and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The MCAI states:

This NPRM would require revising the maintenance or inspection program to incorporate certain maintenance requirements and airworthiness limitations. The unsafe condition is fatigue damage in principal structural elements, which could result in reduced structural integrity of the airplane. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0364.

This NPRM would not supersede AD 2015-22-05. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program, as applicable, to incorporate maintenance requirements and/or airworthiness limitations that are newer or more restrictive than those required by AD 2015-22-05. Accomplishment of the proposed actions would then terminate all requirements of AD 2015-22-05.

Airbus has issued the following service information, which describes procedures for revising the maintenance or inspection program to incorporate new or more restrictive maintenance requirements and airworthiness limitations. These documents are distinct since they apply to different airplane models.

• For Model A300 series airplanes: Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL-ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A300 Airworthiness Limitations Section (ALS).

• For Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes): Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL-ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A300-600 Airworthiness Limitations Section (ALS).

• For Model A310 series airplanes: Section 4, “Life Limits (LL)/Demonstrated Fatigue Lives (DF),” of Part 1, “Safe Life Airworthiness Limitation Items (SL-ALI),” Revision 02, dated August 28, 2017, of the Airbus Model A310 Airworthiness Limitations Section (ALS).

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

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

This proposed AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.

We estimate that this proposed AD affects 132 airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0365; Product Identifier 2017-NM-155-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0203, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes), and Model A310 series airplanes. The MCAI states:

This NPRM would require revising the maintenance or inspection program to incorporate certain maintenance requirements and airworthiness limitations. We are issuing this AD to prevent safety-significant latent failures that would, in combination with one or more other specific failures or events, result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0365.

This NPRM would not supersede AD 2015-08-06. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program, as applicable, to incorporate new or more restrictive maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2015-08-06.

Airbus has issued A300-600 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017, and A310 Airworthiness Limitations Section (ALS) Part 3, Certification Maintenance Requirements (CMR), Revision 01, dated August 28, 2017. This service information describes mandatory maintenance tasks that operators must perform at specified intervals. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.

We estimate that this proposed AD affects 127 airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

In the Federal Register of November 16, 1988 (53 FR 46204), FDA published a proposed rule in the form of a TFM that proposed conditions under which OTC IAAA drug products would be generally recognized as safe and effective and not misbranded. On August 21, 2002 (67 FR 54139), FDA published a proposed rule that would have amended that TFM to include ibuprofen as a proposed GRASE analgesic/antipyretic active ingredient for OTC use. The 2002 proposed rule, if finalized, would have allowed manufacturers to market ibuprofen drug products for OTC use without submission of a new drug application (NDA), if all conditions of the monograph and other requirements were satisfied. At that time, ibuprofen drug products were marketed OTC under NDAs or abbreviated new drug applications (ANDAs) approved by FDA. This is still the case today—all ibuprofen drug products in the OTC marketplace are covered by NDAs or ANDAs. FDA is not aware of any ibuprofen drug products marketed under the TFM.

In the same 2002 proposed rule, the Agency proposed to update FDA regulations in 21 CFR part 201 to include consistent pregnancy and allergy warnings for OTC IAAA drug products containing nonsteroidal anti-inflammatory active ingredients. This proposal, if finalized, would update pregnancy, allergy, and asthma statements required in the labeling of certain IAAA products. FDA is not withdrawing that part of the proposed rule.

On September 20, 2002, FDA held a meeting of the Nonprescription Drugs Advisory Committee to discuss safety issues related to the use of aspirin and other OTC nonsteroidal anti-inflammatory drugs (NSAIDs), including ibuprofen.1 Safety issues discussed included stomach bleeding. As a result of this meeting and subsequent FDA review of the data and additional comments submitted to the public docket (see Docket No. FDA-1977-N-0025), all OTC ibuprofen products marketed under NDAs and ANDAs bear warnings about gastrointestinal bleeding. Warnings state that the risk of bleeding is higher in persons who are age 60 or older, have stomach ulcers or bleeding problems, take a blood thinning (anticoagulant) or steroid drug, take other drugs containing prescription or nonprescription nonsteroidal anti-inflammatory drugs (NSAIDs), have three or more alcoholic drinks every day, or who take more or for a longer time than directed. These requirements are codified under 21 CFR 201.326(a)(2).

On February 10 and 11, 2014, FDA held a joint meeting of the Arthritis Advisory Committee and the Drug Safety and Risk Management Advisory Committee to discuss cardiovascular safety issues related to the use of NSAIDS, including ibuprofen.2 Safety issues included increased risk of heart attack and stroke that may be worsened with using too much NSAID or using NSAIDs for longer than recommended. Thus, FDA sent letters on August 18, 2016, to all manufacturers of ibuprofen requesting supplements to their applications to update labels with this new safety information. All OTC ibuprofen products now include label warnings against increased risk of heart attack and stroke with the use of NSAIDs other than aspirin.

To help ensure the continued utility of the consumer labeling as it relates to the safety of nonprescription ibuprofen drug products, FDA carefully monitors adverse event reporting.

The safety issues that have arisen subsequent to the 2002 proposed rule have caused the Agency to question whether ibuprofen can be “generally recognized as safe and effective” for use as an active ingredient in OTC IAAA drug products. For this reason, the Agency is withdrawing the 2002 proposed amendments to 21 CFR part 343. Our withdrawal of the 2002 proposed amendment to the IAAA TFM has no effect on the continued approval and marketing of the NDA and ANDA OTC ibuprofen drug products. As noted above, FDA has addressed the safety issues associated with ibuprofen through the NDA and ANDA safety framework, which is different from the safety framework for drugs marketed under the OTC monograph framework.

FDA is not withdrawing those portions of the 2002 proposed rule to amend its regulations to include consistent pregnancy and allergy warnings for OTC IAAA drug products containing nonsteroidal anti-inflammatory active ingredients.

For the reasons described in this document, FDA is withdrawing portions of the 2002 proposed rule, which would have amended the OTC IAAA TFM.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector New Orleans DHS Department of Homeland Security FR Federal Register MM Mile marker NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

On April 9, 2018, AFX Pro, LLC, notified the Coast Guard that it would be conducting a fireworks display from 9 p.m. through 10 p.m. on August 25, 2018, for the National Guard Association of the United States Annual Conference. The fireworks will be launched from a barge in the Mississippi River at approximate mile marker (MM) 96.2 above Head of Passes, New Orleans, LA. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Sector New Orleans (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a one-mile stretch of the river.

The purpose of this rulemaking is to ensure the safety of vessels on the navigable waters within a one-mile stretch of the river before, during, and after the fireworks display. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone from 8:45 p.m. through 10 p.m. on August 25, 2018. The safety zone would cover all navigable waters of the Mississippi River above Head of Passes between mile markers (MM) 95.7 and 96.7. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector New Orleans.

