The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0132, dated June 11, 2019 (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE-FALCON 900 airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-0668.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-19-05, Amendment 39-19405 (83 FR 47813, September 21, 2018) (“AD 2018-19-05”). AD 2018-19-05 applied to all Dassault Aviation Model MYSTERE-FALCON 900 airplanes. AD 2018-19-05 specified that accomplishing the actions required by paragraph (g) of that AD terminated the requirements of AD 2016-01-16, Amendment 39-18376 (81 FR 3320, January 21, 2016) (“AD 2016-01-16”); and AD 2017-19-03, Amendment 39-19033 (82 FR 43166, September 14, 2017) (“AD 2017-19-03”). Therefore, this AD also supersedes AD 2016-01-16 and AD 2017-19-03. Additionally, AD 2018-19-05 specified that accomplishing the actions required by paragraph (g) of that AD terminated the requirements of paragraph (g)(1) of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010), for Dassault Aviation Model MYSTERE-FALCON 900 airplanes, which is specified in paragraph (k) of this AD.

The NPRM published in the Federal Register on September 11, 2019 (84 FR 47906). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is issuing this AD to address reduced structural integrity of the airplane. See the MCAI for additional background information.

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

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

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

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

Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, Revision 24, dated September 2018, of the Dassault Aviation Falcon 900 Maintenance Manual. This service information describes procedures, maintenance tasks, and airworthiness limitations specified in the Airworthiness Limitations Section (ALS) of the airplane maintenance manual (AMM).

This AD also requires Chapter 5-40, Airworthiness Limitations, Revision 23, dated September 2017, of the Dassault Aviation Falcon 900 Maintenance Manual, which the Director of the Federal Register approved for incorporation by reference as of October 26, 2018 (83 FR 47813, September 21, 2018).

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.

The FAA estimates that this AD affects 134 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2018-19-05 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although this number may vary from operator to operator. In the past, the FAA has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. The FAA estimates the total cost per operator for the new actions 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.

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

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

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

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

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

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

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

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

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0134, dated June 11, 2019 (“EASA AD 2019-0134”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 900EX airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-0697.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-19-14, Amendment 39-19044 (82 FR 43674, September 19, 2017) (“AD 2017-19-14”); and AD 2014-16-27, Amendment 39-17951 (79 FR 51071, August 27, 2014) (“AD 2014-16-27”). AD 2017-19-14 and AD 2014-16-27 applied to certain Dassault Aviation Model FALCON 900EX airplanes. Further, AD 2014-16-27 terminates paragraph (g)(1) of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010), for certain Dassault Aviation Model FALCON 900EX airplanes, and this terminating provision is included in this AD. The NPRM published in the Federal Register on September 13, 2019 (84 FR 48310). The NPRM was prompted by the FAA's determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is issuing this AD to address, among other things, fatigue cracking and damage in principal structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

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

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

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

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

Dassault Aviation has issued Chapter 5-40, Airworthiness Limitations, Revision 11, dated September 2018, of the Dassault Falcon 900EX EASy, Falcon 900LX, and Falcon 900DX Maintenance Manual. This service information describes procedures, maintenance tasks, and airworthiness limitations specified in the Airworthiness Limitations section of the airplane maintenance manual.

This AD also requires Chapter 5-40, Airworthiness Limitations, Revision 9, dated November 2015, of the Dassault Falcon 900EX EASy, Falcon 900LX, and Falcon 900DX Maintenance Manual, which the Director of the Federal Register approved for incorporation by reference as of October 24, 2017 (82 FR 43674, September 19, 2017).

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.

The FAA estimates that this AD affects 79 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2017-19-14 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. In the past, the FAA has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. The FAA estimates the total cost per operator for the new actions 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.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on September 6, 2019 (84 FR 46898). The NPRM was prompted by a report of fatigue cracking in the lug root radius of an MLG aft hanger link lug fitting. The NPRM proposed to require repetitive surface HFEC inspections of the left and right side MLG aft hanger link lug fitting for cracking, and applicable on-condition actions.

The FAA is issuing this AD to address fatigue cracking in the left and right side MLG aft hanger link lug fittings. This condition, if not addressed, could result in undetected fatigue cracks that can grow and weaken the primary structure such that it cannot sustain limit load, which could adversely affect the structural integrity of the airplane.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comments received.

The Air Line Pilots Association, International (ALPA), Boeing, and Austin Russo expressed support for the NPRM.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:

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

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

The FAA reviewed Boeing Alert Requirements Bulletin B787-81205-SB530070-00 RB, Issue 001, dated August 31, 2018. This service information describes procedures for repetitive surface HFEC inspections of the left and right side MLG aft hanger link lug fitting at the lug root radius for cracking, and applicable on-condition actions. On-condition actions include repair. 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.

The FAA estimates that this AD affects 7 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data that would enable the agency to provide cost estimates for the on-condition actions specified in this AD.

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-300, -400, and -500 series airplanes. The NPRM published in the Federal Register on June 25, 2019 (84 FR 29815). The NPRM was prompted by fuel system reviews conducted by the manufacturer as required by Special Federal Aviation Regulation No. 88 (“SFAR 88”) to 14 CFR part 21, to ensure their fuel tank systems can prevent potential ignition sources. Subsequently, SFAR 88 was amended by: Amendment 21-82 (67 FR 57490, September 10, 2002; corrected at 67 FR 70809, November 26, 2002), Amendment 21-83 (67 FR 72830, December 9, 2002; corrected at 68 FR 37735, June 25, 2003, to change “21-82” to “21-83”), and Amendment 21-101 (83 FR 9162, March 5, 2018). The NPRM proposed to require applying sealant to the fasteners in the fuel tanks, replacing wire bundle clamps external to the fuel tanks, and installing Teflon sleeving under the clamps.

The FAA is issuing this AD to address potential ignition sources inside the fuel tank, which, in combination with flammable vapors, could result in a fuel tank fire or explosion, and consequent loss of the airplane.

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

Boeing concurred with the content of the NPRM.

Aviation Partners Boeing stated that accomplishing Supplemental Type Certificate (STC) ST01219SE does not affect compliance with the proposed actions.

The FAA agrees with the commenter. Paragraph (c) of the proposed AD has been redesignated as paragraph (c)(1) of this AD, and paragraph (c)(2) has been added to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Commenter John Straiton asked that the FAA include a statement in the compliance requirements of the proposed AD allowing the use of later revisions of Boeing Alert Service Bulletin 737-57A1321, dated February 8, 2019. The commenter stated that adding this statement would ensure that operators are promptly in compliance with their obligation to ensure that all maintenance is certified to the latest approved version of the maintenance data. The commenter also stated that adding this statement will also remove the requirement to wait for the AD to be revised to reflect the revision in the service information, and to contact the appropriate original equipment manufacturer or STC holder to issue an AMOC to approve the use of the revised service information. The commenter noted that this would reduce the delay in implementing the revision and would reduce the maintenance costs associated with the issuance of an AMOC. The commenter concluded that the European Union Aviation Safety Agency, which is the Technical Agent for the Member States of the European Union, already incorporates the “or later revision” statement in any AD issued by them, so this will demonstrate a further harmonization of regulatory control.

The FAA does not agree with the commenter's request to allow the use of later revisions of the service information. The FAA may not refer to any document that does not yet exist in an AD. In general terms, the FAA is required by Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference, as specified in 1 CFR 51.1(f), to either publish the service document contents as part of the actual AD language; or submit the service documents to the OFR for approval as referenced material, in which case the FAA may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for incorporation by reference. See 1 CFR part 51. To allow operators to use later revisions of the referenced document (issued after publication of the final rule), either the FAA must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an AMOC to this AD under the provisions of paragraph (i)(1) of this AD. The FAA has not revised this AD regarding this issue.

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

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

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

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

The FAA reviewed Boeing Alert Service Bulletin 737-57A1321, dated February 8, 2019. This service information describes procedures for applying sealant to the fasteners in the fuel tanks at the wing rear spars, front spars, and upper wing rib shear ties. This service information also describes procedures for replacing wire bundle clamps external to the fuel tanks and installing Teflon sleeving under the clamps at locations along the wing rear spars, front spars, forward cargo compartment station 540 bulkhead, and main wheel well station 663 bulkhead. 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.

The FAA estimates that this AD affects 268 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 757-200, -200CB, and -300 series airplanes. The NPRM published in the Federal Register on June 21, 2019 (84 FR 29102). The NPRM was prompted by reports of cracks initiating in the fuselage frame web at STA 1640. The NPRM proposed to require, depending on configuration, a general visual inspection for any previous repair, such as any reinforcing repair or local frame replacement repair, repetitive open hole HFEC inspections for any crack of the fuselage frame web fastener holes, on the left and right side of the airplane, and applicable on-condition actions.

The FAA is issuing this AD to address cracks initiating in the fuselage frame web at STA 1640, which could result in reduced structural integrity of the airplane.

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

United Airlines and Aviation Partners Boeing (APB) provided their concurrence with the NPRM.

Boeing requested that the FAA clarify the costs of the actions required by the NPRM by separating the access and close-out hours as separate actions, and specifying that the on-condition costs are providing the costs of oversizing fastener holes, if necessary. Boeing pointed out that the costs listed also include the access and close-out hours, which comprise the majority of the hours for each action, causing the required actions to appear overly expensive. Boeing mentioned that operators are expected to do either a one-time general visual inspection, followed by an open hole HFEC inspection, or do an open hole HFEC inspection, depending on the condition and utilization rate of the airplane. Boeing also pointed out that the on-condition costs are not defined in the service information and that the NPRM is unclear if the on-condition costs refer to fastener replacement installations or fastener hole oversizing. Additionally, Boeing mentioned that the costs of fastener re-installation are already included in the costs for an open hole HFEC inspection. However, Boeing stated that the FAA estimate of one work-hour per airplane for on-condition costs of oversizing fastener holes seems reasonable.

The FAA agrees with the request to clarify the costs of the actions required by this AD for the reasons provided. The FAA has revised the cost estimates provided in this AD to clarify the costs of the required actions to include access and close-out hours only as part of the costs for the HFEC inspections, and to revise the work-hours for the general visual inspection to specify only 1 work-hour. We have also revised the cost estimates in this AD to specify that the on-condition costs are the costs of oversizing fastener holes.

Boeing requested that the FAA clarify the unsafe condition. Boeing pointed out that the unsafe condition mitigated by the proposed AD is for cracks initiating in the fuselage frame web at STA 1640 in hidden areas that may not be sufficiently detectable by doing the actions specified in Boeing Alert Service Bulletin 757-53A0108.

The FAA agrees that clarification is necessary and that the actions specified in Boeing Alert Service Bulletin 757-53A0108 are not adequate for reliable detection of cracks that initiate in the fuselage frame web at STA 1640. AD 2018-06-07, Amendment 39-19227 (83 FR 13398, March 29, 2018) (“AD 2018-06-07”) requires inspections in accordance with Boeing Alert Service Bulletin 757-53A0108, dated November 14, 2016. However, the FAA does not agree that referring to hidden areas is clarifying, because the term “hidden areas” is vague. The FAA has revised the unsafe condition specified in paragraph (e) of this AD to specify that this AD is addressing cracks initiating in the fuselage frame web at STA 1640, which, if not detected and corrected, could result in reduced structural integrity of the airplane.

Boeing requested that the FAA revise paragraph (g)(2) of the proposed AD to clarify the types of winglets that may be installed on The Boeing Company Model 757 airplanes. Boeing pointed out that the types of winglets described in Supplemental Type Certificate (STC) ST01518SE and in APB's service bulletin AP757-53-002 are specified as “blended and scimitar blended winglets,” not “scimitar winglets.” Boeing also pointed out that paragraph (g)(2) of the proposed AD referred to “blended or scimitar winglets.”

The FAA agrees for the reasons provided and has revised paragraph (g)(2) of this AD accordingly.

FedEx and VT Mobile Aerospace Engineering (MAE) Inc., requested that the FAA revise the NPRM to specify that Group 1 and 4 airplanes that have been modified to freighter configuration using VT MAE Inc. STC ST03562AT, perform the actions specified for Groups 2 and 5, as specified in Boeing Alert Requirements Bulletin 757-53A0112 RB, dated November 16, 2018. VT MAE Inc. pointed out that at the STA 1640 frame, in the stringer 14 left hand side and right hand side area, the modification to freighter configuration using VT MAE Inc. STC ST03562AT, is identical to that of The Boeing Company Model 757-200 special freighter airplanes identified as Groups 2 and 5 in Boeing Alert Requirements Bulletin 757-53A0112 RB, dated November 16, 2018. FedEx noted that its fleet of The Boeing Company Model 757-200 airplanes were converted to a configuration similar to The Boeing Company Model 757-200 special freighter airplanes, and are no longer configured as passenger airplanes. FedEx pointed out that as written, Boeing Alert Requirements Bulletin 757-53A0112 RB, dated November 16, 2018, Groups the FedEx fleet into Groups 1 and 4, and that the inspection areas for those Groups are no longer applicable. FedEx requested that the FAA incorporate its suggested changes into the final rule to avoid the need for an alternative method of compliance (AMOC) after issuance of the final rule.

The FAA agrees with the request for the reasons provided. The FAA has added paragraphs (g)(3) and (g)(4) of this AD to require, for airplanes that have been converted from passenger to freighter configuration using VT MAE Inc. STC ST03562AT, the actions required for Groups 2 and 5, as applicable, as specified in Boeing Alert Requirements Bulletin 757-53A0112 RB, dated November 16, 2018.

FedEx requested that the FAA allow termination of the inspection requirements if a repair is installed for a crack finding. FedEx pointed out that if a repair is installed for a crack finding, the repair instructions obtained from The Boeing Company Organization Designation Authorization (ODA), the STC holder, or the FAA would have repetitive inspection requirements separate from those specified in the NPRM. The FAA infers that FedEx is requesting termination of the inspection requirements to help avoid overlapping inspections in a repaired area.

The FAA disagrees with the request to allow termination of the inspection requirements if a repair is installed for a crack finding. At this time, the service information does not include an approved repair that resolves the unsafe condition addressed by this AD. Inspections for repairs required by FAA regulations address structural failure due to fatigue, corrosion, manufacturing defects, or accidental damage, and do not resolve unsafe conditions that are addressed by an AD. If a repair is required for cracks found during inspections required by this AD, the FAA will consider requests for approval of an AMOC.

FedEx requested that the FAA include a statement in paragraph (i) of the proposed AD specifying that if a repair is required for a crack found during inspections required by the NPRM, that an AMOC for AD 2018-06-07 is required. FedEx mentioned that it has already experienced a situation that when repairing a crack found using Boeing Alert Requirements Bulletin 757-53A0112 RB, dated November 16, 2018, an AMOC to AD 2018-06-07 was required to complete the repair.

The FAA disagrees with the request to include a statement in paragraph (j) of this AD (which was referred to as paragraph (i) of the proposed AD) specifying that if a repair is required for a crack found during inspections required by this AD, that an AMOC for AD 2018-06-07 is required. However, any repair in this area that affects compliance with this AD, with AD 2018-06-07, or with both ADs, will require an AMOC to comply with the requirements of the affected ADs. The FAA has included note 2 to paragraphs (g)(1) through (4) of this AD to denote that certain repairs might affect AD 2018-06-07.