Vessels requiring entry into this safety zone would have to request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2200. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

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

This regulatory action determination is based on the size and duration of the safety zone. This safety zone is for only one hour and fifteen minutes on a one-mile section of the waterway. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting one hour and fifteen minutes that would prohibit entry between mile marker 95.7 and mile marker 96.7 on the Lower Mississippi River above Head of Passes. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacyNotice.

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

On January 28, 2013, the State of North Dakota submitted a SIP revision containing amendments to Article 33-15 Air Pollution Control rules. We approved some of these revisions on October 21, 2016 (81 FR 72716) and on October 10, 2017 (82 FR 46919). The remaining amendments revise the PSD rules and add a general permit to construct provision. We will address the PSD revision related to modeling in a separate action. The North Dakota State Health Council adopted the amendments on August 14, 2012 (effective January 1, 2013).

On November 11, 2016, the State of North Dakota submitted a SIP revision containing amendments to Article 33-15 Air Pollution Control rules. The amendments: Update the definition of “volatile organic compounds” and PSD rules; revise permit to construct and PSD public participation methods; clarify applicability of oil and gas regulations; increase the application and processing fees; add a significant emission rate for greenhouse gas carbon dioxide equivalent; add a definition of “actively producing” oil and gas wells; remove greenhouse gas provisions relating to the determination of a major source and major modification; remove the expired exemption of greenhouse gases from biogenic sources; and streamline a provision related to oil and gas registration and reporting. The North Dakota State Health Council adopted the amendments on February 24, 2016 (effective July 1, 2016).

We evaluated North Dakota's January 28, 2013 and November 11, 2016 submittals regarding revisions to the State's Air Pollution Control rules.

The State added a “General permit” to construct rule in 33-15-14-02.1.c. providing the State with authority to issue a general permit to construct “covering numerous similar minor sources.” The addition of North Dakota's general permit to construct rule establishes the framework for general permits to be issued and references the requirements and procedures that will be followed in developing the conditions and terms for issuing each general permit. Under this new rule, any general permit to construct shall comply with all the requirements applicable to other permits to construct. The general permit rule also specifies that any general permit “shall identify criteria by which sources may qualify for the general permit.” Additionally, the rule requires that sources that would qualify for a general permit must apply to the State for coverage under the terms of the general permit, or apply for an individual permit to construct. The rule also requires that the State “shall grant the conditions and terms of the general permit” to sources that qualify. Finally, the rule allows the State to grant a source's request for authorization to construct under a general permit without repeating the public participation procedures under subsection 6 of section 33-15-14-02. We propose to approve the State's general permit regulation into the SIP based on the following analysis.

The revision specifies that the State may issue a general permit to construct covering numerous similar sources which are not subject to permitting requirements under chapter 33-15-13 (Emission Standards for Hazardous Air Pollutants), 33-15-15 (Prevention of Significant Deterioration of Air Quality), or subpart B of 33-15-22-03 (Emissions Standards for Hazardous Air Pollutants for Source Categories). Our discussions with the State also revealed that North Dakota interprets the rule to include sources that will voluntarily accept conditions in the general permit that limit emissions below the major source thresholds (i.e., synthetic minor permits). Thus, the new general permit to construct rule provides the State with an option to develop general permits for the following three types of sources: Minor sources of criteria pollutants (potential emissions below the major source thresholds in 33-15-15); minor sources of hazardous air pollutants (potential emissions below the major source thresholds in 33-15-13 and 33-15-22-03); and minor sources of either criteria or hazardous air pollutants that elect to apply for general permits to limit emissions below major source thresholds (i.e., synthetic minor permits). The general permit rule allows sources to comply with the State's existing minor new source SIP rules by obtaining approval to construct via a general permit issued by the State in lieu of obtaining approval to construct via an individual permit. Therefore, we evaluate in II.A.1.c whether the regulation is consistent with the federal requirements associated with SIPs under (i.e., section 110 of the CAA), our regulations, and applicable guidance.

Finally, in addition to criteria pollutants, as explained above, sources of hazardous air pollutants (HAPs) may also be eligible for coverage under North Dakota's general permit program. HAPs are regulated under sections 111 and 112 of the CAA. Section 112(l) allows the EPA to approve a state's permit program if it meets the following statutory criteria for approval under section 112(l)(5): (1) Contains adequate authority to assure compliance with any section 112 standards, regulations, or requirements; (2) provides for adequate authority and resources to implement the program; (3) provides for an expeditious schedule for assuring compliance with section 112 requirements; and (4) is otherwise in compliance with agency guidance and is likely to satisfy the objectives of the CAA.

Regarding the first criteria, North Dakota's general permit program contains adequate authority to assure compliance with section 112 requirements since the third criteria of the “Requirements for the Preparation, Adoption, and Submittal of Implementation Plans” 1 (EPA's 1989 rulemaking) requiring all emissions limitations, controls, and other requirements imposed will be at least as stringent as any other applicable limitations and requirements contained in the SIP or enforceable under the SIP, and that the program may not issue permits that waive, or make less stringent, any limitation or requirements contained in or issued pursuant to the SIP, or that are otherwise “federally enforceable” (e.g., standards established under sections 111 and 112 of the Act), is met by the both the permit to construct and general permit programs, i.e., because the programs do not provide for waiving any section 112 requirement. (Refer to our full analysis in II.A.1.c.) Regarding the requirement for adequate resources, the State has demonstrated that it can provide for adequate resources to implement and enforce the program through the fees it charges. See Chapter 33-15-23, Fees, and refer to our full analysis in II.B.5. North Dakota's general permit meets the third criteria to provide for an expeditious schedule for assuring compliance with section 112 requirements because nothing in the State's program would allow a source to avoid or delay compliance with federal HAPs requirements if it fails to obtain the appropriate federally enforceable limit by the relevant deadline. Finally, North Dakota's general permit program is consistent with the intent of section 112 and the CAA since its purpose is to enable sources to obtain federally enforceable limits on potential to emit. In addition to the statutory criteria found in section 112(l)(5), the criteria outlined in 40 CFR 51.160-51.162 as well as the criteria for approving federally enforceable state operating permits must be met in order to create federally enforceable limits on the potential to emit HAPs under a general permit. We describe how North Dakota's general permit program will meet both of these criteria in II.A.1.c. Thus, the EPA is also proposing to approve the State's general permit program under section 112(l) of the Act for the purpose of creating federally enforceable limitations on the potential to emit HAPs regulated under section 112 of the CAA.2

Typically, a general permit is a permit document that contains standardized requirements that multiple stationary sources can use. For less complex plant sites, and for source categories involving relatively few operations that are similar in nature, case-by-case permitting may not be the most administratively efficient approach to establishing federally enforceable restrictions. One approach that has been used is to establish a general permit, which creates enforceable restrictions at one time that can then be used for many similar sources. A general permit contains all of the emissions limitations, monitoring, recordkeeping and reporting requirements that a source in a given source category would be subject. Thus, the purpose of a general permit is to provide for protection of air quality while simplifying the permit process for similar minor sources. If the general permit rule is approved by the EPA into the SIP, then the permits are federally enforceable.