John Straiton requested that the FAA revise the proposed AD to allow the use of later revisions to the service information. The commenter pointed out that allowing the use of later revisions would make it easier for the operator to ensure compliance and that all maintenance is certified to the latest maintenance data. The commenter also mentioned that allowing the use of later revisions would make it unnecessary for operators to wait for new ADs that include the latest revisions to the service information, or for operators to request an AMOC that allows the use of the latest revisions to the service information. The commenter stated that this would reduce the delay in implementation of the latest revisions to the service information and also reduce the maintenance costs associated with the issuance of AMOCs. The commenter also pointed out that the European Union Aviation Safety Agency (EASA) incorporates similar language in its ADs.

The FAA disagrees with the request to allow later revisions to the service information. The FAA may not refer to any document that does not yet exist in an AD. In general terms, the FAA is required by Office of the Federal Register (OFR) regulations for approval of materials incorporated by reference, as specified in 1 CFR 51.1(f), to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as referenced material, in which case the FAA may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for incorporation by reference. See 1 CFR part 51.

To allow operators to use later revisions of the referenced document (issued after publication of the AD), either the FAA must revise the AD to reference specific later revisions, or the affected party must request approval to use later revisions as an AMOC with this AD under the provisions of paragraph (j) of this AD.

American Airlines (AAL) and APB requested that the FAA revise the proposed AD to include a new exception. AAL requested that the FAA include an exception that specifies “Where APB Alert Service Bulletin AP757-53-002, Revision 2, dated April 11, 2019, uses the phrase the original issue of Service Bulletin AP757-53-001, this AD requires using the original issue, or Revision 1, of Service Bulletin AP757-53-001.” APB pointed out that the original issue of APB Service Bulletin AP757-53-001, was withdrawn. APB also stated their support for AAL's request.

AAL also pointed out that while APB Alert Service Bulletin AP757-53-002, Revision 2, dated April 11, 2019, specifies the original issue of APB Service Bulletin AP757-53-001, AD 2018-06-07 requires operators to use Revision 1 of APB Service Bulletin AP757-53-001. AAL noted that this creates conflicting verbiage between the NPRM and AD 2018-06-07.

The FAA agrees to clarify. The FAA notes that APB Alert Service Bulletin AP757-53-002, Revision 3, dated August 14, 2019, has been issued to correct the reference from the original issue of APB Service Bulletin AP757-53-001 to Revision 1 of APB Service Bulletin AP757-53-001, as it relates to whether inspections have previously been done. No additional work is required for airplanes on which the actions specified in this AD were done using APB Alert Service Bulletin AP757-53-002, Revision 2, dated April 11, 2019. The FAA has revised this final rule to refer to APB Alert Service Bulletin AP757-53-002, Revision 3, dated August 14, 2019, as the appropriate source of service information for compliance with this AD, and to provide credit for actions done before the effective date of this AD using APB Alert Service Bulletin AP757-53-002, Revision 2, dated April 11, 2019.

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

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

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

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

The FAA reviewed the following service information.

• Aviation Partners Boeing Alert Service Bulletin AP757-53-002, Revision 3, dated August 14, 2019.

• Boeing Alert Requirements Bulletin 757-53A0112 RB, dated November 16, 2018.

This service information describes procedures for, depending on configuration, a general visual inspection for any previous repair, such as any reinforcing repair or local frame replacement repair, repetitive open hole HFEC inspections for any crack of the fuselage frame web fastener holes, on the left and right side of the airplane, and applicable on-condition actions. On-condition actions include installation of fasteners, oversizing of fastener holes, and repair. These documents are distinct since they apply to different airplane models in different configurations.

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.

The FAA estimates that this AD affects 475 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition installation of fasteners and oversizing of fastener holes that is required. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

NMFS published the final rule issuing regulations to implement catch handling and monitoring requirements to allow halibut bycatch to be sorted on the deck of trawl C/Ps and motherships participating in the non-pollock groundfish fisheries off Alaska in the Federal Register on October 15, 2019 (84 FR 55044). The final rule incorrectly stated that the collection-of-information requirements subject to the PRA had been approved by the OMB under Control Number 0648-0318 (North Pacific Observer Program) and Control Number 0648-0330 (Alaska Region, Scale and Catch Weighing Requirements) at the time the final rule was published. The effective date for the final rule's collection of information requirements is delayed. When OMB approval is received, NOAA will publish a document in the Federal Register announcing the effective date for these information collection requirements.

Although the proposed and final rule preambles explained that certain obsolete and unnecessary regulations would be removed, the final rule inadvertently omitted amendatory language to remove a now obsolete and unnecessary regulation. This rule corrects this error.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is unnecessary and contrary to the public interest. With respect to the final rule's inadvertent omission of amendatory text that would remove the obsolete and unnecessary regulation, the public was already provided with notice and opportunity to comment via electronic submission (www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0122) and by mail during the proposed rule public comment period which began on April 16, 2019 and ended on May 16, 2019. Further delay would result in public confusion with respect to the effectiveness of the remaining regulations established by the final rule.

For the reasons above, the AA also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make this rule effective immediately upon publication.

In final rule FR Doc. 2019-22198, published on October 15, 2019 (84 FR 55044), the following corrections are made:

1. On page 55044, in the second column, under “National Oceanic and Atmospheric Administration”, “15 CFR 902.1” is removed and “15 CFR part 902” added in its place.

2. On page 55050, second column, the heading “OMB Revisions to PRA References in 15 CFR 902.1(b)” and corresponding paragraph are removed.

3. On page 55051, first column, the first sentence of the last paragraph is corrected to read as follows:

This final rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval under Control Number 0648-0318 (North Pacific Observer Program) and Control Number 0648-0330 (Alaska Region, Scale and Catch Weighing Requirements). When approval is received, NMFS will announce in the Federal Register the effective date for these information collection requirements.

Accordingly, 15 CFR part 902 and 50 CFR part 679 are corrected by making the following correcting amendments:

On September 2, 2016, the Department published a final rule that implemented the Fixing America's Surface Transportation Act (FAST Act), codified at 22 U.S.C. 2714a (the 2016 Final Rule). See 81 FR 60608.1

The rulemaking incorporated statutory passport denial and revocation requirements for certain individuals who have been certified by the Secretary of the Treasury as having seriously delinquent tax debt or who submit passport applications without correct and valid Social Security numbers.

The 2016 Final Rule, as codified at 22 CFR 51.60(a)(3), led to an unintended result. That rule provided that applicants for a passport who are certified by the Secretary of the Treasury as having a seriously delinquent tax debt as described in 26 U.S.C. 7345 may not be issued a passport, except a passport for direct return to the United States. This is a too-narrow implementation of the law, since 22 U.S.C. 2714a(e)(1)(B) provides that not only may the Department issue a certified individual a passport valid for direct return to the United States, but the Department also has the discretion to issue passports without geographical limitation to such applicants if the Department finds that emergency circumstances or humanitarian reasons exist.

With respect to the current text of § 51.60, the modification in the rulemaking will remove the text of paragraph (a)(3) of § 51.60, and add it to a new paragraph (h)(2) of § 51.60, since paragraph (h) applies to situations where the Department must generally deny passport applications except for passports valid for direct return to the United States, but can exercise discretion to issue passports where it determines that emergency circumstances or humanitarian reasons exist. Paragraph (a)(3) is reserved. The chapeau of § 51.60(h), regarding notification by the Attorney General of violations of 18 U.S.C. 2423, is moved to a new paragraph (h)(1).

The Administrative Procedure Act (APA) provides that an agency is not required to conduct notice and comment rulemaking when the agency, for good cause, finds that the requirement is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). There is good cause here because this amendment simply aligns 22 CFR 51.60 with current law. It does not establish any substantive policy. Since this change is implementing current law, public comment on this change is unnecessary and contrary to the public interest. The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because this final rule aligns the Department's rules with federal law, there is good cause to make it effective on the day it is published.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign based companies in domestic and import markets.

The Department of State does not consider this rule to be an economically significant regulatory action under Executive Order 12866, Regulatory Planning and Review. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in both Executive Order 12866 and Executive Order 13563, and certifies that the benefits of this regulation outweigh any cost to the public, which the Department assesses to be de minimis.

This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

This rule does not impose any new reporting or record keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Accordingly, for the reasons set forth in the preamble, the Department amends 22 CFR part 51 as follows:

The Pension Benefit Guaranty Corporation (PBGC) administers the pension plan termination insurance program under title IV of the Employee Retirement Income Security Act of 1974 (ERISA). PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) sets forth (in subpart B) the methods for valuing plan benefits of terminating single-employer plans covered under title IV. Guaranteed benefits and benefit liabilities under a plan that is undergoing a distress termination must be valued in accordance with subpart B of part 4044. In addition, when PBGC terminates an underfunded plan involuntarily pursuant to ERISA section 4042(a), it uses the subpart B valuation rules to determine the amount of the plan's underfunding.

Under § 4044.51(b) of the asset allocation regulation, early retirement benefits are valued based on the annuity starting date, if a retirement date has been selected, or the expected retirement age, if the annuity starting date is not known on the valuation date. Sections 4044.55 through 4044.57 set forth rules for determining the expected retirement ages for plan participants entitled to early retirement benefits. Appendix D of part 4044 contains tables to be used in determining the expected early retirement ages.

Table I in appendix D (Selection of Retirement Rate Category) is used to determine whether a participant has a low, medium, or high probability of retiring early. The determination is based on the year a participant would reach “unreduced retirement age” (i.e., the earlier of the normal retirement age or the age at which an unreduced benefit is first payable) and the participant's monthly benefit at unreduced retirement age. The table applies only to plans with valuation dates in the current year and is updated annually by PBGC to reflect changes in the cost of living, etc.

Tables II-A, II-B, and II-C (Expected Retirement Ages for Individuals in the Low, Medium, and High Categories respectively) are used to determine the expected retirement age after the probability of early retirement has been determined using Table I. These tables establish, by probability category, the expected retirement age based on both the earliest age a participant could retire under the plan and the unreduced retirement age. This expected retirement age is used to compute the value of the early retirement benefit and, thus, the total value of benefits under the plan.

This document amends appendix D to replace Table I-19 with Table I-20 to provide an updated correlation, appropriate for calendar year 2020, between the amount of a participant's benefit and the probability that the participant will elect early retirement. Table I-20 will be used to value benefits in plans with valuation dates during calendar year 2020.

PBGC has determined that notice of, and public comment on, this rule are impracticable and contrary to the public interest. Plan administrators need to be able to estimate accurately the value of plan benefits as early as possible before initiating the termination process. For that purpose, if a plan has a valuation date in 2020, the plan administrator needs the updated table being promulgated in this rule. Accordingly, PBGC finds that the public interest is best served by issuing this table expeditiously, without an opportunity for notice and comment, and that good cause exists for making the table set forth in this amendment effective less than 30 days after publication to allow as much time as possible to estimate the value of plan benefits with the proper table for plans with valuation dates in early 2020.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866 and Executive Order 13771.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

In consideration of the foregoing, 29 CFR part 4044 is amended as follows:

The Coast Guard will enforce the safety zone in the Table to 33 CFR 165.506, entry (a)(16), for the Delaware River Waterfront Corporation New Year's Eve Fireworks displays. This action is necessary to ensure safety of life on the navigable waters of the United States immediately prior to, during, and immediately after the fireworks displays. Our regulation for safety zones of fireworks displays within the Fifth Coast Guard District, table to § 165.506, entry (a)(16) specifies the location of the regulated area as all waters of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, within 500 yards of a fireworks barge at approximate position latitude 39°56′49″ N, longitude 075°08′11″ W. During the enforcement periods, as reflected in § 165.506(d), vessels may not enter, remain in, or transit through the safety zones unless authorized by the Captain of the Port or on scene designated Coast Guard patrol personnel.

In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide notification of this enforcement period via broadcast notice to mariners.

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

The purpose of this rule is to ensure the safety of vessels on the navigable waters of the Ohio River during the demolition of Lock and Dam 52. During this time, a temporary safety zone on the Ohio River would be necessary to protect persons, property, and infrastructure from potential damage and safety hazards associated with the demolition of Lock and Dam 52. In response, on July 8, 2019, the Coast Guard published an interim final rule titled Safety Zone; Ohio River, Brookport, IL (84 FR 34299). There we stated why we issued the interim final rule, and invited comments on our regulatory action related to the demolition of the Lock and Dam 52 on the Ohio River. During the comment period that ended August 19, 2019, we received no comments.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with demolition of Lock and Dam 52 involving explosives will be a safety concern for anyone on the Ohio River from mile marker (MM) 937 to MM 941. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the demolition of Lock and Dam 52 involving explosives.

This rule establishes a temporary safety zone that covers all navigable waters of the Ohio River from MM 937 to MM 941. This rule will be enforced every day at midday from December 3, 2019 through December 1, 2020 as necessary to facilitate safe demolition of Lock and Dam 52. A Broadcast Notices to Mariners (BNMs) will be issued six hours prior to the start of blasting to notify the public that the safety zone is being enforced. Vessels will be able to transit the safety zone when explosives are not being detonated. This safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the detonation of explosives for the demolition. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative during demolition operations involving explosives. The text of the rule remains unchanged, but the effective period is extended to facilitate safe demolition through the anticipated completion of the operations.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. This safety zone will only be enforced between MM 937 to MM 941 for a short period of time each day and will only impact a small portion of the Ohio River. Additionally, this safety zone will only be enforced in daytime hours during the demolition operations of the Lock and Dam 52.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone for the demolition of Lock and Dam 52 involving explosives on the Ohio River in Brookport, IL. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

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

In conjunction with Illinois' adoption of SO2 emission limits for major sources, the state adopted rule revisions (Sulfur Content Rule) to limit the sulfur content of distillate and residual fuel oil combusted at stationary sources throughout the state. See 35 Ill. Adm. Code 214.161(b)(2) and 214.305(a)(2). The Sulfur Content Rule specifically requires that the sulfur content of distillate fuel oil combusted on or after January 1, 2017, not exceed 15 parts per million (ppm). The rule applies to owners and operators of existing fuel combustion emission and process emission sources that burn liquid fuel.

Illinois' Sulfur Content Rule, containing 35 Ill. Adm. Code 214.161(b)(2) and 214.305(a)(2), was submitted to EPA as a SIP revision on March 2, 2016, and EPA issued an approval in the Federal Register on February 1, 2018 (83 FR 4591) and May 29, 2018 (83 FR 24406).

On May 18, 2016, pursuant to Section 35(a) of the Illinois Environmental Protection Act, 415 ILCS 5/34(a), and Part 104 of Title 35 of the Illinois Administrative Code, 35 Ill. Adm. Code 104.100, Exelon filed a Petition for Variance with the IPCB regarding its Byron (Ogle County), Clinton (DeWitt County), Dresden (Grundy County), and LaSalle (LaSalle County) nuclear generation stations. See Exelon Generation, LLC v. Illinois Environmental Protection Agency, PCB 16-106. Section 35 of the Illinois Environmental Protection Act provides that the IPCB, under state law, “may grant individual variances . . . whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation . . . would impose an arbitrary or unreasonable hardship.” (IPCB's granting of such a variance under state law, however, does not automatically revise what is federally enforceable under the SIP; only if Illinois submits and EPA approves a SIP revision reflecting the granting of the variance can the federally enforceable SIP be revised.) Exelon requested temporary relief from the 15 ppm sulfur content limitation for distillate fuel oil set forth in 35 Ill. Adm. Code 214.161(b)(2). On September 8, 2016, the IPCB granted the variance subject to a number of conditions.

On June 16, 2016, Calpine also filed a Petition for Variance with the IPCB regarding the Zion Energy Center. See Calpine Corporation (Zion Energy Center) v. Illinois Environmental Protection Agency, PCB 16-112. On August 8, 2016, Calpine filed an Amended Petition for Variance with the IPCB, requesting temporary relief from the 15 ppm sulfur content limitation for distillate fuel oil set forth in 35 Ill. Adm. Code 214.161(b)(2). On November 17, 2016, the IPCB granted the variance from January 1, 2017, to December 31, 2021, subject to several conditions. IPCB also granted the motion on August 17, 2017, amending its order to correct the errors.

The Petition for Variance sought relief from provisions that were approved into the Illinois SIP. Those SIP provisions remain in effect and enforceable unless and until EPA revises the SIP to incorporate the variances. Thus, following the decision by IEPA to approve the variances, IEPA submitted them to EPA for approval as SIP revisions.

On February 6, 2018, IEPA formally submitted a request for EPA approval to amend the Illinois SIP for the 2010 1-hour SO2 NAAQS to account for two variances granted by the IPCB to Calpine and Exelon. The submittal included an analysis of the potential impact of the variances on air quality, specifically with respect to the 2010 1-hour SO2 NAAQS. This analysis was part of the variance applications submitted by Calpine and Exelon to the IPCB.

On June 12, 2019, at 84 FR 27212, EPA proposed to approve IEPA's request to amend the Illinois SIP to reflect the variances granted by the IPCB for Calpine and Exelon.

Our June 12, 2019 proposed rule provided a 30-day comment period. The comment period closed on July 12, 2019. EPA received comments from one party during the public comment period. In this section we are responding to the comments received.

Comment. The commenter generally states that EPA should not approve the variances addressed in the proposal. The commenter specifically notes that the sources' claim that they are economically burdened by the imposition of the state's rule requiring compliance with sulfur limits of no greater than 15 ppm is factually incorrect. In addition, the commenter asserts that the facilities should not be allowed to dilute the 15 ppm fuel with any remaining high sulfur fuel and that they should immediately sell any remaining non-compliant fuel and stop burning diluted fuel with non-compliant sulfur limits.

Response. As discussed in more detail in the June 12, 2019 proposed approval, both Exelon and Calpine considered several potential options to comply with the Sulfur Content Rule as of January 1, 2017. Such options included combusting all the non-compliant fuel; continuing to dilute the fuel's sulfur content concentrations with ultra-low sulfur diesel (ULSD); draining all the storage tanks and refilling them with ULSD. According to the IPCB, both companies demonstrated that none of the compliance alternatives evaluated were practicable for meeting the 15 ppm sulfur limit by January 1, 2017 and presented a substantial hardship to the companies. EPA agrees with IPCB's evaluation that substantial hardship exists based on review of support documentation provided to the IPCB and included as part of the SIP revision submitted to EPA. Exelon's plan for complying with the Sulfur Content Rule by the end of the variance period outlined by the IPCB calls for continuing to replenish the lower sulfur tanks with ULSD; and, as part of a coordinated program, emptying the higher sulfur tanks and refilling them with ULSD. Under Calpine's compliance plan, the facility would comply with the Sulfur Content Rule by January 1, 2022 by continuing to purchase only fuel with sulfur content below 15 ppm. This ensures that the sulfur content of the fuel used at the facility will continue to decrease. During the variance period, the sulfur content of all distillate oil combusted by Calpine must not exceed 115 ppm sulfur content. EPA believes that both compliance plans provide enough flexibility to allow Exelon and Calpine to address their hardship concerns while also requiring full compliance with the Sulfur Content Rule at the end of the variance period. The commenter did not submit any specific information for EPA review to substantiate its claim that the companies' hardship concerns were factually incorrect.

In addition, while hardship is a prerequisite for state variance issuance in this case, hardship is not a prerequisite for Federal approval. The state regulation under which it grants variances is not part of the SIP. Hardship is a defensible criterion for the state to use in allocating air quality resources, but it is not a criterion under the CAA, nor is EPA obliged in this case to judge whether it would have made the same determination as the state. EPA here needs only to judge whether the approval of these variances into the SIP interferes with attainment and reasonable further progress or any other applicable CAA requirement.

Comment. The commenter raises concerns that the state did not perform an appropriate CAA section 110(l) analysis to determine what effect these units would have on the 2010 1-hour SO2 NAAQS. Further, the commenter states that EPA should evaluate situations when all the engines are being used at the same time since they appear to be emergency units that would likely be turned on at the same time.

Response. Both Exelon and Calpine submitted an analysis of the potential impact of their respective variances on air quality, specifically with regard to the 2010 1-hour SO2 NAAQS. These analyses were part of the variance applications submitted to the IPCB. In addition, IEPA and EPA independently evaluated the impact of both variances and concluded that the facilities would not contribute to current SO2 nonattainment areas, and that they would not cause any current attainment area to violate the SO2 NAAQS. In addition, EPA concluded that the impact of these variances with regards to section 110(l) do not result in emissions increases above the levels of emissions that were in place when EPA designated these counties as attainment/unclassifiable for the 2010 1-hour SO2 NAAQS, but rather result in deferred emission reductions during the variance period (unachieved emissions reductions). While these variances delay the emission reductions provided by the approved state rule, these reductions are not necessary to achieve attainment in these areas, since EPA concluded that these areas were attaining the standard even before the reductions required by Illinois' rule were to commence. Specifically, as discussed in more detail in the June 12, 2019 proposed approval, EPA designated all of these counties as attainment/unclassifiable on January 9, 2018, based on monitoring data from 2014 to 2016 and emissions information that predated the January 1, 2017 compliance date of Illinois' fuel sulfur regulation.

The information submitted by the state was sufficient to assess whether the requirements of section 110(l) were met. For the Exelon variance, the potentially affected geographic areas include portions of the four counties in which the Exelon facilities are located. Each of these counties is designated as attainment/unclassifiable for the 2010 1-hour SO2 NAAQS. This includes Ogle County for Byron Station, LaSalle County for LaSalle Station, Grundy County for Dresden Station and DeWitt County for Clinton Station. The combined backup diesel storage capacity for the four Exelon stations which are part of this variance is 782,668 gallons. Using the maximum capacity of diesel fuel with a worst case 250 ppm sulfur content would result in 1.7 tons of combined unachieved emissions reductions during the variance period (0.443 tons at the Byron station; 0.238 tons at the Clinton station; 0.343 tons at the Dresden station; and 0.342 tons at the LaSalle station). A calculation of expected unachieved emissions reductions based on a more realistic projection, which uses a five-year average annual fuel usage at each station and current sulfur concentrations of the fuel in the pertinent tanks (based on the highest measure sulfur content fuel in the largest tanks at the Byron, Clinton, and Dresden stations and an average at the LaSalle station), would result in unachieved emissions reductions on a yearly basis during the variance period totaling less than one-tenth of one ton for all the stations combined.

The 2010 1-hour SO2 NAAQS (or standard) is 75 parts per billion (ppb) based on the “design value” (the three-year average of annual 99th percentile daily maximum 1-hour average concentrations). IEPA maintains fifteen (15) SO2 air monitors throughout the state. While these monitors are at a substantial distance from the sources that were granted variances, none of the monitors closest to the sources recorded any exceedances of the 75 ppb standard between 2014-2016, the design value timeframe immediately before Illinois implemented its statewide Sulfur Content Rule requirement. The highest 1-hour design value (2014-2016) for the nearest SO2 monitoring sites to the Exelon sources ranged from 11 ppb to 44 ppb. Also, as stated above, EPA concluded that the impact of this variance with regards to section 110(l) does not result in emissions increases above the levels of emissions that were in place when these counties were designated as attainment/unclassifiable for the 2010 1-hour SO2 NAAQS, but rather result in unachieved emission reductions that are deferred during the variance period.

For the Calpine variance, the backup distillate oil in the tank at the Zion Energy Center would allow for approximately 68.6 hours of turbine operation or approximately 22.8 hours for each of the three combustion turbines at the facility. Using the remaining distillate oil with 115 ppm sulfur content would result in actual unachieved emissions of 0.77 tons of SO2 over the five-year term of the variance, or 0.15 tons per year. The modeling conducted for this variance to demonstrate the environmental impact of using distillate oil with 115 ppm sulfur content shows that the air quality in potentially impacted areas will remain far below the 2010 1-hour SO2 NAAQS, and the facility will not cause a modeled NAAQS exceedance.

The nearest SO2 monitoring sites to Calpine did not record any exceedances in 2013 (IEPA 2013) when Calpine had a permitted sulfur limit of 480 ppm. The highest 1-hour monitored value in 2013 for those sites are 14 ppb and 10 ppb (36.7 ug/m3 and 26.2 ug/m3). Calpine is also approximately 90 kilometers from the nearest nonattainment area for the 2010 1-hour SO2 NAAQS, Lemont (AQS ID 17-031-16010). Based on available air quality modeling results, Calpine is not contributing to these monitors.

The commenter is concerned about the possibility that all of the backup generators being granted variances might operate simultaneously. Given the distances between the different affected facilities, air quality near any one of these facilities would not reflect any detectable impact from any level of operation of pertinent SO2 sources at any of the other affected facilities. The more germane question is whether full simultaneous usage of the variance by the affected units at any one of these facilities would cause air quality concerns. The available information demonstrates that these areas are attaining by sufficient margin and the impact of these variances is sufficiently small that these variances would not interfere with attainment or any other CAA requirement.

Comment. The commenter does not believe the variances should be approved because the Round 3 SO2 designations did not account for these units burning non-compliant sulfur fuel. The commenter believes that if these units were to turn on all at the same time near a Round 3 or Round 4 SO2 designation source, the 2010 1-hour SO2 NAAQS could be violated. EPA must affirmatively determine whether this is a possibility and whether the sources could contribute to a violation of a 2010 1-hour SO2 NAAQS.

Response. In fact, the Round 3 SO2 designations did account for these emissions. These designations were based on actual emissions in these areas. While the variances authorize the affected sources to defer any decrease in emissions as soon as would otherwise be required, the designation reflects available evidence indicating that the areas were attaining the standard even before the emission reductions from Illinois' low sulfur fuel oil rule took effect in these areas.

All the facilities that received these variances from IPCB are located in separate counties that were designated by EPA as attainment/unclassifiable for the 2010 1-hour SO2 NAAQS during the Round 3 SO2 designations process. As part of its evaluation of the variances, IEPA examined the locations of the affected facilities in comparison to areas that were investigated and modeled for future area designation recommendations (Round 2 and Round 3 SO2 designations process), and found that there was no overlap; IEPA determined, and EPA concurs, that it did not believe that the facilities associated with these variances would impact potential future nonattainment areas or change the designation for any of the counties where the facilities are located. Because of their relatively low SO2 contribution levels, none of the facilities were required by EPA's SO2 Data Requirement Rule (DRR) to be discretely modeled during the Round 3 SO2 designations process. However, EPA designated the pertinent counties as attainment unclassifiable on the basis of 2014 to 2016 monitored air quality data and emissions information, reflecting air quality before the January 1, 2017 compliance date for Illinois' fuel sulfur regulation. The variances do not change this assessment because their impact does not result in emissions increases above the levels of emissions that were in place during the Round 3 designations process, but rather result in unachieved emission reductions that are deferred during the variance period. As outlined earlier, the design value for the closest monitors to the facilities are sufficiently below the 2010 1-hour SO2 NAAQS and even assuming that the combined deferred emissions reduction of 2.47 tons were to be considered an emission increase and were to occur at one time, it would not trigger a violation of the 2010 1-hour SO2 NAAQS. In addition, the impact of these variances is minimized by the fact the all the facilities are located outside of each other facility's reasonable modeling domain and would not have the potential to cause any significant concentration gradients within an area of analysis.

Regarding Round 4 SO2 designations, Illinois installed and began operation of a new monitoring network near a pair of DRR sources in Macon County by January 1, 2017. Under a court-ordered designation schedule, EPA is required by December 31, 2020, to designate this area (Macon County) using three years (2017-2019) of quality-assured data to be collected from this network. None of the Exelon and Calpine units that are part of this variance request are in Macon County or are within the reasonable modeling domain and would not have the potential to cause any significant concentration gradients within the area of analysis.

Comment. The commenter states that even if EPA believes the variance is appropriate, EPA should instead require the affected facilities to utilize the non-compliant fuel first using a “first in, first out” method, so that the non-compliant fuel is used up faster, thereby reducing the time it takes for the facilities to come into compliance with the state rule and the SIP. The commenter further states that EPA should require the facilities to use up any non-compliant fuel first without dilution so that the time in non-compliance is limited and any violation of the SIP and state law is limited to a short time period.

Response. Requiring the affected facilities to utilize non-compliant fuel using a “first in, first out” method is not practicable in this situation because of the number of tanks that are affected; the location of these tanks in the facilities; and because of the legal and contractual restrictions that require both companies to maintain a specified volume of fuel on hand. In Exelon's case, the Nuclear Regulatory Commission regulations require that the facilities store and maintain on-site enough fuel to power the emergency equipment for up to seven days and ensure nuclear safety. As the fuel is depleted, Exelon is obligated to replenish the tanks to maintain the required seven-day supply, which would result in burning compliant fuel, as well as non-compliant fuel. In addition, Exelon indicates that the Federally Enforceable State Operating Permits for the facilities restrict the usage of, and emissions from, the emergency equipment. Similarly, some of the equipment is subject to Federal New Source Performance Standards for “Stationary Compression Ignition Internal Combustion Engines” (40 CFR part 60, subpart IIII) and the National Emission Standards for Hazardous Air Pollutants for ”Stationary Reciprocating Internal Combustion Engines” (40 CFR part 63, subpart ZZZZ), which also restrict the amount of time the emergency equipment can be operated.

In Calpine's case, the company is contractually obligated to maintain 12 hours of backup fuel in case of emergency, so draining the tanks would violate this obligation and risk public safety. In its hardship assessment, Calpine argued that it cannot combust all its distillate oil without violating its Clean Air Act Permit Program permit that was reissued on October 16, 2014 (ID NO. 097200ABB, Application No. 99110042). Under its permit, the facility may only combust distillate oil for limited purposes including when natural gas is unavailable or for shakedown, evaluation, and testing of the turbines. Therefore, the facility's permit and economic conditions prevented burning the entire supply of the distillate oil supply before January 1, 2017. Additionally, Calpine argues that draining the storage tanks would impose a substantial hardship. Draining the tanks would entail purchasing and installing new equipment and revising facility plans that safeguard fuel spills at a substantial cost. As part of their variance agreement, both Exelon and Calpine are required to fully comply with the Sulfur Content Rule and will incur the costs necessary to achieve compliance. The companies only seek additional time to comply with the requirements of the Sulfur Content Rule within their current regulatory and contractual framework.

EPA is approving the revision to the Illinois SIP submitted by the IEPA on February 6, 2018, because the variances granted by the IPCB for Calpine and Exelon meet all applicable requirements and would not interfere with attainment of the 2010 1-hour SO2 NAAQS.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the IPCB Opinion and Orders of the Board described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and/or at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.1

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 7, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.)

40 CFR part 52 is amended as follows:

On August 1, 2019 (84 FR 37607), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the NPRM, EPA proposed approval of three separate SIP revisions from Virginia addressing RACT under the CAA for the 2008 ozone NAAQS for three facilities in Northern Virginia. The formal SIP revisions were submitted by the Virginia Department of Environmental Quality (VADEQ) on February 1, 14, and 15, 2019 and address the following facilities: Possum Point Power Station, Covanta Fairfax, and Covanta Alexandria/Arlington.