Section 110(a)(2)(C) of the Act requires that each implementation plan include a program to regulate the construction and modification of stationary sources, including a permit program as required by parts C and D of title I of the CAA, as necessary to assure that the National Ambient Air Quality Standards (NAAQS) are achieved. Parts C and D, which pertain to PSD and nonattainment, respectively, address the major new source review (NSR) programs for major stationary sources, and the permitting program for “nonmajor” (or “minor”) stationary sources is addressed by section 110(a)(2)(C) of the CAA. We commonly refer to the latter program as the “minor NSR” program. A minor stationary source is a source whose “potential to emit” is lower than the major source applicability threshold for a particular pollutant as defined in the applicable major NSR program.

To evaluate the approvability of a state minor source SIP permit revision, the changes must meet all applicable requirements (procedural and substantive) of 40 CFR part 51 and the CAA. The EPA's requirements for SIP approval applicable to minor NSR permitting programs are established in 40 CFR part 51, subpart I—Review of New Sources and Modifications, §§ 51.160 through 51.164. Additionally, since the State interprets this general permit rule to apply to synthetic minor sources, the EPA applies the criteria in the EPA's 1989 rulemaking, and in the EPA's January 25, 1995 memorandum “Guidance on Enforceability Requirements for Limiting Potential to Emit through SIP and § 112 and General Permits” (EPA's 1995 guidance).3 Finally, we consider Section 110(l) of the CAA to evaluate whether the SIP revision would interfere with any applicable requirement concerning attainment, reasonable progress, or any other applicable requirement of the CAA.

As stated previously, the EPA has the authority to approve these types of general permits if they are incorporated into the SIP. In order for North Dakota's general permit to construct rule to be incorporated into the SIP, the rule must meet certain legal and practical federal requirements.

The EPA's regulatory requirements for SIP approval applicable to minor NSR permitting programs are established in 40 CFR part 51, subpart I—Review of New Sources and Modifications, §§ 51.160 through 51.164. The EPA approved North Dakota's minor NSR permitting program on August 21, 1995 (60 FR 43396). That approval covered permits issued on an individual basis. North Dakota's May 3, 2018 letter to the EPA, explains that the State interprets their general permit rule 33-15-14-02.1.c. to require the same minor NSR permitting program elements the EPA previously approved.4

The EPA's 1989 rulemaking describes five criteria that must be met in order for emissions controls and limitation to be federally enforceable and thereby approvable into the SIP. The EPA's 1989 rulemaking criteria are as follows:

(1) The State operating permit program (i.e., the regulations or other administrative framework describing how such permits are issued) is submitted to and approved by the EPA into the SIP.5

(2) The SIP imposes a legal obligation that operating permit holders adhere to the terms and limitations of such permits (or subsequent revisions of the permit made in accordance with the approved operating permit program) and provides that permits which do not conform to the operating permit program requirements and the requirements of the EPA's underlying regulations may be deemed not “federally enforceable” by the EPA.

(3) The State operating permit program requires that all emissions limitations, controls, and other requirements imposed by such permits will be at least as stringent as any other applicable limitations and requirements contained in the SIP or enforceable under the SIP, and that the program may not issue permits that waive, or make less stringent, any limitation or requirements contained in or issued pursuant to the SIP, or that are otherwise “federally enforceable” (e.g., standards established under sections 111 and 112 of the Act).

(4) The limitations, controls, and requirements in the operating permits are permanent, quantifiable, and otherwise enforceable as a practical matter.

(5) The permits are issued subject to public participation, which we analyze in section II.B.2. This means that the State agrees, as part of its program to provide the EPA and the public with timely notice of the proposal and issuance of such permits, and to provide the EPA, on a timely basis, with a copy of each proposed (or draft) and final permit intended to be federally enforceable. This process must also provide for an opportunity for public comment on the permit applications prior to issuance of the final permit.

When the EPA approved North Dakota's minor source permitting program, the EPA determined that the State's program met the criteria in the EPA's 1989 rulemaking as applied to individual sources.6 Therefore, in this notice we apply the five criteria from that rulemaking to the general permit regulation and the provisions in the State's current SIP and proposed amendments to other State rules that are also part of the general permit program.

With respect to fulfilling the requirements of the first criteria that requires the permit program regulations and administrative framework to be approved by the EPA into the SIP, the general permit rule requires that general permits comply with all existing permit regulations. The existing permit regulations in the SIP currently include 33-15-01, General Provisions, 33-15-14-02, Permit to Construct, 33-15-14-03, Minor Source Permit to Operate, and 33-15-23, Fees including construction and operating fees, which provide the regulations and administrative framework to describe how such permits are issued. Furthermore, North Dakota's general permit rule requires that the “general permit shall comply with all requirements applicable to other permits to construct.” We interpret these requirements for minor sources to include the following SIP requirements: The application and submission of plans (33-15-14-02.2 and 33-15-14-02.15, respectively); denial and issuance of permits (33-15-14-02.7 and 33-15-14-02.8, respectively); scope and transfer of permits (33-15-14-02.10 and 33-15-14-02.11, respectively), as well as performance and emission testing (33-15-14-02.14); responsibility to comply (33-15-14-02.15); and permit amendments (33-15-14-02.19), among others. The SIP requirements also include the State's existing minor source permit rules that specify the terms and conditions for a permit application (33-15-14-02.9).

For the second criteria, North Dakota's SIP regulations impose a legal obligation that permit holders adhere to the terms and limitations of the permits, which would include a general permit, so that violation of any conditions of the general permit may result in the revocation or suspension of the permit or other appropriate enforcement action (33-15-14-02.9 and 33-15-14-03.7). Furthermore, 33-15-14-02.7 states “no permit to construct or modify may be granted if such construction, modification, or installation, will result in a violation of this article” and 33-15-14-03.1.b states “no person may operate or cause the operation of an installation or source in violation of any permit to operate or any condition imposed upon a permit to operate or in violation of this article.” North Dakota's May 3, 2018 letter confirms the State interprets the general permit regulation to include these legal obligations. Together, these rules satisfy the second criteria that the permittee must comply with the permit conditions.

For the third criteria, which requires that all emission limitations, controls, and other requirements be at least as stringent as any other requirements in the SIP, North Dakota's permit to operate rules (33-15-14-03.6) require “all emission limitations, controls, and other requirements imposed by conditions on the permit to operate must be at least as stringent as any applicable limitation or requirement contained in this article.” In addition, if the proposed construction project will cause or contribute to a violation of any applicable air quality standard, the State's May 3, 2018 letter explains that the State will deny approval of the proposed project to be covered under a general permit to construct (33-15-14-02.5.a and 33-15-14-02.7).