RACT is important for reducing oxides of nitrogen (NOX) and volatile organic compounds (VOC) emissions from major stationary sources within areas not meeting the ozone NAAQS. Since the 1970's, EPA has consistently defined “RACT” as the lowest emission limit that a particular source is capable of meeting by the application of the control technology that is reasonably available considering technological and economic feasibility.1 RACT is applicable to ozone nonattainment areas which are classified as moderate or above, or any areas located within the Ozone Transport Region (OTR). General RACT requirements are set forth in section 172(c)(1) of the CAA, while ozone specific requirements are found in sections 182 and 184 of the CAA.

On March 12, 2008, EPA revised the 8-hour ozone standards, by lowering the standard to 0.075 parts per million (ppm) averaged over an 8-hour period (2008 ozone NAAQS). See 73 FR 16436. Under the 2008 ozone NAAQS, only the Northern portion of Virginia is subject to RACT due to its location in the OTR, as there are no moderate nonattainment areas in Virginia under the standard. The OTR portion of Virginia consists of the Arlington County, Fairfax County, Loudoun County, Prince William County, Alexandria City, Fairfax City, Falls Church City, Manassas City, Manassas Park City, and Strafford County. The three facilities which are the subject of this rulemaking action are located in Northern Virginia.

Virginia's February 1, 14, and 15, 2019 SIP revisions address NOX and/or VOC RACT for the following facilities: Virginia Electric and Power Company—Possum Point Power Station, Covanta Alexandria/Arlington, Inc., and Covanta Fairfax, Inc. VADEQ is adopting as part of these SIP revisions additional NOX control requirements for these three facilities to meet RACT under the 2008 ozone NAAQS, all of which are implemented via federally enforceable permits issued by VADEQ. These RACT permits, as listed on Table 1, have been submitted as part of each SIP revision for EPA's approval into the Virginia SIP under 40 CFR 52.2420(d).

Virginia's source specific RACT determinations include an evaluation of NOX and/or VOC controls that are reasonably available for the affected emissions units at each facility and its determination of which control requirements satisfy RACT. VADEQ submitted federally enforceable permits with the purpose of implementing the requirements of 9VAC5, Chapter 40 (9VAC5-40), sections 7400, 7420, and 7430.

As part of the February 1, 2019 SIP revision, VADEQ is addressing RACT for the Possum Point Power Station, an electrical generation utility (EGU) facility located in Prince William County owned and operated by Virginia Electric and Power Company. This EGU facility is considered a major source of NOX and VOC. VADEQ has adopted additional NOX RACT requirements for Possum Point Power Station's electric generating boiler ES-5 as part of the facility's Permit to Operate issued on January 31, 2019 and included for approval into the SIP. Given the potential retirement of boiler ES-5, VADEQ determined RACT for boiler ES-5 based on the two possible operating scenarios: (1) The installation and operation of selective non-catalytic reduction (SNCR) by June 1, 2019, in the scenario that the unit remains operational after such date; or (2) the retirement of the unit by June 1, 2021, in the scenario that the unit is or will be retired.

As part of the February 1, 2019 SIP revision, VADEQ also recertified applicable NOX and VOC controls for the other two electric generating boilers (ES-3 and ES-4) at Possum Point Power Station as well as VOC controls for boiler ES-5, all of which were previously approved as RACT on a source-specific basis. VADEQ also determined that additional VOC controls are not economic or technically feasible for this facility, given the size and VOC emissions from individual emissions units.

As part of the February 14, 2019 and February 15, 2019 SIP revisions, VADEQ is addressing NOX RACT for two municipal waste combustion (MWC) facilities with energy recovery: Covanta Fairfax, Inc. (Covanta Fairfax) and Covanta Alexandria/Arlington, Inc. (Covanta Alexandria/Arlington). These MWC facilities are located in Lorton, in Fairfax County and the City of Alexandria, respectively, and are considered major sources of NOX. VADEQ determined the following control measures as NOX RACT for each MWC unit at Covanta Fairfax and Covanta Alexandria/Arlington: the installation and operation of Covanta's proprietary low NOX combustion system, the operation (and optimization as needed) of the existing SNCR, a daily NOX average limit of 110 parts per million, volumetric dry (ppmvd) corrected at 7% oxygen (O2), and an annual NOX average limit of 90 ppmvd at 7% O2. The NOX RACT control requirements for the four MWC units at Covanta Fairfax have been adopted as part of the facility's Permit to Operate issued on February 8, 2019; while those for the three MWC units at Covanta Alexandria/Arlington have been adopted as part of the facility's Permit to Operate issued by on February 8, 2019.

EPA believes that VADEQ has considered and adopted reasonably available NOX and/or VOC controls for each of these facilities. EPA finds that the additional NOX control requirements adopted by VADEQ in the respective federally enforceable permits are adequate to meet RACT for these sources. EPA also finds that re-certification of existing source-specific requirements for Possum Point Station is adequate to meet RACT. Further, EPA determines that the additional NOX RACT control requirements adopted for each facility are more stringent than the applicable SIP-approved NOX RACT requirements, so that approval of these permits into the SIP would be consistent with section 110(l) of the CAA. Other specific requirements of VADEQ's source-specific determinations and the rationale for EPA's proposed action are explained in the NPRM and the related Technical Support Document (TSD) and will not be stated here.

EPA received three comments on the August 1, 2019 NPRM. One comment EPA considers to not be adverse to this action and does not require a response. The other two comments each contend that EPA should not approve Virginia's RACT SIP, alleging effects of this rulemaking action on nuclear power facilities. A summary of the comments and EPA's response is discussed in this Section. A copy of the comments can be found in the docket for this rulemaking action.

Comment: The first commenter claims that EPA should not approve Virginia's RACT SIP determinations because it would make the State's nuclear power plants too expensive and prevent the development of the State's commercial nuclear program.

EPA Response: The commenter did not indicate how the imposition of RACT controls on the three facilities that are the subject of this rulemaking would negatively affect Virginia's nuclear power program. EPA finds that the subject of the effects of these SIP revisions on Virginia-based nuclear power is irrelevant to this rulemaking action. The SIP revisions addressed in this rulemaking evaluate air pollution controls for NOX and VOC at three facilities in Northern Virginia, none of which are nuclear power plants.

Comment: The second commenter claims that Virginia's RACT determination for Possum Point lacks adequate information and that EPA's rulemaking action is unsupported, because EPA “ignored the fact that at least a dozen other large power plants including those of the coal-dependent Appalachian states of Virginia, West Virginia, and Kentucky, have similar nuclear waste storage capacity.” The commenter also argues that EPA needs to evaluate “the cost of other utilities and other power generating utilities when forcing costly controls on plants such as this” as well as “the increased cost of ratepayers when forcing states to evaluate expensive controls on publicly owned utilities like in Virginia.”

EPA Response: The commenter does not explain how power plants with nuclear storage capacity are related to this rulemaking action, nor identify any facilities of concern to allow EPA to further assess this claim. As indicated earlier, the SIP revisions addressed in this rulemaking evaluate air pollution controls for NOX and VOC at three facilities in Northern Virginia, none of which are nuclear power plants. In particular, Possum Point Power Station is a thermal power plant in which electricity is produced by converting heat energy to electrical power through the combustion of natural gas in turbines and boilers. In addition to the topic of nuclear power being irrelevant, EPA also notes that the commenter does not provide in its comment which costs EPA should have evaluated as part of this rulemaking action and for which “utilities” this was needed.

EPA disagrees with the assertions that Virginia's RACT determination for Possum Point lacks adequate information and that EPA's proposed rulemaking action to approve this determination is unsupported. The commenter provided no new or additional data for EPA to evaluate in support of its allegations and does not explain how “increased cost to the rate payer” should be evaluated as a factor beyond the statutory and regulatory factors EPA cited in the TSD for establishing RACT. EPA continues to rely upon the data cited in the NPRM and in the statutory and regulatory factors established for evaluating RACT. See, e.g., International Fabricare Institute v. E.P.A., 972 F.2d 384 (D.C. Cir. 1992). (The Administrative Procedures Act does not require that EPA change its decision based on “comments consisting of little more than assertions that in the opinions of the commenters the agency got it wrong,” when submitted with no accompanying data.) As set forth in the NPRM, EPA has determined that the February 1, 2019 SIP revision includes adequate information to support Virginia's RACT determination for this facility. As part of the February 1, 2019 SIP revision, the Commonwealth of Virginia evaluated the technical and economic feasibility of installing and operating additional air pollution control devices of NOX and/or VOC for each emissions unit at Possum Point. EPA believes that the Commonwealth provided sufficient assurances as part of the February 1, 2019 SIP revision to support its source-specific RACT determination for Possum Point.

EPA's evaluation of Virginia's February 1, 2019 SIP revision and the rationale for taking rulemaking action on this submission was discussed in detail in the NPRM and accompanying TSD. EPA's decision to approve the RACT determination for Possum Point based on that information is not changed by these unsupported comments.

EPA finds that Virginia's SIP revisions submitted on February 1, 14, and 15, 2019 addressing source-specific RACT for Possum Point Power Station, Covanta Fairfax, and Covanta Alexandria/Arlington, are adequate to meet RACT requirements set forth under the CAA for the 2008 ozone NAAQS. EPA is approving the February 1, 14, and 15, 2019 submittals as revisions to the Commonwealth of Virginia SIP to satisfy sections 172(c)(1), 182(b)(2)(C), 182(f), and 184(b)(1)(B) for implementation of the 2008 ozone NAAQS.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of three federally enforceable permits, each addressing NOX and/or VOC RACT under the 2008 ozone NAAQS for a major NOX and/or VOC source as discussed in section II of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.2

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

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 7, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action addressing source-specific RACT under the 2008 ozone NAAQS for three facilities in Northern Virginia, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

This final rulemaking addresses the request EPA received on March 8, 2017, from the Wisconsin Department of Natural Resources (WDNR) for approval of revisions and updates to Wisconsin's title V operating permit program. Pursuant to subchapter V of the Act, generally known as title V, and the implementing regulations, at 40 Code of Federal Regulations (CFR) part 70, states developed and submitted to EPA for approval, programs for issuing operation permits to all major stationary sources. EPA promulgated interim approval of Wisconsin's title V operating permit program on March 6, 1995 (60 FR 12128). In 2001, WDNR submitted corrections to the interim approval issues identified in the 1995 interim approval action as well as additional program revisions and updates. EPA took action to approve the corrections to the interim approval issues and promulgated final approval of the Wisconsin title V program on December 4, 2001 (66 FR 62951).

Wisconsin is seeking approval of changes and updates made to its title V program since the 1995 and 2001 approvals. EPA received WDNR's submittal updating its title V operating permit program on March 8, 2017, and supplemental information on January 26, 2018 (submittal). WDNR's submittal contains two sections, Part 1 and Part 2.

Part 1 contains previously approved program elements which are included for informational purposes, as well as minor clarifications and corrections, which were included in WDNR's 2001 submittal, but which EPA did not act on or approve in the 2001 approval.

Part 2 contains title V program revisions and updates since Wisconsin's program was approved in 2001. Part 2 of the submittal contains section I—Additional State Rule Changes and Updates to the Regulations, and section II—Permit Fee Demonstration.

EPA is addressing the changes and updates in WDNR's submittal that have not been previously approved by EPA. This includes the changes in Part 1, Section IX (Other Changes—Minor Clarifications and Corrections), as well as the changes in Part 2, both sections I and II, of WDNR's submittal that relate to the Federal title V program at 40 CFR part 70. EPA finds that the program revisions and updates in WDNR's submittal have satisfactorily addressed the requirements of part 70, and EPA is therefore approving this submittal.

EPA published a direct final rule approving Wisconsin's submittal on July 31, 2019 (84 FR 37104) along with a proposed rule that was also published on July 31, 2019 (84 FR 37194). In this proposed rule we stated that if we receive adverse comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the direct final action. In the proposal, we also stated that all public comments received will then be addressed in a subsequent final rule and that EPA will not institute a second comment period.

EPA received a comment from one commenter during the public comment process. The comment from the anonymous commenter was received on August 30, 2019. Consequently, the direct final rule for this approval was withdrawn and this withdrawal of the direct final rule was published on September 25, 2019 (84 FR 50307). The comment received and EPA's response follows:

Comment 1: “Did EPA even do a financial analysis of Wisconsin's Permit Fee Demonstration? Fixed fee programs are gradually becoming insolvent across the country as emissions decrease over time. Slowly states are beginning to understand that billable hours model permit programs are the only way to sustain adequate permit reviews and writing permits for these sources with extensive requirements. EPA must perform a financial analysis of the Department's fee demonstration and audit the department's finances to determine what level of fees is adequate to sustain the permit review and issuance process.”

EPA Response: WDNR submitted a fee demonstration as part of its submittal because 40 CFR 70.9(c) requires a demonstration. 40 CFR 70.9(a) provides that a state program must require that the owners or operators of part 70 sources pay annual fees, or the equivalent over some other period, that are sufficient to cover the permit program costs. 40 CFR 70.9(b) provides that a state shall collect fees that cover the actual permit program costs and 40 CFR 70.9(b)(2) establishes a presumptive fee level such that a state fee schedule that collects at or above that presumptive level will be presumed valid.

Permitting authorities have the option of submitting a fee demonstration based on the presumptive fee test or submitting a detailed fee demonstration if they collect less than the presumptive fee. EPA considers the total program revenue to be presumptively adequate if fees are collected at or above the presumptive minimum level, and if presumptively adequate, EPA does not require a detailed fee analysis. Because Wisconsin has shown that the actual revenues collected under its fee structure exceed what would be collected using the presumptive minimum fee schedule, WDNR has demonstrated that the level of fees collected is sufficient.

WDNR describes in its submittal the rule changes related to fees that have occurred since 2001, including changes that revised the operation permit fee structure. WDNR's current title V fee structure requires sources that must obtain a Federal operation permit to pay an annual air emissions tonnage fee, but sources also pay an additional annual flat fee, based on the tons of actual billable emissions. In addition, sources also pay an additional annual flat fee if the source is subject to other requirements, such as if maximum achievable control technology standards apply to the source, if one or more Federal New Source Performance Standards apply to the source, if Federal Prevention of Significant Deterioration permitting requirements apply to the source, or if the source is a privately-owned coal-fired electric utility with an electric generating unit, among other flat fees.

The submittal provides tables showing the fee rate per ton of billable pollutants, the billable tons, and the total fees assessed for various years. The submittal also provides details on WDNR's revenue, work planning, and expenditures. In addition, WDNR has several mechanisms in place to ensure that fees collected from title V sources are used solely for funding title V permit activities as required by 40 CFR 70.9(a). See also 40 CFR 70.9(d). In the submittal, WDNR compares the actual revenues collected under its fee structure to an estimate of what would be collected using the presumptive minimum fee schedule, and WDNR's actual revenues collected exceed the presumptive minimum projections. WDNR's submittal demonstrates that the level of fees it collects from federally-regulated sources is sufficient for the WDNR to adequately administer and enforce the required minimum elements of the title V permit program required in Section 502(b) of the Act.