North Dakota's construction and operating permitting rules require a 30-day public comment period (33-15-14-03.5 and 33-15-14-02.6, respectively) in addition to providing the EPA with a copy of the proposed permit and all information considered in the development of the permit in order to provide an opportunity to review the permit and ensure that the limitations, controls, and requirements in the permits are permanent, quantifiable, and otherwise enforceable as a practical matter and thereby meet the fourth criteria that the permit conditions be enforceable as a practical matter. Although the January 28, 2013 SIP submittal does not include an explanation of, or requirements for, the public participation requirements North Dakota is required to provide prior to issuing a general permit, the State subsequently adopted revisions to the general permit rule in 33-15-14-02.1.c that provide for public participation prior to issuance and renewal of general permits. These provisions for public participation are in the SIP submittal the EPA received from the State on November 11, 2016, and are discussed in section II.B.2 of this notice. The November 11, 2016 revisions require that “a proposed general permit, any changes to a general permit, and any renewal of a general permit shall be subject to public comment” and that the public comment procedures under subsection 6 of section 33-15-14-02 shall be used.7 The EPA determined that with respect to general permits, the EPA and the public do not need to be involved in the review of individual applicants requesting coverage under a general permit “since the rule establishing the program does not provide the specific standards to be met by the source, each general permit, but not each application under each general permit, must be issued pursuant to public and EPA notice and comment.” 8 As discussed previously, North Dakota must also provide the EPA with a copy of the proposed general permit for review. Together, these rules meet the fifth criteria that permits issued are subject to public participation. In summary, we propose to conclude that the State's general permit to construct rule meets the aforementioned five criteria for emissions controls and limitation to be federally enforceable as described by the EPA's 1989 rulemaking.

In addition to the EPA's 1989 rulemaking, the general permit to construct rule must also be in accordance with six enforceability criteria, which are described in the EPA's 1995 guidance, that a rule or a general permit must meet to make limits enforceable as a practical matter:

(1) Specific applicability: The general permit must apply to a specific and narrow category.

(2) Reporting or notice to permitting authority: Sources electing coverage under general permits where coverage is not mandatory, provide notice or reporting to the permitting authority.

(3) Specific technically accurate limits: General permits provide specific and technically accurate (verifiable) limits that restrict the potential to emit.

(4) Specific compliance monitoring: General permits contain specific compliance requirements.

(5) Practicably enforceable averaging times: Limits in general permits are based on practicably enforceable averaging times.

(6) Clearly recognized enforcement: Violations of limits by synthetic minor sources are considered violations of the state and federal requirements and result in the source being subject to major source requirements.

When the EPA approved North Dakota's minor source permitting program, the EPA determined that the State's program met the criteria described in the EPA's 1995 guidance as applied to individual sources.9 Therefore, in this notice we review how the general permit to construct program satisfies the enforceability requirements described in the EPA's 1995 guidance in the context of the general permit program. First, with respect to requirement (1), the general permit to construct provision (33-15-14-02.1.c.) covers similar sources and “shall identify criteria by which sources may qualify for the general permit.” Therefore, each general permit is required to include the criteria that will be used as the basis for determining whether a source is eligible for the general permit. These criteria serve to describe and narrow the sources for which general permits may be established. In order to comply with the second enforceability criteria (2) that all sources provide notice or reporting to the permitting authority, all sources that qualify for a general permit must apply to the state for coverage under the terms of the general permit, and provide ongoing reports to the State, including monitoring, recordkeeping, and reporting. Regarding compliance with requirements (3) through (5) with respect to emission limits, compliance requirements, and averaging times under both the general permit to construct and the general permit to operate, sources shall comply with all permit requirements to construct and operate, respectively. Thereby, sources operating under a general permit to operate must follow the emission limits and all other requirements subject to the source under 33-15-14-03.6, Permit to Operate—Conditions. Likewise, sources are also subject to similar conditions, including emission limits, averaging times, monitoring, recordkeeping, reporting, and other requirements, under 33-15-14-02.9, Permit to Construct—Conditions. Likewise, with respect to the final enforceability requirement (6), violations of any conditions found in 33-15-14-02.9, Permit to Construct—Conditions may result in revocation or suspension of the permit or other appropriate action. Thus, violations of the rule or general permit or violations of the specific conditions of the rule or general permit subjects the source to potential enforcement under the CAA and state law. In summary, we propose to conclude that North Dakota's general permit to construct rule meets the aforementioned criteria for enforceability as described in the EPA's 1995 guidance.

Finally, the EPA's evaluation of the general permit to construct rule must consider Section 110(l) of the CAA, which states that the EPA shall not approve a SIP revision if it would interfere with any applicable requirement concerning attainment, reasonable progress, or any other applicable requirement of the CAA. The provisions in 33-15-14-02.1.c establish a general permit to construct program that allows the State to develop and issue general permits to construct. Sources may seek authorization under the general permit to construct program in lieu of individual construction permits. Thus, under 110(l) of the CAA, the addition of a general permit to construct program and resulting authorizations allowing sources to construct must not interfere with attainment, reasonable progress, or any other applicable requirements of the CAA.

We evaluated the addition of a general permit to construct program for its impact on attainment, reasonable progress, and other applicable requirements of the CAA. First, under the general permit to construct revision, any general permit shall comply with all of the requirements applicable to other permits, including a determination of whether issuance of a permit to a specific category of proposed construction projects will cause or contribute to a violation of any applicable ambient air standard (33-15-14-02.5.a). Thus, as the State explained in their May 3, 2018 letter, consistent with 33-15-14-02.5.a and 33-15-14-02.7, if the State makes the determination that the proposed category will cause or contribute to a violation of any applicable air standard, the State would not propose a general permit. Ambient air monitoring, modeling, or other assessment techniques will be used to ensure that sources granted authority to construct under the general permit will not violate applicable ambient air quality standards. In addition, the State will consider any air quality concerns unique to specific areas that arise after issuance of the general permit and when determining whether an individual proposed project is eligible for coverage under the general permit. For example, if a source wants to locate in an area with air quality levels approaching or violating the NAAQS, North Dakota may request that a source apply for a site-specific permit so that the potential for greater control than that afforded by the general permit can be evaluated.10

North Dakota is bound by State rules to grant the conditions and terms of the general permit to sources that qualify or deny a source's request if the source does not qualify. As the State explains in detail in their May 3, 2018 letter, the SIP rules provide that the State's decision for denying a source's request is based on 33-15-14-02.5.a and 33-15-14-02.7. Therefore, in addition to assuring that sources granted authority to construct under a general permit will not violate applicable standards, in the event the State determines (33-15-14-02.5) that an individual source will violate the control strategy or interfere with attainment or maintenance of a national standard in the State or in a neighboring state, North Dakota will have the ability to require a proposed source to apply for and obtain an individual air emission permit under 33-15-14-02, Permit to Construct, and perform an ambient air quality analysis before the source begins actual construction. Any sources that may be subject to modeling to determine if they will cause or contribute to a violation of any applicable air ambient air standard will not be eligible for a general permit.11

Finally, under the general permit to construct rule, a proposed general permit, any changes to a general permit, and any renewal of a general permit shall be subject to the public comment procedures at 33-15-14-02.6 which allow 30 days for public comment. Based on the reasons discussed previously, we propose to find that the addition of the general permit to construct rule found at 33-15-14-02.1.c and the other rules implemented in concert with the general permit rule are equivalent to the permit to construct rules and will not interfere with attainment or reasonable further progress or any other applicable requirement of the CAA, and thereby, demonstrates compliance with section 110(l) of the CAA providing further basis for proposed approval of this SIP revision. There should be no impact on air quality as a result of North Dakota's general permit rule because the sources eligible for coverage under the general permit regulation will be subject to terms and conditions in general permits, and those terms and conditions are equivalent to those applicable to source-specific minor permits to construct, which includes the air quality SIP permitting requirements.

Based on our evaluation of North Dakota's new general permit to construct rule and SIP submittal, we propose to find that the general permit rule meets the requirements of EPA rules, the EPA's 1989 rulemaking, criteria described in the EPA's 1995 guidance, and does not interfere with attainment, reasonable progress, or any other applicable requirements of the CAA. Therefore we propose to approve 33-15-14-02.1.c., as amended with North Dakota's January 28, 2103 and November 11, 2016 SIP submittals, into the SIP.

The CAA requires the regulation of volatile organic compounds (VOCs) for various purposes which the EPA defines at 40 CFR 51.100(s). In its November 11, 2016 submittal, the State updates 33-15-01-04, Definitions, to update the incorporation by reference of 40 CFR 51.100(s) at 33-15-01-04.52 for “volatile organic compounds” as it exists on July 1, 2015. We are proposing to approve this revision because it incorporates by reference the EPA's rule provisions.

In the January 28, 2013 submittal, North Dakota amended chapter 33-15-14-02, Permit to Construct, to include a general permit provision. Refer to II.A.1 for further discussion. In the November 11, 2016 submittal, the State amended the general permit section to include language pertaining to public participation as required by the EPA's regulations.12 Specifically, “a proposed general permit, any changes to a general permit, and any renewal of a general permit shall be subject to public comment” following the public comment procedures found in subsection 6, Public participation—Final action on application, of section 33-15-14-02. However, portions of subsection 6(a) contain provisions related to “director's discretion” that purport to permit revisions to SIP-approved emission limits with limited public process or without requiring further approval by the EPA. Thus, North Dakota committed to revise the reference for “subsection 6 of 33-15-14-02” to “subdivision 6.b of 33-15-14-02” in a future submittal.13 With the State's commitment to revise the reference to “subdivision 6.b of 33-15-14-02”, we propose to approve the revisions to the general permit section in the November 11, 2016 submittal because they allow for public participation. For reasons discussed in the following paragraph, we also propose to approve the revision in subsection 33-15-14-02.6.b(2) that allows North Dakota to post the application, proposed permit and analysis on the State's website.

North Dakota added language in 33-15-14-03.5.a(1)(b) allowing a copy of the proposed permit and copies of or a summary of the information considered in developing the permit to be made available on the State's website for public participation. This addition aligns with 40 CFR 51.161(b)(1) which allows States to post information submitted by owners and operators along with the State's analysis of the effect on air quality on a public website. As a result of having the option to make information about proposed permits available on the State's website instead of delivering paper copies of the information, North Dakota also revised 33-15-14-03.5.a(1)(d) to reflect this change by allowing the State to “provide notice” of the proposed permit and public notice instead of “delivering a copy” of the permit and notice. We propose to approve both of these revisions.

North Dakota also modified the renewal terms of the permit to operate in 33-15-14-03.9.a by revising the term of the permit from a fixed 5-year period to a maximum term of 5 years. In addition, applications for renewal must be submitted 90 days prior to the expiration date stated in the permit instead of 90 days prior to the 5th anniversary of its issuance. These revisions strengthen the SIP by allowing the State to issue operating permits for a term of less than 5 years, thus we propose to approve these revisions. Finally, North Dakota removed language in 33-15-14-03.9.b referencing the State's ability to amend permits issued prior to February 9, 1976, because that language is no longer necessary. We agree with North Dakota and propose to approve this revision.

North Dakota makes several revisions in their November 2016 submittal to their PSD rules found in chapter 33-15-15.

First, the State updated the incorporation by reference of 40 CFR 52.21 paragraphs (a)(2) through (e), (h) through (r), (v), (w), (aa) and (bb) at 33-15-15-01.2 as they exist on July 1, 2015. The EPA promulgated revisions to 40 CFR 52.21 since July 1, 2015, in response to a court vacatur. Specifically, on June 23, 2014, the United States Supreme Court, in Utility Air Regulatory Group (UARG) v. EPA, issued a decision addressing the application of PSD permitting to greenhouse gas (GHG) emissions.14 The Supreme Court said the EPA may not treat GHGs as air pollutants for purposes of determining whether a source is a major source (or modification thereof) required to obtain a PSD permit. The Court also said the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limits on GHG emissions based on the application of Best Available Control Technology (BACT). In response to the UARG decision, and the subsequent Amended Judgement issued by the DC Circuit (Amended Judgement),15 the EPA revised the federal PSD rules to remove the regulatory provisions that were specifically vacated by the Amended Judgement removing 40 CFR 52.21(b)(49)(v) and 40 CFR 51.166(b)(48)(v), among other provisions.16

North Dakota's adoption by reference of 40 CFR 52.21 as of July 1, 2015, did not include the EPA's August 19, 2015 revisions to the federal PSD program removing the PSD provisions vacated by the Amended Judgement. The North Dakota SIP currently contains the vacated GHG provisions (through the incorporation by reference of a previous version of 40 CFR 52.21), so the EPA's proposed approval of the CFR incorporation by reference update to July 1, 2015, does not change the North Dakota SIP with respect to the vacated provisions. However, the now-vacated portions of 40 CFR 52.21 incorporated into the North Dakota SIP-approved PSD program are no longer enforceable. This portion of the North Dakota SIP should be revised in light of the D.C. Circuit's Amended Judgement, but the EPA also notes that these provisions may not be implemented even prior to their removal from the North Dakota SIP because the court decisions described above have determined these parts of the EPA's regulations are unlawful. Further, North Dakota has advised the EPA that it is not currently enforcing these provisions in light of the Supreme Court decision and that North Dakota will update its incorporation by reference of the CFR, including the August 19, 2015 revisions to 40 CFR 52.21 in a future submittal.17 We are therefore proposing to approve the State's revision of the incorporation by reference date with the understanding that the GHG provisions vacated by the court decisions cannot by implemented and are not being enforced by North Dakota.