EPA evaluated the fee information in WDNR's submittal and has found that WDNR has demonstrated that it has adequate funding levels to support its title V program. Accordingly, Wisconsin has adequately demonstrated that the revised fee schedule has resulted in the collection of fees in an amount sufficient to cover its actual program costs, as required by 40 CFR 70.9 and the Act.

Note that this is not the first time that EPA has conducted an analysis of WDNR's title V fees. On March 4, 2004, EPA published a Notice of Deficiency (NOD) for the title V Operating Permit Program in Wisconsin. See 69 FR 10167. The NOD was based upon EPA's findings that the State's title V program did not comply with the requirements of the Act or with the implementing regulations at 40 CFR part 70 in part because (1) Wisconsin had failed to demonstrate that its title V program required owners or operators of part 70 sources to pay fees sufficient to cover the costs of the State's title V program in contravention of the requirements of 40 CFR part 70 and the Act; and (2) Wisconsin was not adequately ensuring that its title V program funds were used solely for title V permit program costs and, thus, was not conducting its title V program in accordance with the requirements of 40 CFR 70.9 and the Act.

On August 18, 2005, WDNR submitted to EPA its response to the March 4, 2004 NOD ” (NOD Response). The NOD Response is available to view in the docket, Docket ID No. WI-118-2. In the NOD Response, and its accompanying attachments, WDNR explained and documented how each of the deficiencies identified in the NOD had been, or were being, addressed. The NOD Response contains documented internal operational changes within WDNR, a copy of the fee structure included in Wisconsin's 2005-07 biennial budget bill enacted into law as 2005 Wisconsin Act 25 (published July 26, 2005), and numerous attachments describing WDNR's permit program, program costs, fee structure, and workload.

In an action dated February 27, 2006, EPA determined that Wisconsin had demonstrated that it has resolved each of the issues listed in the March 4, 2004, NOD. See 71 FR 9720 for the analysis of WDNR's submittal and EPA's approval.

EPA is approving the requested revisions and updates to WDNR's title V operation permit program.

Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

This action is an Executive Order 13771 (82 FR 9339, January 30, 2017) regulatory action because this action is not significant under Executive Order 12866.

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

This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this state operating permit program will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

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

This 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 action merely approves a state operating permit program, and does not alter the relationship or the distribution of power and responsibilities established in the Act.

In addition, the state operating permit program is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the state operating permit program 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).

This action 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 it proposes to approve a state operating permit program.

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this 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).

In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the Act. 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.

Executive Order 12898 (59 FR 7629 (Feb. 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.

EPA lacks the discretionary authority to address environmental justice in this action. In reviewing state operating permit program submissions, EPA's role is to approve or disapprove state choices, based on the criteria of the Act. Accordingly, this action merely approves certain state requirements and will not in-and-of itself create any new requirements. Accordingly, it does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898.

40 CFR part 70 is amended as follows:

I. General Information A. Does this action apply to me?

This final rule will affect persons who generate, transport, treat, recycle, or dispose of hazardous waste aerosol cans, herein referred to as aerosol cans, unless those persons are households or very small quantity generators (VSQGs). Entities potentially affected by this action include over 25,000 industrial facilities in 20 different industries (at the 2-digit North American Industry Classification System (NAICS) code level). An estimated 7,483 of these facilities are large quantity generators (LQG). Most of these industries have relatively few entities that are potentially affected. The two top economic sectors (at the 2-digit NAICS code level) with the largest percentage of potentially affected entities are the retail trade industry (NAICS code 44-45), representing 69% of the affected LQG universe, and manufacturing (NAICS code 31-33), representing 17% of the affected LQG universe. Potentially affected categories and entities include, but are not necessarily limited to:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. Other entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in section V of this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Environmental Protection Agency (EPA) is adding hazardous waste aerosol cans to the list of universal wastes regulated under the RCRA regulations. This revision will benefit the wide variety of establishments generating and managing aerosol cans, including the retail sector, by providing a clear, practical system for handling discarded aerosol cans.

These regulations are promulgated under the authority of sections 2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments (HSWA), 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.

This final action is estimated to result in an annual cost savings of $5.3 million to $47.8 million. Information on the estimated economic impacts of this action is presented in section VIII of this document, as well as in the Regulatory Impact Analysis (RIA) available in the docket for this final action. In addition to cost savings, EPA's analysis shows qualitative benefits to adding aerosol cans to the universal waste program, including improved implementation of and compliance with the hazardous waste program and increased recovery and recycling of aerosol cans.

On March 16, 2018, EPA published the proposal to add aerosol cans to the Federal universal waste program (83 FR 11654). EPA's proposal recognized that inclusion of this common waste stream as universal waste could better ensure that aerosol cans are managed appropriately at the end of their lives, remove these wastes from the municipal waste stream, potentially encourage recycling, and reduce unnecessary burden for generators.

In its proposal, EPA analyzed the factors for inclusion of a waste stream in the universal waste program and took public comment on its conclusions. In addition, EPA defined what materials would qualify as aerosol cans for the purposes of management as universal waste. EPA proposed management standards for handlers of these materials and took public comment on the proposed standards.

In addition to the universal waste management standards that apply to all universal waste handlers, such as labeling and marking, accumulation time limits, employee training, responses to releases, export requirements, and, for large quantity handlers of universal waste, notification and tracking, EPA proposed specific standards that relate to the puncturing and draining of aerosol cans.

EPA proposed that puncturing and draining of aerosol cans be conducted by a commercial device specifically designed to safely puncture aerosol cans and effectively contain the residual contents as well as any emissions from the puncturing and draining activities. In addition, EPA proposed that handlers establish written procedures for safely puncturing and draining universal waste aerosol cans and ensure that employees operating the device be trained in the proper procedures. EPA proposed that puncturing of aerosol cans be done in a manner designed to prevent fires and releases and that any residuals from puncturing cans be transferred to a tank or container, at which point the handler must make a hazardous waste determination on the residuals, as required in 40 CFR 262.11. The proposal also included that written procedures be in place in the event of a spill or release, that a spill clean-up kit be provided, and that any spills or leaks be cleaned up promptly.

In addition to these proposed standards, EPA analyzed the existing state universal waste programs that include aerosol cans and requested comment on including further limitations on puncturing and draining of cans that might contain materials that pose an incompatibility hazard with other materials or establishing further limits on which types of handlers are allowed to puncture and drain aerosol cans within the universal waste program.

EPA has analyzed all the comments received in response to its proposed rule and responds to those comments in this final rule or in the Response to Comment document available in the docket for this rulemaking.

Aerosol cans are widely used for dispensing a broad range of products including paints, solvents, pesticides, food and personal care products, and many others. The Household and Commercial Products Association estimates that 3.75 billion aerosol cans were filled in the United States in 2016 for use by commercial and industrial facilities as well as by households.1

A typical aerosol can consists of several components, including (but not limited to) the following: (1) The can or container storing both propellant and the product; (2) an actuator or button at the top of the can that is pressed to deliver the product; (3) a valve, which controls delivery or flow of the product; (4) the propellant (a compressed gas or liquefied gas), which provides the pressure in the container to expel or release the product when the actuator is pressed to open the valve; (5) the product itself; and (6) a dip tube, which is connected to the valve to bring the product up through the can to be released when the actuator is pressed.2

The can itself is typically a small steel or aluminum container, designed to be hand-held, which is sealed with its contents under pressure. The can's design is intended to prevent unwanted releases of the contents to the environment under normal handling and storage conditions. However, when aerosol cans are mismanaged, particularly when exposed to excessive heat, the resulting increase in internal pressure can reach a point beyond the design strength of the can, thereby causing it to burst and release its contents. At the point of bursting, the contents of the can have been heated to a temperature and pressure far above ambient environmental conditions, causing the contents to rapidly vaporize and be forcefully released. If the propellant or product is ignitable, the contents of the can may readily catch fire as they are released and exposed to atmospheric oxygen, creating a rapidly burning vapor “fireball.” In addition, the bottom of the can may detach as a result of a manufacturing defect or an external force, potentially causing the upper part of the can to become a projectile.

Aerosol cans frequently contain flammable propellants such as propane or butane which can cause the aerosol can to demonstrate the hazardous characteristic for ignitability (40 CFR 261.21).3 In addition, the aerosol can may also be a hazardous waste for other reasons when discarded. More specifically, an aerosol can may contain materials that exhibit hazardous characteristics per 40 CFR part 261, subpart C. Similarly, a discarded aerosol can may also be a P- or U-listed hazardous waste if it contains a commercial chemical product found at 40 CFR 261.33(e) or (f).

Any person who generates a solid waste, as defined in 40 CFR 261.2, must determine whether the solid waste qualifies as hazardous waste. The waste may be hazardous either because it is listed as a hazardous waste in subpart D of 40 CFR part 261 or because it exhibits one or more of the characteristics of hazardous waste, as provided in subpart C of 40 CFR part 261. As discussed above, aerosol cans are frequently hazardous due to the ignitability characteristic and in some cases may also contain listed waste or exhibit other hazardous waste characteristics.4

Until this rulemaking goes into effect, many, but not all, generators of aerosol cans identified or listed as a hazardous waste have been subject to the full RCRA Subtitle C hazardous waste management requirements, including all applicable requirements of 40 CFR parts 260 through 268. Depending on their activities, some generators have only to meet the requirements of part 262, including on-site management, pre-transport, and manifesting. Under 40 CFR 262.14, VSQGs, defined as facilities that generate less than or equal to 100 kilograms of hazardous waste in a calendar month, are not subject to the RCRA Subtitle C hazardous waste management standards, provided they send their waste to a municipal solid waste landfill or non-municipal nonhazardous waste facility approved by the state for the management of VSQG wastes and meet other conditions. In addition, households that generate waste aerosol cans are exempt from the Federal hazardous waste management requirements under the household hazardous waste exemption in 40 CFR 261.4(b)(1).5

Facilities that treat, store, and/or dispose of hazardous waste aerosol cans are subject to the requirements of 40 CFR part 264 (for permitted facilities) or the requirements of 40 CFR part 265 (for interim status facilities). However, when hazardous waste aerosol cans are recycled, the recycling process itself is not subject to regulation, except as indicated in 40 CFR 261.6(d). EPA has interpreted the current hazardous waste regulations to mean that puncturing and draining an aerosol can, if performed for the purpose of recycling (e.g., for scrap metal recycling), is considered part of the recycling process and is exempt from RCRA permitting requirements under 40 CFR 261.6(c).6 However, until this rulemaking goes into effect, facilities receiving hazardous waste aerosol cans from off site would require a RCRA permit for storage prior to the recycling activity and the recycling process would be subject to subparts AA and BB of 40 CFR part 264 or 265, or subject to part 267.

Hazardous waste aerosol cans that contain pesticides are also subject to the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), including compliance with the instructions on the label. In general, the statement on aerosol pesticide product FIFRA labels prohibits the puncturing of the cans. However, in April 2004, EPA issued a determination that puncturing aerosol pesticide containers in the process of recycling aerosol cans is consistent with the purposes of FIFRA. The purpose of the label prohibiting puncturing of pesticide-containing aerosol cans is to protect the ordinary users of pesticides from the hazards of pressurized containers. The hazards associated with recycling aerosol pesticide containers are adequately, and more appropriately, addressed under Federal, state and local laws concerning solid and hazardous wastes and occupational safety and health. Such puncturing is therefore lawful pursuant to FIFRA section 2(ee)(6) provided that the following conditions are met:

• The puncturing of the container is performed by a person who, as a general part of his or her profession, performs recycling and/or disposal activities;

• The puncturing is conducted using a device specifically designed to safely puncture aerosol cans and effectively contain the residual contents and any emissions thereof; and

• The puncturing, waste collection, and disposal, are conducted in compliance with all applicable Federal, state, and local waste (solid and hazardous waste) and occupational safety and health laws and regulations.7

The retail sector as a whole handles a very large number of diverse products, which change over time and may, in many instances, become regulated as hazardous waste under RCRA when discarded. As a result, retailers are required to make hazardous waste determinations for a variety of products being discarded at stores located across the country.

In 2014, EPA published a Notice of Data Availability (NODA) for the Retail Sector as part of the Agency's continuing efforts to better understand concerns from all stakeholders regarding RCRA's applicability to the retail sector, as well as to obtain information and feedback on issues affecting the retail sector (79 FR 8926, February 14, 2014). In the NODA, EPA requested comment on a series of topics related to retail operations, waste management practices, and management of materials that may become hazardous waste when discarded. This specifically included requests for information regarding aerosol cans (e.g., quantity generated, classification, and management options, including handling them as universal waste), since aerosol cans comprise a large percentage of the retail sector's hazardous waste stream. Approximately 35% of NODA commenters specifically suggested that discarded aerosol cans be managed as universal waste.

In response to comments on the Retail Sector NODA, the Agency published the Strategy for Addressing the Retail Sector under RCRA's Regulatory Framework, which lays out a cohesive plan to address the unique challenges faced by the retail sector in complying with RCRA regulations while reducing burden and protecting human health and the environment.8 One of the action items under the Retail Strategy is to explore adding hazardous waste aerosol cans to the Universal Waste Rule. This final rule, which adds aerosol cans to the Federal universal waste program, completes EPA's commitment in the Retail Strategy to explore this option. Further, with this action, EPA has completed all commitments made in the Retail Strategy.

In 1995, EPA promulgated the Universal Waste Rule (60 FR 25492, May 11, 1995) to establish a streamlined hazardous waste management system for widely generated hazardous wastes as a way to encourage environmentally sound collection and proper management of the wastes within the system. Hazardous waste batteries, certain hazardous waste pesticides, mercury-containing equipment, and hazardous waste lamps are already included on the Federal list of universal wastes. The universal waste regulations in 40 CFR part 273 are a set of alternative hazardous waste management standards that operate in lieu of regulation under 40 CFR parts 260 through 272 for specified hazardous wastes.

Handlers and transporters who generate or manage items designated as a universal waste are subject to the management standards under 40 CFR part 273, rather than the full RCRA Subtitle C regulations. Handlers include both facilities that generate universal waste and facilities that receive universal waste from other universal waste handlers, accumulate the universal waste, and then send the universal waste to another handler, a destination facility, or a foreign destination. Handlers do not include facilities that treat, dispose of, or recycle universal waste except as provided in the universal waste regulations. The regulations distinguish between “large quantity handlers of universal waste” (those who handle more than 5,000 kilograms of total universal waste at one time) and “small quantity handlers of universal waste” (those who handle 5,000 kilograms or less of universal waste at one time). The 5,000-kilogram accumulation limit applies to the quantity of all universal wastes accumulated. The streamlined standards include requirements for storage, labeling and marking, preparing the waste for shipment off site, employee training, response to releases, and, in the case of large quantity handlers, notification and tracking of universal waste shipments. Transporters of universal waste are also subject to less stringent requirements than the full Subtitle C hazardous waste transportation regulations.

Under the Universal Waste Rule, destination facilities are those facilities that treat, store, dispose, or recycle universal wastes. Universal waste destination facilities are subject to all currently applicable requirements for hazardous waste treatment, storage, and disposal facilities (TSDFs) and must receive a RCRA permit for such activities. Destination facilities that recycle universal waste and that do not store that universal waste prior to recycling in accordance with 40 CFR 261.6(c)(2) may be exempt from permitting under the Federal regulations (see 40 CFR 273.60(b)). Finally, states implementing the universal waste program are authorized to add wastes that are not Federal universal wastes to their lists of universal wastes. Therefore, in some states, aerosol cans are already regulated as a universal waste.