Second, we evaluate the State's revisions to their incorporation by reference of the EPA's PSD regulations to evaluate whether the revisions are consistent with our regulations in effect at this time. The State revised language in their incorporation of 40 CFR 52.21(b)(1) and 40 CFR 52.21(b)(2) exempting greenhouse gases, as defined in 40 CFR 86.1818-12(a), from the definition of a New Source Review (NSR) pollutant for the purposes of defining a “major source” and “major modification,” respectively. Specifically, the State's regulation indicates for both definitions that “[f]or purposes of this definition, regulated NSR pollutant does not include greenhouse gases as defined in 40 CFR 86.1818-12(a).” 18 Thus, North Dakota eliminated greenhouse gases from consideration when determining whether a source is a “major source” or whether a change to major stationary source is a “major modification.” The EPA amended its rules in a different manner. The EPA's revisions that amended the rules after the Court's holding that EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD or title V permit, deleted 40 CFR 52.21(b)(49)(v), which required that “[b]eginning July 1, 2011, in addition to the provisions in paragraph (b)(49)(iv) of this section, the pollutant GHGs shall also be subject to regulation, (a) At a new stationary source that will emit or have the potential to emit 100,000 tpy of a carbon dioxide equivalent (CO2e); or (b) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO2e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO2e or more.” 19 20 21 As discussed previously, North Dakota acknowledges that their July 1, 2015 incorporation by reference date of some of the provisions in 40 CFR 52.21 included the provision at 40 CFR 52.21(b)(49)(v) that was later removed on August 19, 2015, and the State is not currently enforcing this provision in light of the Court decision. Thus, we propose to approve this revision.

Third, in the June 23, 2014 U.S. Supreme Court decision, the Court upheld application of the Best Available Control Technology (BACT) requirement for greenhouse gas emissions from new and modified sources that trigger PSD permitting obligations on the basis of their emissions of air pollutants other than greenhouse gases. Thus, if a source is subject to PSD BACT requirements for a pollutant other than greenhouse gases, the source remains subject to PSD BACT requirements for greenhouse gases.

North Dakota revised their incorporation of 40 CFR 52.21(b)(23)(i) 22 to include a significant pollutant and emission rate of 75,000 tons per year (tpy) or more of greenhouse gases on a carbon dioxide equivalent basis. Although the North Dakota SIP submittal is structured differently than the EPA's federal rules at 40 CFR 52.21, the primary practical effect of both is the same: The PSD BACT requirement does not apply to GHG emissions from an “anyway source” unless the source emits GHGs at or above the 75,000 tpy threshold, which the State confirmed in their letter.23 We propose to approve this revision because it is consistent with the relevant provisions of 40 CFR 52.21.

It is important to note, however, that the EPA's proposed approval is not based on determination by either the EPA or the state that 75,000 tpy CO2e is an appropriate de minimis level for GHGs. The EPA's proposed approval of the significant emissions rate for GHGs in North Dakota's rule is based only on the recognition that North Dakota's rule applies the same applicability level for GHG BACT requirement that is presently reflected in the EPA's regulations.

In establishing the significance level, the State rulemaking does not establish that 75,000 is a de minimis amount of GHG. Nothing in North Dakota's rulemaking and nothing in this EPA action provide support to substantiate 75,000 tpy significance level as a de minimis level. See UARG, 134 S.Ct. 2427, at 2449 (noting that the EPA had not established the 75,000 tpy level in the Tailoring Rule as a de minis threshold below which BACT is not required for a source's GHG emissions).

Given the deficiencies in the justification for the GHG BACT applicability level in the existing EPA regulations, the EPA is planning to move forward in a separate, national rulemaking to propose a GHG Significant Emission Rate (SER) that would be justified as a de minis threshold level for applying the BACT requirement to GHG emissions under PSD. In the event that the EPA ultimately promulgates a final GHG SER, North Dakota, like all other SIP-approved states, may be obligated to undertake rulemaking to demonstrate consistency with federal requirements.

Fourth, the State eliminated the exemption for greenhouse gases from biogenic sources found at 40 CFR 52.21(b)(49)(ii)(a)(July 1, 2015). The State explained in the November 2016 submittal that the basis for eliminating the exemption was because the exemption expired.24 We agree with the State's reason for deleting this provision as it is consistent with the EPA's expired regulation and therefore propose to approve the deletion of the exemption in 40 CFR 52.21(b)(49)(ii)(a).

Finally, the State added language in 40 CFR 52.21(q) to allow copies of: (1) All materials submitted by an applicant; (2) the State's preliminary determination; and (3) a summary of other materials, if any, considered in making a preliminary determination regarding a proposed source or modification to be posted on the State's website. This addition aligns with 40 CFR 124.10(c)(2)(iii)(B) which allows states to post information related to applications to construct or modify a source on a public website in lieu of publishing in a daily or weekly newspaper. Therefore, we propose to approve this language.

North Dakota broadened the applicability of this chapter in 33-15-20-01.1, Applicability, from applying to “any oil and gas well production facility which emits sulfur or sulfur compounds” to applying to “any oil and gas well facility which emits air contaminants.” In doing so, North Dakota strengthens the SIP because the chapter now applies to all facilities (an expansion from an oil and gas well “production facility”) and any air contaminant (an expansion from emissions of “sulfur or sulfur compounds”), therefore, we propose to approve these revisions.

In section 33-15-20-01.2, Definitions, North Dakota added the definition of “actively producing” to mean that a well has been producing for 30 days or more from initial production through the wellhead equipment. In conjunction, North Dakota also revised section 33-15-20-02.1, Registration and reporting requirements, so that only actively producing oil or gas wells, as opposed to any oil and gas well, shall submit an oil and gas well registration form. Revisions to this paragraph also include the requirement that the owner or operator must submit the registration form, along with a gas analysis, within 90 days of the well achieving production status instead of within 90 days of the completion or recompletion of the well. Since completed wells can remain idle for extended periods of time prior to producing, this revision clarifies that only actively producing wells are subject to the registration and reporting requirements thereby reducing the burden on oil and gas well owners and operators. Furthermore, these revisions do not alter the emission control requirements for oil and gas wells found in Chapter 7, Control of Organic Compounds Emissions, and as explained in the State's response to comments contained in the November 2016 submittal, this revision allows the producer to obtain better data for inclusion in the registration form and does not change any of the emission control requirements of the chapter. Thus, we propose to approve these revisions.

Additionally, in 33-15-20-02, North Dakota removed paragraph 33-15-20-02.2 because it was no longer relevant. Paragraph 33-15-20-02.1 contains identical language to 33-15-20-02.2 describing the registration and reporting requirements except for paragraph 33-15-20-02.1 does not cite the applicability emission threshold of 10 tons per year or more of sulfur compounds and instead contains the new revisions to add “actively producing” and “well achieving active production status” to describe the applicability of the registration and reporting requirements (as discussed and proposed for approval elsewhere in this notice). Thus, these differences between 33-15-20-02.1 and 33-15-20-02.2 are the result of the revisions in 33-15-20-02.1 contained in the November 2016 submittal that we are proposing to approve as previously discussed. By deleting 33-15-20-02.2, North Dakota also removed language: (1) Pertaining to the original date of January 1, 1988, when the registration form and gas analysis must be submitted to North Dakota for all oil and gas wells completed or recompleted prior to July 1, 1987; and (2) requiring modifications and changes to wells occurring after July 1, 1987, to submit a registration form and gas analysis. With respect to requirement (1), the January 1, 1988 deadline to submit a registration form is over 30 years ago and new regulations have been added to 33-15-20-02.1 for oil and gas wells completed after July 1, 1987, thus as a practical matter, the references to oil and gas wells completed prior to July 1, 1987, and the associated January 1, 1988 deadline are no longer meaningful in the SIP. With respect to requirement (2), the same requirements to inform the State of changes to information contained on the registration form and gas analysis are now required in 33-15-20-02.3. We agree that the language found in 33-15-20-02.2 is no longer relevant because the regulations are either contained in 33-15-20-02.1 or 33-15-20-02.3, and removing the reporting requirements for oil and gas wells completed prior to July 1, 1987, does not impact any emission control requirements and will not lead to a change in emissions or ambient concentrations of a pollutant or its precursors. Thus, we propose to approve this amendment.

We also propose to approve revisions to paragraph 33-15-20-03.1 that determine the applicability of Chapter 33-15-15 to oil and gas well production facilities. North Dakota replaces the applicability threshold of an oil and gas well production facility that “emits or has the potential to emit 250 tons per year or more of any air contaminant regulated under North Dakota Century Code (N.D.C.C.) chapter 23-25, as determined by the department” with an oil and gas well production facility that “is a major stationary source or a major modification as defined in Chapter 33-15-15.” N.D.C.C. 23-25 contains the Department's statutory authority for air pollution control. Chapter 33-15-15 of North Dakota's regulations reference 40 CFR 52.21, which define a “major stationary source” and “major modification at 40 CFR 52.21(b)(1) and 52.21(b)(2). Therefore, rather than Chapter 33-15-15, Prevention of Significant Deterioration of Air Quality, applying to oil and gas well production facilities that emit 250 tons per year or more of any air contaminant regulated under chapter 23-25 of N.D.C.C., the State's amendments mean that Chapter 15-15-20 applies to oil and gas well production facilities that meet either of the definitions under 40 CFR 52.21(b)(1) or 52.21(b)(2). Specifically, this would include “any stationary source which emits, or has the potential to emit, 250 tons per year or more of a regulated NSR pollutant” and modifications to stationary sources. This revision is equivalent to the current SIP because the State interprets the language in the current SIP (33-15-20-03.1), as applying to all oil and gas well production facilities subject to the PSD rules. Because this revision is equivalent to the current SIP and federal regulations, we propose to approve this revision.

Finally, North Dakota makes minor revisions in 33-15-20-01.2 and 33-15-20-03.2 to renumber definitions and add non-substantive clarifying changes to the equation for PSD applicability for sulfur dioxide, respectively. We propose to approve both of these revisions.

We also propose to approve in the November 2016 submittal revisions to chapter 33-15-23, Fees, to: (1) Increase the permit to construct application fee from $150.00 to $325.00 (33-15-23-02.1); (2) increase the threshold of processing costs incurred by the State (e.g., applications requiring a major engineering analysis and/or computer dispersion modeling) that would trigger a processing fee due by the applicant from $150.00 to $325.00 (33-15-23-02.2); and (3) remove the option for an applicant to withdraw an application without paying any processing fees (33-15-23-02.2.b). CAA Section 110(a)(2)(E) requires that a state implementation plan provide assurances that the state will have, among other items, adequate funding to carry out the implementation plan. As explained in a memo to interested parties, increasing the application fee and the processing fee threshold as well as removing the option for an applicant to withdraw an application without paying processing fees reflect both inflation and the increased complexity of permit to construct applications, thereby ensuring the State has adequate funding to carry out the implementation plan.25 26 Therefore, we propose to approve these revisions.

In this action, the EPA is proposing to approve SIP amendments to North Dakota Air Pollution Control Rules, shown in Table 1, submitted by the State of North Dakota on January 28, 2013 and November 11, 2016.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the amendments described in section III. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

The Clean Air Act (CAA) requires the EPA to establish a NAAQS for certain pervasive pollutants that “may reasonably be anticipated to endanger public health and welfare” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect public health with an adequate margin of safety, and the secondary standard is designed to protect public welfare and the environment. The EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants, including ozone. The NAAQS represents the air quality levels an area must meet to comply with the CAA.

Ozone is a gas composed of three oxygen atoms and is created by a chemical reaction between volatile organic compounds (VOC) and oxides of nitrogen (NOX) in the atmosphere in the presence of sunlight. Ground-level ozone can harm human health and the environment. Ozone exposure has been associated with increased susceptibility to respiratory infections, medication use by asthmatics, doctor visits, and emergency department visits and hospital admissions for individuals with respiratory disease. Ozone exposure may also contribute to premature death, especially in people with heart and lung disease.

In March 2008, the EPA strengthened the primary and secondary eight-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm (“2008 ozone NAAQS”). 73 FR 16436 (March 27, 2008).1 In accordance with section 107(d) of the CAA, the EPA must designate an area “nonattainment” if it is violating the NAAQS or if it is contributing to a violation of the NAAQS in a nearby area. With respect to the ozone NAAQS, the EPA further classifies nonattainment areas as “Marginal,” “Moderate,” “Serious,” “Severe,” or “Extreme,” depending upon the ozone design value for an area.2 See CAA section 181(a)(1). As a general matter, higher classified ozone nonattainment areas are subject to a greater number of, and more stringent, SIP requirements than lower classified areas but are allowed more time to demonstrate attainment of the ozone NAAQS. See, generally, subpart 2 of part D of title I of the CAA. Depending upon the classification, states with ozone nonattainment areas are required under the CAA to develop and submit SIP revisions providing for, among other elements, a base year emissions inventory, new source review (NSR), implementation of reasonably available control technology (RACT), reasonable further progress (RFP), a demonstration of attainment, and contingency measures.

Effective July 20, 2012, the EPA established initial air quality designations for the 2008 ozone NAAQS. The EPA designated and initially classified Eastern Kern 3 as a Marginal nonattainment area for the 2008 ozone NAAQS. 77 FR 30088 (May 21, 2012). For Marginal ozone nonattainment areas, the attainment date for the 2008 ozone NAAQS is as expeditious as practicable but not later than three years from the effective date of designation, i.e., no later than July 20, 2015. See 40 CFR 51.1103(a).