Five states—California, Colorado, New Mexico, Ohio, and Utah—already have universal waste aerosol can programs in place, and Minnesota plans to propose to add aerosol cans to their universal waste regulations in 2019.9 The universal waste programs in all these states include streamlined management standards similar to 40 CFR part 273 for small and large quantity handlers of universal waste and a one-year accumulation time limit for the aerosol cans. In addition, the five current state universal waste programs set standards for puncturing and draining of aerosol cans by universal waste handlers.

The aerosol can universal waste programs in California, Colorado, New Mexico, Ohio, and Utah allow for puncturing and draining of aerosol cans by universal waste handlers, as long as specific management standards and waste characterization requirements are met. In addition, California does not allow off-site commercial processors 10 to puncture and drain aerosol cans without a permit and requires those handlers that do puncture and drain cans to submit a notification. Guidance in effect in Minnesota at the time of publication of this final rule also allows handlers to puncture and drain their aerosol cans.

EPA is adding aerosol cans to the list of universal wastes because this waste meets the factors found at 40 CFR 273.81 that describe hazardous waste appropriate for management under the streamlined universal waste system. Adding aerosol cans to the Universal Waste Rule simplifies handling and disposal of the wastes for generators, while ensuring that universal waste aerosol cans are sent to the appropriate destination facilities, where they will be managed as a hazardous waste with all applicable Subtitle C requirements to ensure protection of human health and the environment. Management as universal waste under the final requirements is also expected to facilitate environmentally sound recycling of the metal used to make the cans.

The universal waste regulations include eight factors to consider in evaluating whether a waste is appropriate for including in the regulations as a universal waste. These factors, codified at 40 CFR 273.81, are to be used to determine whether regulating a particular hazardous waste under the streamlined standards would improve overall management of the waste, and, therefore, whether the waste is a good candidate to be a universal waste. As the Agency noted in the preamble to the final Universal Waste Rule (60 FR 25513), not every factor must be met for a waste to be appropriately regulated under the universal waste system. However, consideration of the weight of evidence should result in a conclusion that regulating a particular hazardous waste under 40 CFR part 273 will improve waste management.

EPA has examined information on aerosol cans, including information submitted in the public comments on the proposed rule and the public comments on the 2014 Retail NODA using the criteria in 40 CFR 273.81.11 In light of its evaluation of this information, the Agency has determined that on balance, hazardous waste aerosol cans meet the factors in 40 CFR 273.81 warranting inclusion on the Federal list of universal wastes for management under part 273. EPA received numerous comments on the proposed rule agreeing that aerosol cans are appropriate for inclusion in the Universal Waste Rule. EPA believes that adding aerosol cans to the list of universal wastes will make collection and transportation of this waste to an appropriate facility easier, and therefore will help facilitate recycling and reduce the amount of aerosol cans disposed of in municipal landfills. A summary of how the criteria in 40 CFR 273.81 apply to aerosol cans is described below.

As discussed in section III, aerosol cans frequently demonstrate the hazardous characteristic for ignitability (40 CFR 261.21) due to the nature of the propellant used. In addition, the contents (propellant or product) may also exhibit another hazardous characteristic per 40 CFR part 261, subpart C, and may also be a P- or U-listed hazardous waste found at 40 CFR 261.33(e) or (f).

EPA has documented in the RIA for this final rule that large and small quantity generators managing hazardous waste aerosol cans can be found in 20 different industries (at the 2-digit NAICS code level). Thus, aerosol cans are commonly generated by a wide variety of types of establishments, including retail and commercial businesses, office complexes, very small quantity generators, small businesses, government organizations, as well as large industrial facilities.

As documented in the RIA, more than 25,000 large and small quantity generators manage hazardous waste aerosol cans. Quantities generated vary depending on the type of generator and the situations associated with generation. For example, a retail store may determine that large quantities of aerosol cans that can no longer be sold or donated must be discarded as hazardous waste. On the other hand, entities that use aerosol cans in their day-to-day operations may generate small quantities of partially-used hazardous waste aerosol cans on a sporadic basis. Data from the RIA demonstrate that in 2017, LQGs generated an average of 1.6 tons per year each (approximately 3,600 cans).

The baseline universal waste requirements of notification, labeling, training, and response to releases found in 40 CFR part 273, subparts B and C, and the final specific requirements for management of aerosol cans in 40 CFR 273.13 and 40 CFR 273.33, discussed in section V, are designed to ensure close stewardship of the hazardous waste aerosol cans.

Aerosol cans are designed to contain the products they hold during periods of storage and transportation as they move from the manufacturer to the retailer, and ultimately to the final customer. Because of their design, hazardous waste aerosol cans present a relatively low risk compared to other types of hazardous waste that are not contained as-generated under normal management conditions and the risk posed by intact waste aerosol cans during storage and transport is similar to the risk posed by intact product aerosol cans. Retail and other entities that generate waste aerosol cans are accustomed to safely handling aerosol can products. In addition, the ignitability risk posed during accumulation and transport is addressed by standards set by local fire codes, the Office of Safety and Health Administration, and the Department of Transportation (DOT).12 These standards include requirements for outer packaging, can design, and general pressure conditions.

Finally, the Agency has determined that the requirements of the universal waste program are effective in mitigating risks posed by hazardous waste aerosol cans. Specifically, the requirements for handlers to accumulate aerosol cans in a container that is structurally sound and compatible with the contents of the aerosol cans will ensure safe management and transport. In addition, the universal waste program requires proper training for employees when handling universal waste, responding to releases, and shipment in accordance with DOT regulations. These requirements will make the risks posed during accumulation and transport low. Additionally, the final specific requirements for management of aerosol cans that are punctured and drained at the handler, described in section V, address the ignitability risk and are designed to help prevent releases. Thus, the specific aerosol can universal waste management standards address the risks posed by hazardous waste aerosol cans.

Managing hazardous waste aerosol cans under the universal waste program is expected to increase the number of these items collected and to increase the number of aerosol cans being diverted from the non-hazardous waste stream into the hazardous waste stream because it would allow generators, especially those that generate this waste sporadically, to send it to a central consolidation point. Under the Universal Waste Rule, a handler of universal waste can send the universal waste to another handler, where it can be consolidated into a larger shipment for transport to a destination facility. Therefore, under the final rule it will be more economical to send hazardous waste aerosol cans for recycling for recovery of metal values. The final rule will advance the RCRA goal of increased resource conservation and increase proper disposal of hazardous waste, making it less likely that aerosol cans will be sent for improper disposal in municipal landfills or municipal incinerators. In addition, because the streamlined structure of the universal waste regulations makes aerosol can collection programs more economical, hazardous waste aerosol cans that might otherwise be sent to a municipal landfill under a VSQG or household hazardous waste exemption will be more easily collected and consolidated for hazardous waste disposal. This waste will be diverted from the municipal solid waste stream to universal waste management.

The structure and requirements of the Universal Waste Rule are well suited to the circumstances of handlers of hazardous waste aerosol cans and their inclusion in the universal waste program will improve compliance with the hazardous waste regulations. In particular, handlers of hazardous waste aerosol cans who are infrequent generators of hazardous waste and who might otherwise be unfamiliar with the more complex Subtitle C management structure, but who generate hazardous waste aerosol cans, will be able to more easily send this waste for proper management. Therefore, adding aerosol cans to the list of universal wastes would offer a protective hazardous waste management system that is likely to be more accessible, particularly for the retail sector, which can face unique compliance challenges as compared to manufacturing and other “traditional” RCRA-regulated sectors.13

The factors included in 40 CFR 273.81 are designed to determine whether regulating a particular hazardous waste under the streamlined standards for universal waste would improve the overall management of the waste; 40 CFR 273.81(h) includes other factors as may be appropriate. Under 40 CFR 273.81(h), EPA considered states' experience of already managing aerosol cans under state universal waste programs. As discussed in section III, five states have added aerosol cans to their universal waste programs, and those states' experiences with management of aerosol cans under their respective universal waste programs provides a useful source of information to inform EPA's judgment on whether to add aerosol cans to the national universal waste program.

Information supplied to EPA from officials in those five states indicates that their programs improve the implementation of the hazardous waste program. Specifically, waste management officials from the four states whose programs were operating at the time of the proposed rule have represented to EPA that these programs have been operating well and achieving their objective of facilitating safe management of hazardous waste aerosol cans.14 In particular, State officials from both California and Colorado stated to EPA that their respective aerosol can universal waste programs have been in effect since 2002 and they have not identified any problems with enforcing compliance with the standards. Accordingly, this information weighs in favor of concluding that management of aerosol cans under the Federal universal waste regulations is likely to be successful.

EPA expects that under this final rule, the number of aerosol cans that are diverted from municipal solid waste landfills and incinerators to recycling or disposal in Subtitle C facilities will increase. Small and large quantity generators are already required to manage their hazardous waste aerosol cans under RCRA Subtitle C. Following implementation of this rule, some of these generators will likely begin managing their aerosol cans as a universal waste, either to save money or to improve implementation of their existing waste management program. One of the streamlined provisions of the Universal Waste Rule allows consolidation of aerosol cans at central locations, which makes it easier for smaller generators to arrange for hazardous waste recycling or disposal of these materials when they are generated. Because the streamlined structure of the universal waste standards makes aerosol can collection programs more economical, hazardous waste aerosol cans that might otherwise be sent to a municipal landfill under a VSQG or household hazardous waste exemption would be more easily collected and consolidated for hazardous waste disposal by those who are interested in managing it this way. EPA intends to encourage individual households and VSQGs to participate in such programs.

In summary, EPA believes that management of hazardous waste aerosol cans will best be implemented through a universal waste approach where handlers are operating within a simple, streamlined management system. The universal waste program addresses the environmental concerns surrounding the management of such wastes, while at the same time putting into place a structure that will allow for and encourage increased collection of aerosol cans for recycling.

EPA proposed that an “aerosol can” be defined as an “intact container in which gas under pressure is used to aerate and dispense any material through a valve in the form of a spray or foam.” This definition is the same as the definition of aerosol can in the California, Colorado, New Mexico and Utah universal waste programs, with the exception of a twenty-four ounce size limit in Utah's definition of aerosol can. EPA proposed to adopt this definition of aerosol can to be consistent with the existing state programs.

This proposed definition was intended be limited to sealed containers whose intended use is to dispense a material by means of a propellant or compressed gas. Aerosol cans are designed to contain those materials until they are intended for release and to present minimal risk during normal storage and transport. Other types of containers, including compressed gas canisters and propane cylinders, present a greater risk than aerosol cans and would not be included. EPA also requested comment on limiting the definition of aerosol cans to those under twenty-four ounces, consistent with Utah's aerosol can universal waste program.

Several commenters recommended that EPA model the definition of aerosol can after language used in the DOT regulations in 49 CFR 171.8 and U.N. Model Regulations. An aerosol is defined in 49 CFR 171.8 as an article consisting of any non-refillable receptacle containing a gas compressed, liquefied, or dissolved under pressure, the sole purpose of which is to expel a liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas. Commenters noted that, in addition to harmonizing the RCRA regulations with DOT requirements, this language would be more inclusive, making it clear that aerosol cans containing products that are not dispensed as a spray or foam, such as aerosol cans that dispense product in the form of paste or powder, may be managed as universal waste. In addition, this definition would address the risk of gas cylinders if managed as universal waste, since those cylinders would not be considered “non-refillable receptacles” with a “self-closing release device” and therefore not eligible to be managed as universal waste under the alternative wording.

Most commenters supported EPA's proposal to exclude compressed gas cylinders from the definition of universal waste aerosol can, noting that such devices pose a higher risk than aerosol cans pose. Two industry commenters requested that compressed gas cylinders be included as universal waste, with one commenter asserting that “as long as facilities have procedures in place to safely depressurize these devices, potential risks can be mitigated.” 15

Finally, most commenters (including industry, most states, and local government) supported EPA's proposal to not set a specific size limit on aerosol cans. One state association and a few individual states did support limiting the size of aerosol cans to twenty-four ounces.

EPA is finalizing a definition of “aerosol can” that is consistent with language in the DOT regulations.16 In the final rule, aerosol can is defined as a non-refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas. Using language from the DOT regulation will help ensure consistency across Federal regulatory programs, avoid unnecessarily narrowing the scope of the rule to aerosol cans that aerate their product, and will not inadvertently include compressed gas cylinders in the definition of aerosol can. Because compressed gas cylinders, unlike aerosol cans, require special procedures to safely depressurize, it would not be appropriate to include them in the final rule. Finally, because the DOT language is more inclusive than the proposed language, it better matches the intent of the proposal to apply to all types of aerosol cans, including cans that dispense product in the form of paste or powder, and would not require states that have already added aerosol cans to their universal waste program to change their regulations.

The proposed rule excluded from the universal waste requirements those cans that are not yet a waste under 40 CFR part 261 and those cans that are not hazardous waste. In addition, at proposed 40 CFR 273.6(b)(1)-(3), the proposal specifically excluded aerosol cans that have been emptied of their contents (both propellant and product). Aerosol cans that fall under these categories would not be subject to hazardous waste requirements or universal waste requirements.

Finally, the proposed rule also proposed to exclude aerosol cans that show evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions. This proposed rule language would mean that hazardous waste aerosol cans that are not intact would continue to be subject to the full hazardous waste standards.

Several commenters requested that EPA allow leaking and damaged aerosol cans to be managed as universal waste. Commenters point out that the rules for other types of universal wastes (lamps, pesticides, batteries, mercury-containing equipment) allow damaged or leaking items to be managed as universal waste as long as they are in an appropriate container (e.g., overpacked with absorbents). Commenters were concerned that determining whether an aerosol can shows “evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions” is a subjective standard that would be confusing to implement. Commenters noted that Colorado allows damaged aerosol cans to be managed as universal waste as long as they are managed in a separate individual container and that Ohio allows damaged aerosol cans to be managed as universal waste as long as they are overpacked with absorbents or immediately punctured to remove the contents of the can.

EPA is finalizing as proposed the language in 40 CFR 273.6(b)(1)-(3). These provisions designate aerosol cans that are not subject to hazardous waste requirements because they are either not solid waste, not hazardous waste, or they met the definition of empty container in 40 CFR 261.7.

However, EPA is not finalizing the proposed language in 40 CFR 273.6(b)(4), which would have barred leaking or damaged aerosol cans from being managed as universal waste, instead leaving such cans subject to 40 CFR part 262 hazardous waste requirements. Rather, EPA is requiring that universal waste aerosol cans that show evidence of leakage must be packaged in a separate closed container or overpacked with absorbents, or immediately punctured and drained in accordance with the aerosol can universal waste requirements. (See 40 CFR 273.13(e)(2) and 40 CFR 273.33(e)(2)).

EPA agrees with those commenters who indicated that such an approach is more consistent with how other universal wastes are regulated and how the states that currently regulate aerosol cans as universal waste operate their programs. In addition, setting specific protective management standards for leaking aerosol cans under the universal waste regulations would ensure the risk from these cans is addressed and that they are ultimately sent to appropriate destination facilities per 40 CFR 273.18 and 40 CFR 273.38 instead of potentially being diverted to municipal waste streams as VSQG waste per the requirements in 40 CFR 262.14. Such an approach is also consistent with DOT requirement that aerosols that are damaged, defective, or leaking to the point where they do not meet applicable design standards be transported in special aerosol salvage drums. See 49 CFR 173.306(k)(2).