Under CAA section 181(b)(2), the EPA is required to determine whether an area attained the ozone NAAQS by the applicable attainment date, and in May 2016, the EPA found that Eastern Kern had failed to attain the 2008 ozone NAAQS by the applicable Marginal attainment date (i.e., by July 20, 2015) and reclassified the area as Moderate. 81 FR 26697 (May 4, 2016). For Moderate ozone nonattainment areas, the attainment date is as expeditious as practicable but not later than July 20, 2018. See 40 CFR 51.1103(a). States with newly-reclassified Moderate ozone areas were required to submit SIP revisions meeting the applicable Moderate area requirements by January 1, 2017. 81 FR 26697 (May 4, 2016).

As described above, in 2016, the EPA reclassified the Eastern Kern 2008 ozone nonattainment area to Moderate, and, in response to the reclassification, the Eastern Kern Air Pollution Control District (EKAPCD) began to develop an ozone plan meeting the applicable ozone nonattainment area requirements, such as an attainment demonstration. However, in light of the attainment demonstration needs for the area, the EKAPCD developed the ozone plan, titled Eastern Kern Air Pollution Control District 2017 Ozone Attainment Plan for the Federal 75 ppb 8-Hour Ozone Standard (“Eastern Kern 2017 Ozone Plan”), to meet Serious, rather than Moderate, ozone nonattainment requirements. The Eastern Kern 2017 Ozone Plan includes a request to the California Air Resources Board (CARB) to formally submit a request to the EPA asking for voluntary reclassification of the Eastern Kern ozone nonattainment area from Moderate to Serious for the 2008 ozone NAAQS.4 On July 27, 2017, the EKAPCD adopted the Eastern Kern 2017 Ozone Plan and transmitted the plan to CARB for approval and submittal to the EPA. Through Resolution 17-25 (dated September 28, 2017), CARB adopted the plan and the EKAPCD's request for voluntary reclassification. Subsequently, on October 25, 2017, CARB submitted the Eastern Kern 2017 Ozone Plan to the EPA as a revision to the California SIP. CARB's October 25, 2017 SIP revision submittal constitutes a request for reclassification of the Eastern Kern ozone nonattainment area.

Under the EPA's ozone implementation rule at 40 CFR 51.1103(b), a state may request, and the EPA must approve, a higher classification for any reason in accordance with CAA section 181(b)(3).5 We find that the plain language of CAA section 181(b)(3) and 40 CFR 51.1103(b) mandates that we approve voluntary reclassification requests, and thus, the EPA proposes in this action to grant CARB's request to reclassify the Eastern Kern nonattainment area from Moderate to Serious for the 2008 ozone NAAQS. Upon the effective date of a final action granting the reclassification, the area will be required to attain the 2008 ozone NAAQS as expeditiously as practicable, but not later than July 20, 2021.

By granting a state's request to reclassify an ozone nonattainment area to a higher classification, the EPA must address submittal deadlines for SIP requirements that have become applicable to an area as a result of its higher classification. Such SIP requirements include submittals that include provisions to require implementation of RACT for existing stationary sources and permits for new or modified stationary sources (i.e., NSR), and to provide for RFP, attainment and contingency measures. For areas reclassified from Moderate to Serious, the “major source” threshold for RACT and NSR purposes falls from 100 tons per year of VOC or NOX to 50 tons per year of VOC or NOX.

As noted above, in October 2017, CARB submitted the Eastern Kern 2017 Ozone Plan to the EPA as a revision to the California SIP. We have reviewed the October 2017 submittal and find that it addresses the following Serious ozone area SIP requirements: Base year emissions inventory, emission statements, reasonably available control measure (RACM) demonstration, RFP, attainment demonstration and contingency measures.

In addition, on August 9, 2017, CARB submitted the EKAPCD's Reasonably Available Control Technology (RACT) State Implementation Plan (SIP) for the 2008 Ozone National Ambient Air Quality Standards (NAAQS) (“Eastern Kern 2017 RACT SIP”) to the EPA as a revision to the California SIP. The Eastern Kern 2017 RACT SIP was developed to meet the RACT requirements for Serious ozone nonattainment areas in anticipation of submittal by CARB to the EPA of the voluntary reclassification request contained in the Eastern Kern 2017 Ozone Plan.6 We have reviewed the August 2017 SIP submittal and find that it addresses the following Serious ozone area RACT-related SIP requirements: VOC sources covered by a Control Technology Guidelines (CTG) document and non-CTG major sources of VOC. The Eastern Kern 2017 RACT SIP does not fully address RACT requirements for non-CTG major sources of NOX.

Upon review of the two SIP revision submittals described above, we find that all the SIP elements that apply to Eastern Kern as a Serious ozone nonattainment area for the 2008 ozone NAAQS have been addressed except for NSR and RACT for major sources of NOX. The EPA is proposing a schedule for additional SIP revisions for these two SIP elements of no later than 12 months from the effective date of reclassification.7

Pursuant to CAA section 181(b)(3) and 40 CFR 51.1103(b), the EPA is proposing to grant the reclassification request by the State of California for the Eastern Kern 2008 ozone nonattainment area from Moderate to Serious, and to change the “California—2008 8-Hour Ozone NAAQS (Primary and secondary)” table in 40 CFR 81.305 accordingly. In connection with the reclassification, the EPA is proposing to establish a deadline of no later than 12 months from the effective date of reclassification for submittal of revisions to the Eastern Kern portion of the SIP to meet the Serious area requirements for NSR and for RACT for major sources of NOX. The EPA is not proposing a SIP revision schedule for any Serious area SIP requirements for which SIP submittals have already been received. We will accept comments from the public on this proposal until June 13, 2018.

Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Voluntary reclassifications under section 181(b)(3) of the CAA are based solely upon requests by the state, and the EPA is required under the CAA to grant them. This proposed action does not, in and of itself, impose any new requirements on any sector of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classification, reclassification does not impose a materially adverse impact under Executive Order 12866. For these reasons, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). Furthermore, this proposed action is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because actions such as reclassifications made at the request of a state are exempt under Executive Order 12866.

In addition, I certify that this proposed 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.). This proposed action 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), because the EPA is required to grant requests by states for voluntary reclassifications and such reclassifications in and of themselves do not impose any federal intergovernmental mandate.

Executive Order 13175 (65 FR 67249, November 9, 2000) requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” There are no Indian reservation lands or other areas where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction within the Eastern Kern ozone nonattainment area, and thus, this proposed 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.

This proposed action also does not have Federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This proposed action does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because the EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation.

Reclassification actions do not involve technical standards and 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. This proposed 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.).

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs policies, and activities on minority populations and low-income populations in the United States. This proposed reclassification action relates to ozone, a pollutant that is regional in nature, and is not the type of action that could result in the types of local impacts addressed in Executive Order 12898.