Summary of Comments. Several commenters requested that EPA clarify that handlers should be able to continue to manage their punctured and drained aerosol cans as a universal waste and send them to another handler or destination facility. The proposed § 273.6(b)(3) designated aerosol cans that meet the standard for empty containers under § 261.7 of the chapter as being excluded from universal waste requirements, and the proposed definition for aerosol cans included the requirement that they be “intact,” implying that punctured aerosol cans would not meet the definition. Commenters stated that including empty aerosol cans would provide a clear decision process for generators to include all aerosol cans—empty, full, or partially full—for proper handling and disposal as universal waste. However, commenters noted it would not be necessary to require empty aerosol cans to be managed under the universal waste regulations because generators may still want to manage empty aerosol cans as scrap metal for recycling.

EPA Response. EPA agrees that while aerosol cans that meet the standard for empty containers found at 40 CFR 261.7 should not be required to meet the universal waste requirements, they also should not be barred from being managed as universal waste if a handler chooses to do so. Residues in empty containers that meet the requirements of 40 CFR 261.7 are not subject to RCRA hazardous waste requirements. However, a handler is nevertheless allowed under the regulation to manage aerosol cans that meet the empty container standards as universal waste if they would prefer to do so. Likewise, non-hazardous aerosol cans may be managed as universal waste, although they are not required to be managed as such. EPA notes that the final definition of aerosol can is based on the DOT definition and no longer specifies that the cans must be “intact,” thus removing a potential source of confusion.

Summary of Comments. Several commenters suggested that EPA provide additional guidance on how to determine if an aerosol can meets the empty container standard found at 40 CFR 261.7. One commenter suggested that EPA adopt guidance used by the State of Minnesota which recognizes an aerosol can as “empty” when (1) the container contains no compressed ignitable gas propellant or product; (2) all liquid product that can be dispensed through the valve has been; and (3) less than 3% of the product capacity of the container remains. Minnesota's guidance also recognizes that documenting that an aerosol can meets this standard can be impractical and therefore provides that aerosol cans may be assumed empty when both of the following criteria are satisfied: (1) No liquid is felt or heard when the can is shaken by hand; and (2) no gas or liquid is released when the spray/discharge valve is activated and the container is rotated through all directions, and the valve is not observably or known to be clogged.17 Another commenter suggested that EPA add a provision to 40 CFR 261.7 stating that an aerosol can is empty when it has been punctured and drained. The commenter stated that this provision should apply to cans that hold characteristic or listed wastes.18

EPA Response. Under 40 CFR 261.7(b),19 a container that has held non-acute hazardous waste is “empty” if (1) all wastes have been removed that can be removed using the practices commonly employed to remove materials from that type of container, e.g., pouring, pumping, and aspirating (applicable in all cases), and (2) no more than 2.5 centimeters (one inch) of residue remains on the bottom of the container or inner liner, or (3) no more than 3 percent by weight of the total capacity of the container remains in the container or inner liner if the container is less than or equal to 119 gallons in size. In addition, a container that has held a hazardous waste that is a compressed gas is empty when the pressure in the container approaches atmospheric pressure.

In the case of a container that has held an acute hazardous waste listed in 40 CFR 261.31 or 261.33(e), the container is considered empty when it has been triple rinsed or has been cleaned by another method that has been shown in scientific literature, or by tests conducted by the generator to achieve equivalent removal, per 40 CFR 261.7(b)(3). EPA also considers a container that has held an acute hazardous that is a compressed gas to meet the definition of empty when it approaches atmospheric pressure, as defined in 40 CFR 261.7(b)(2).20 EPA is not aware of a chemical commonly found in aerosol cans that would be listed as an acute hazardous waste, but if such an aerosol can product does exist, it would have to meet the 40 CFR 261.7(b)(2) or (3) standard to be considered “empty” under the regulations. The commenter request for a revision to 40 CFR 261.7 that would allow aerosol cans that have held acutely hazardous waste to be disposed of without meeting the current standard in 40 CFR 261.7(b)(3) when punctured and drained is being beyond the scope of this rulemaking.

However, in the case of aerosol cans being recycled, rather than disposed of, aerosol cans that have been punctured and drained prior to recycling are considered exempt scrap metal under 40 CFR 261.6(a)(3)(ii), and therefore all such punctured cans would be exempt from hazardous waste requirements when recycled.

Summary of Comments. One commenter noted that EPA said in the proposed rule that aerosol containers that meet the definition of empty in 40 CFR 261.7 are not subject to hazardous waste regulation and may be recycled as scrap metal. They found this statement misleading because it implies that the aerosol can must be RCRA empty, per 40 CFR 261.7, to be classified as exempt scrap metal. The commenter stated that an aerosol container does not need to be completely empty or triple rinsed (if it held a P-listed waste) to be classified and recycled as scrap metal. However, it is a good management practice to remove as much of the waste from the aerosol can as possible.

EPA Response. Under 40 CFR 261.1, “scrap metal” is defined as bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous can be recycled. Under 40 CFR 261.6(a)(3)(ii), exempt scrap metal is not subject to regulation under parts 262 through 268, part 270, or part 124, and is not subject to the notification requirements of section 3010 of RCRA.

However, an aerosol can that still contains hazardous liquid and/or hazardous compressed gas would not meet the definition of scrap metal and would not be eligible for the scrap metal exemption. As EPA has clearly stated, materials containing significant amounts of liquid cannot be eligible to be exempt scrap metal.21 Thus while EPA agrees that aerosol cans do not need to be triple rinsed prior to being recycled as scrap metal, they do need to have their contents removed to be considered scrap metal.

Summary of Comments. One commenter noted that 40 CFR 273.13(e)(3)(v) and 273.33(e)(3)(v) of the proposed rule require that the universal waste handler “Conduct a hazardous waste determination on the emptied aerosol can and its contents per 40 CFR 262.11.” While the commenter agreed on the need for a hazardous waste determination to be made on the contents, they stated that requiring it for the emptied cans contradicts prior EPA guidance regarding scrap metal. The proposed rule only allows for puncturing of cans on the condition that the empty punctured aerosol cans be recycled. EPA has previously stated that a formal hazardous waste determination is not required for scrap metal being recycled under 40 CFR 261.6(a)(3)(ii).22

This is a summary of the Commission's Order on Reconsideration in WC Docket No. 10-90; FCC 19-104, adopted on October 25, 2019 and released on October 31, 2019. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554 or at the following internet address: https://docs.fcc.gov/public/attachments/FCC-19-104A1.pdf

1. The Commission has long recognized that “[a]ll Americans [should] have access to broadband that is capable of enabling the kinds of key applications that drive the Commission's efforts to achieve universal broadband, including education (e.g., distance/online learning), health care (e.g., remote health monitoring), and person-to-person communications (e.g., Voice over internet Protocol (VoIP) or online video chat with loved ones serving overseas).” To that end, the Commission has invested significant Universal Service Fund support for the deployment of broadband-capable networks in high cost, rural areas.

2. But only fast and responsive networks will allow Americans to fully realize the benefits of connectivity. That is why the Commission requires recipients of universal service support in high cost areas to deploy broadband networks capable of meeting minimum service standards. These standards protect taxpayers' investment and ensure that carriers receiving this support deploy networks that meet the performance standards they promised to deliver to rural consumers. At the same time, the Commission recognizes that each carrier faces unique circumstances, and that one set of prescriptive rules may not make sense for every one of them. To accommodate this practical reality, the Commission's rules provide flexibility, taking into account the operational, technical, and size differences among providers when establishing minimum standards, to ensure that even the smallest rural carriers can meet testing requirements without facing excessive burdens.

3. In the Order on Reconsideration, the Commission reviews performance measures established by the Bureaus for recipients of CAF high-cost universal service support to ensure that those standards strike the right balance between ensuring effective use of universal service funds while granting the flexibility providers need given the practicalities of network deployment in varied circumstances. Several petitions for reconsideration and applications for review of the Performance Measures Order, 83 FR 42052, August 20, 2018, propose changes to these performance measures. Here, the Commission rejects the proposed changes where it finds that the Bureaus' approach strikes the right balance. Where the Commission finds that the Bureaus' approach does not—for example, where it concludes that greater flexibility is warranted than was offered under the Bureaus' original methodology—the Commission adjusts its rules accordingly. Finally, the Commission clarifies the Bureaus' approach where doing so will help resolve stakeholder confusion.

4. In the Order on Reconsideration, the Commission reexamines each of the described performance measure requirements in this document. As a result, the Commission adopts several modifications. The Commission believes these changes will alleviate concerns expressed by carriers by increasing the time for carriers to meet certain deadlines and further minimizing the costs associated with compliance, yet still ensure that carriers meet their performance obligations. In short, the refinements to the Bureau's approach adopted in the Performance Measures Order will further the overarching goal of the Performance Measures Order; namely, to ensure that carriers deliver broadband services with the speed and latency required while providing flexibility to enable carriers of all sizes to choose how to conduct the required performance testing in the manner most appropriate for each individual carrier.

5. Under the Performance Measures Order, all high-cost support recipients serving fixed locations must perform speed and latency tests from the customer premises of an active subscriber to a remote test server located at or reached by passing through an FCC-designated internet Exchange Point (IXP). In the USF/ICC Transformation Order, 76 FR 73830, November 29, 2011, the Commission decided that speed and latency should be measured on each eligible telecommunications carriers (ETCs) access network from the end-user interface to the nearest internet access point, i.e., the internet gateway, which is the closest peering point between the broadband provider and the public internet for a given consumer connection. Subsequently, in the CAF Phase II Price Cap Service Obligation Order, 78 FR 70881, November 27, 2013, WCB stated that latency should be tested to an IXP, defined as occurring in any of ten different U.S. locations, almost all of which are locations used in the MBA program because they are geographically distributed major peering locations. The Bureaus expanded the list to permit testing to six additional metropolitan areas to ensure that most mainland U.S. locations are within 300 miles of an FCC-designated IXP and that all are within approximately 500 air miles of one. Further, the Bureaus permitted providers to use any FCC-designated IXP for testing purposes, rather than limiting testing to the provider's nearest IXP. Providers serving non-contiguous areas greater than 500 air miles from an FCC-designated IXP were also permitted to conduct testing between the customer premises and the point at which traffic is aggregated for transport to the continental U.S.

6. The Commission agrees with the Bureaus that the speed and latency of networks of carriers receiving support through the various high-cost support mechanisms should be tested between the customer premise of an active subscriber and an FCC-designated IXP. This approach is consistent with the Commission's determination in the USF/ICC Transformation Order that “actual speed and latency [must] be measured on each ETCs access network from the end-user interface to the nearest internet access point.” Measuring the performance of a consumer's connection to an IXP better reflects the performance that a carrier's customers experience. As the Commission observed when it first adopted performance measures for CAF Phase II model-based support recipients, “[t]esting . . . on only a portion of the network connecting a consumer to the internet core will not show whether that customer is able to enjoy high-quality real-time applications because it is network performance from the customer's location to the destination that determines the quality of the service from the customer's perspective.”

7. The Commission therefore disagrees with those commenters arguing that it should require testing over a shorter span. For example, NTCA seeks modification of the testing requirements to account for performance only on “portions of the network owned by the USF recipient and the next-tier ISP from which that USF recipient procures capacity directly.” NTCA argues that requiring testing to an FCC-designated IXP imposes liability on a carrier for conditions beyond its control and violates the Act by applying obligations to parts of the network that are not supported by USF funding. Alternatively, NTCA requests that the Commission provide a “safe harbor” to protect a carrier from off-network issues that affect its test measurements. WTA similarly contends that testing to an FCC-designated IXP makes carriers responsible for portions of the connection over which they have no control. WTA instead proposes a two-tiered framework consisting of a network-only test for purposes of high-cost compliance and customer-to-IXP testing to respond to customer complaints, with unresolved network-only problems being subject to non-compliance support reductions. Finally, Vantage Point seeks clarity on the initiation point for performance testing within the customer premises, and contends that the endpoint for testing should be at or reached by passing through a carrier's next tier ISP.

8. The Commission disagrees with petitioners that testing to an FCC-designated IXP, rather than the edge of a carrier's network, makes a carrier responsible for network elements it does not control, and the Commission rejects testing only on a carrier's own network as inadequate. As the Bureaus explained, carriers—even smaller ones—do have some influence and control over the type and quality of internet transport they purchase. The Commission expects a carrier to purchase transport of a sufficient quality that enables it to provide the requisite level of service expected by consumers and required by the Commission's rules. However, in the event a carrier fails to meet its performance obligations because the only transport available would demonstrably degrade the measured performance of the carrier's network, the carrier can seek a waiver of the performance measures requirements. The Commission is similarly unpersuaded by WTA's two-tiered testing proposal. Adopting WTA's proposal to conduct its required tests over only half of the full testing span would only provide the Commission with insight into the customer experience on half of the network between the customer and the IXP. Given that the Commission's aim is to ensure that customers are able to enjoy high-quality real-time applications, it declines to adopt WTA's proposed approach.

9. Finally, the Commission provides additional clarity on both the initiation point and endpoint for testing. As the Commission has noted in this document, one of the chief purposes for implementing performance requirements is to ensure that customers are receiving the expected levels of service that carriers have committed to providing. Testing from any place other than the customer side of any carrier network equipment used in providing a customer's connection may skew the testing results and not provide an accurate reflection of the customer's broadband experience. As Vantage Point notes, testing in this manner would make it “difficult to ensure that the test was being performed on the network path actually used by the customer.” Thus, the Commission clarifies that testing should be conducted from the customer side of any network equipment that is being used.

10. Definition of FCC-designated internet Exchange Point. Given the Commission's commitment to testing the performance of connections between consumers and FCC-designated IXPs, it also takes this opportunity to clarify which facilities qualify as FCC-designated IXPs for purposes of performance testing.

11. USTelecom, ITTA, and WISPA request clarification that ETCs are permitted to use “the nearest internet access point,” as specified in the USF/ICC Transformation Order, which may not necessarily be a location specified in the Performance Measures Order. They also seek clarification that ETCs may test to servers that are within the provider's own network (i.e., on-net servers). In subsequent filings, the petitioners suggest that there should be a criteria-based approach to defining the testing endpoint. Specifically, they propose that testing occur “from the end-user interface to the first public internet gateway in the path of the CAF-supported customer that connects through a transitive internet Autonomous System,” (ASN) and “that the Commission establish a safe harbor where the transitive internet AS which the gateway hosts includes one or more router(s) that advertise(s) [ASN] organizations that are listed on the Center for Applied internet Data Analysis (CAIDA) `AS Organization Rank List.' ” The petitioners propose that testing occurring through a “safe harbor” ASN “would be considered valid without further inquiry.”

12. The Commission concludes that the Performance Measures Order's designation of certain metropolitan areas as qualifying IXPs is too ambiguous. It is not clear where the boundaries of a designated IXP metropolitan area begin and end. Thus, drawing on the petitioners' proposal, the Commission now provides a revised definition of FCC-designated IXP that is more specific and better designed to account for the way internet traffic is routed. For testing purposes, the Commission defines an FCC-designated IXP as any building, facility, or location housing a public internet gateway that has an active interface to a qualifying ASN. Such a building, facility, or location could be either within the provider's own network or outside of it. The Commission uses the term “qualifying ASN” to ensure that the ASN can properly be considered a connection to the public internet. The Commission notes that in the USF/ICC Transformation Order, it finds that the internet gateway is the “peering point between the broadband provider and the public internet” and that public internet content is “hosted by multiple service providers, content providers and other entities in a geographically diverse (worldwide) manner.” The criteria the Commission uses to determine FCC-designated IXPs are designed to ensure that the peering point is sufficiently robust such that it can be considered a connection to the public internet and not simply another intervening connection point. The Commission designates 44 major North American ASNs using CAIDA's ranking of Autonomous Systems and other publicly available resources as “safe harbors.” The Commission directs the Bureaus to update this list of ASNs periodically using the CAIDA ranking of ASNs, PeeringDB, and other publicly available resources. Providers may test to a test server located at or reached by passing through any building, facility, or location housing a public internet gateway that has an active interface to one of these qualifying ASNs or may petition the Bureaus to add additional ASNs to the list. The Bureaus will determine whether any ASN included in a carrier petition is sufficiently similar to qualifying ASNs that it should be added to the list of qualifying ASNs.

13. The Bureaus also established a daily testing period for speed and latency tests, requiring carriers to conduct tests between 6:00 p.m. and 12:00 a.m. local time, including weekends. The testing window the Bureaus adopted reflects a slight expansion of the testing window used for the MBA. The Bureaus reasoned that MBA data indicated a peak period of internet usage every evening but noted that they would revisit this requirement periodically “to determine whether peak internet usage times have changed substantially.”

14. Petitioners and commenters urge the Commission to reconsider the daily test period requirement to account for the usage patterns of rural consumers, as well as the conditions and characteristics of rural areas. WTA notes that the MBA data cited by the Bureaus likely reflect the usage patterns of urban consumers, rather than consumers in rural areas that “are typically making personal and business use of their household internet connections throughout the day.” WTA contends that there is likely to be increased congestion on rural networks during the time period adopted by the Bureaus, potentially resulting in an inaccurate or unrepresentative testing of the carrier's service. WTA also argues that mandating testing during evening hours and weekends requires rural carriers to adjust their regular daytime schedule, creating staffing and financial hardships and potentially preventing them from responding to other customer service issues. ITTA supports this point, noting that “evening and weekend test hours require RLECs to re-schedule one or more technicians from their regular daytime maintenance and installation duties and pay them premium or overtime wages.” ITTA also challenges the expansion of the daily test period from 7 p.m. to 11 p.m. to 6 p.m. to 12 a.m., and requests flexibility as to the specific hours that testing may be conducted.

15. The Commission declines to revisit the daily testing period at this time. WTA provides no data to support its claim that rural consumers are more active users of broadband service during daytime hours than urban consumers. Moreover, the Commission's review of MBA data from more rural areas indicates that these areas have similar peak periods to urban areas. As the Commission has stated many times, a primary goal for universal service is to ensure that customers in rural areas receive the same level of service as those in urban areas. By establishing the same testing window for urban and rural areas, the Commission can confirm that consumers in rural areas are not receiving substandard service as compared to consumers in urban areas during the same time periods. Additionally, WTA's concern that testing during the peak period may degrade a consumer's broadband experience is unfounded. As the Commission previously observed, the small amount of data required for speed testing will have no noticeable effect on network congestion. The Commission reminds carriers that it provides them the flexibility to choose whether to stagger their tests over the course of the testing period, so long as they do not violate any other testing requirements.

16. The Commission also disagrees with WTA and ITTA that the current daily testing period will require rural carriers to devote additional personnel hours to implement the Commission's performance testing requirements. Once the testing regime is implemented and carriers have installed the necessary technology and software to test the speed and latency of their networks on a routine basis, the Commission does not anticipate that extensive staffing will be required to monitor the testing process. Because the technological testing options that the Commission has allowed carriers to use are all relatively automated, carriers should not have to adjust schedules to ensure staffing during evenings and weekends. Additionally, the Commission notes that the Bureaus expanded the testing period from 7 p.m. to 11 p.m. to 6 p.m. to 12 a.m. based on several comments from parties that requested a longer testing period. Adding one additional hour on both the front and back end of the testing period allows a carrier's testing to capture the ramp up and ramp down periods before and after peak time, providing a more accurate picture of whether customers are receiving the required level of service. The Commission also reminds parties that the Bureaus committed to revisiting periodically the daily testing window to ensure that the established hours continue to reflect the usage habits of consumers.

17. The Bureaus required a specified number of speed tests during each testing window. In particular, the Performance Measures Order required a minimum of one download test and one upload test per testing hour at each subscriber test location. Providers were required to start separate download and upload speed tests at the beginning of each test hour window, and, after deferring a test due to cross-talk (e.g., traffic to and from the consumer's location that could impact performance testing), providers were required to reevaluate whether the consumer load exceeds the cross-talk threshold every minute until the speed test can be run or the one-hour test window ends.

18. In their Petition for Reconsideration, USTelecom, ITTA, and WISPA request clarification that recipients are afforded flexibility in commencing hourly tests. They argue that “[i]t is not clear from the Performance Measures Order . . . whether `the beginning' of a test hour window requires a recipient to commence testing at the top of the hour, or whether testing must commence for all test subscribers at exactly the same time.” The petitioners state that carriers should only be required to complete the test within the hour, and they should be able to retry tests as frequently as their systems allow until a successful test is administered, rather than retrying deferred tests every minute. Noting that “there should be no practical difference as to whether testing occurs at the top, middle, or closer to [the] end of a testing window,” NTCA, NRECA, and UTC support the petitioners' request that “the Commission reconsider the discrete and specific times at which testing is to be conducted within each hour.” Vantage Point likewise proposes that the Commission permit carriers to distribute speed tests within testing hours in a way that minimizes network impact; otherwise, Vantage Point asserts, requiring all speed testing to start at the beginning of each hour would significantly burden test servers such that test results would not be representative of customers' normal experience.

19. The Commission clarifies that providers do not have to begin speed tests at the beginning of each test hour, as petitioners suggest. In particular, the Commission agrees with Vantage Point that providing greater flexibility in this regard will further minimize the impact of any potential burden on the test servers during speed testing. However, to ensure that there is enough data on carriers' speed performance, providers must still conduct and report at least one download test and one upload speed test per testing hour at each subscriber test location, with one exception. A carrier that begins attempting speed tests within the first fifteen minutes of a testing hour, and repeatedly retries and defers the test at one-minute intervals due to consumer load meeting the adopted cross-talk thresholds (i.e., 64 Kbps for download tests or 32 Kbps for upload tests), may report that no test was successfully completed during the test hour because of cross-talk. A provider that does not attempt a speed test within the first 15 minutes of the hour and/or chooses to retry tests in greater than one-minute intervals must, however, conduct and report a successful speed test for the testing hour regardless of cross-talk. Although this approach continues to differ slightly from MBA practice, the Commission believes that it minimizes the possibility of network congestion at the beginning of the testing hour while ensuring that it will have access to sufficient testing data.

20. The Performance Measures Order established specific test intervals within the daily test period for latency testing, requiring carriers to conduct “a minimum of one discrete test per minute, i.e., 60 tests per hour, for each of the testing hours, at each subscriber test location, with the results of each discrete test recorded separately.” Recognizing that cross-talk could negatively affect the test results, the Bureaus provided flexibility for carriers to postpone a latency test in the event that the consumer load exceeded 64 Kbps downstream and to reevaluate the consumer load before attempting the next test.

21. Several parties express concern with these requirements and request reconsideration of the latency testing framework. USTelecom, ITTA, and WISPA jointly contend that the Bureaus failed to provide adequate notice for the frequency of latency testing and did not justify departing from the MBA practice of combining speed and latency testing under a unified framework. These parties further argue that requiring latency testing once per minute will be administratively burdensome for carriers by preventing them from combining the instructions for testing into a single process and potentially overloading and disrupting some testing methods. Instead, USTelecom, ITTA, and WISPA propose that the number of latency tests should be reduced to match the frequency of speed testing. Midcontinent also supports aligning the frequency of speed and latency testing requirements.

22. AT&T contends that testing once per minute “is unnecessary and arbitrary and capricious” and likewise argues that the Commission should permit carriers to test latency only once per hour. AT&T supports its proposal by providing internal data purporting to demonstrate no material difference between testing latency once per minute versus testing once per hour. As a result, AT&T proposes that the Commission require a minimum of one latency test per hour, but provide flexibility to allow carriers to test more frequently if they desire. ITTA concurs with AT&T's proposed approach.

23. Conversely, NTCA, NRECA, and UTC support the latency testing framework adopted by the Bureaus. These parties observe that aligning the frequency of speed and latency tests would “risk undermining the Commission's statutory mandate to ensure reasonably comparable services in rural and urban areas” because speed does not require as frequent testing as latency in order to demonstrate compliance. In response, USTelecom, ITTA, and WISPA again argue that the Bureaus failed to adequately address the Administrative Procedure Act's notice obligations or present any legal or factual basis for requiring substantially more latency tests than speed tests.

24. The Commission declines to revise the determination of the Bureaus that carriers must conduct latency testing once per minute. Regarding parties' procedural arguments, the Commission notes that, in the two Public Notices seeking comment on the performance measures, the Bureaus specifically explained that adopting the Measuring Broadband America (MBA) testing was under consideration. Indeed, many of the performance testing requirements were derived from or influenced by the Commission's experience with MBA testing. As such, parties had ample notice that the testing regime adopted by the Bureaus, which is a less burdensome variation of the MBA testing, was a potential option. Any argument to the contrary is unfounded.

25. Complaints that the frequency of latency testing will affect network performance also are speculative. The latency testing frequency framework ultimately adopted by the Bureaus is substantially less extensive than the MBA program testing. For example, MBA testing sends approximately 2,000 User Datagram Protocol (UDP) packets per hour, and these 2,000 individual results are summarized as a single reporting record that reflects all 2,000 tests. To be clear, MBA requires latency to be tested 2,000 times per hour, with results summarized into one record. Conversely, the Bureaus adopted testing of 60 UDP packets per hour that consists of approximately 3% of the typical MBA load. The more intensive MBA test frequency has not been found to pose any technical or other difficulties, so there is no reason to believe that the vastly lower frequency of latency testing adopted by the Bureaus will cause concerns. Requiring 60 UDP packets per hour rather than 2,000 balances the need for sufficient testing while minimizing the burden of testing on carriers.

26. The Commission also agrees with the Bureaus that the disparity in testing frequency between speed and latency reflects the different type of testing necessary to determine whether carriers are meeting the required benchmarks. The purpose of speed testing is to determine if the network is properly provisioned to furnish the required speed and whether the network provides sufficient throughput to handle uploads and downloads at particular speeds and times. Because of the burden that such testing puts on a carrier's network, the Bureaus adopted the minimum number of tests necessary to ensure that consumers are receiving broadband service at required speed levels. On the other hand, latency testing indicates whether there is sufficient capacity in the network to handle the level of traffic, which is of particular importance when the network is experiencing high traffic load. In this respect, latency is similar to a pulse rate and can vary substantially as a result of several factors. Even if all these factors are unknown, frequently monitoring latency determines the ability of the network to handle various circumstances and factors that are affecting it. As NTCA, NRECA, and UTC explain:

27. The Commission appreciates AT&T's willingness to share its internal data and analysis. However, AT&T's data reflect only the capabilities of its own network and consisted of a very small sample set—18 customers for one peak period in one instance and “almost” 100 subscribers for one peak period in the other. The Commission also notes that even AT&T's data demonstrated a substantial variation between testing once per hour and once per minute. For example, in its testing, AT&T found that per minute latency testing of customers served by varying technologies showed that 1.17% of tests were higher than 100 ms but once per hour testing showed that 3.04% of tests showed a latency of higher than 100 ms. A difference of 2% when the latency standard is 5% is substantial.

28. Analysis undertaken by Commission staff confirms the importance of more frequent testing to account for the variability associated with latency. Commission staff compared the conclusions that AT&T—and supported by ITTA—drew from its data to what the much larger MBA data demonstrate. This analysis indicates that the risk of false positives and false negatives (i.e., sample test results indicate that a carrier fails, when given overall network performance, it should have passed, or that a carrier passes, when given overall network performance, it should have failed) varies significantly based on the number of measurements per hour. Because the Commission's performance standard for latency requires 95% of the latency measurements to be less than or equal to 100 ms, a carrier would fail the standard if more than 5% of its latency measurements are greater than 100 ms. In general, staff's analysis found that a greater number of measurements reduces the impact of data outliers and makes false positives and false negatives less likely. For example, a single 200 ms data outlier among a sample of 10 latency measurements that otherwise are all under 100 ms would result in the carrier's failing to meet the 95% threshold (i.e., only 9 out of 10 or 90% of the measurements would be at or under 100 ms). However, a single data outlier of 200 ms in a sample of 100 latency measurements would not, in the absence of at least five other measurements exceeding 100 ms, cause the carrier to fail (i.e., 99 out of 100 or 99% of the measurements would be at or under 100 ms).

30. The figure in the following demonstrates staff's analysis of the estimated probability of failure and associated risk of false positive or false negative results with different numbers of measurements from a range of latency distributions observed in the MBA data. Each box (bar) represents the estimated probability of failure for a given latency distribution. The difference in the probability of failure between N number of measurements and N=2000 is the estimated risk of a false positive (the test result indicates that a carrier fails when it should have passed) and a false negative (the test result indicates that a carrier passes when it should have failed). As demonstrated, there is a much higher risk of a false positive or false negative under AT&T's proposed once per hour latency measurement as compared to a moderate risk from 60 measurements per hour.

NMFS and the South Atlantic Council manage the snapper-grouper fishery under the FMP. The FMP was prepared by the South Atlantic Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.).

On June 13, 2019, NMFS published the notice of availability for Amendment 42 in the Federal Register and requested public comment (84 FR 27576). On September 17, 2019, NMFS published a proposed rule for Amendment 42 in the Federal Register and requested public comment (84 FR 48890). On September 5, 2019, the Secretary of Commerce approved Amendment 42 under section 304(a)(3) of the Magnuson-Stevens Act. Amendment 42 and the proposed rule outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 42 and implemented by this final rule is provided below.

This final rule adds three new sea turtle handling and release devices to the Federal regulations, clarifies the requirements for other required gear, and modifies the FMP framework procedure to include future changes to release gear and handling requirements for sea turtles and other protected resources.

For vessels with Federal commercial and charter vessel/headboat permits for South Atlantic snapper-grouper, this final rule adds three new devices to the Federal regulations that have been approved for use by NMFS' Southeast Fisheries Science Center (SEFSC) to safely handle and release sea turtles, and provide more options for fishermen to fulfill existing requirements. Details for these new devices can be found in Amendment 42, the proposed rule, and the 2019 NMFS Technical Memorandum titled, “Careful Release Protocols for Sea Turtle Release with Minimal Injury” (Release Protocols), which is published by the SEFSC. Complete construction specifications for all SEFSC-approved handling and release devices are included in the 2019 NMFS SEFSC Technical Memorandum titled, “Design Standards and Equipment for Careful Release of Sea Turtles Caught in Hook-and-Line Fisheries”. Both documents are available at https://www.fisheries.noaa.gov/southeast/endangered-species-conservation/sea-turtle-and-smalltooth-sawfish-release-gear-protocols. NMFS expects the new release devices in this final rule will increase flexibility for fishermen and regulatory compliance within the snapper-grouper fishery, which may result in positive benefits to sea turtles.

Two of the new sea turtle handling devices are a collapsible hoop net and a sea turtle hoist (net). Both of these devices are more compact versions of the approved long-handled dip net, and could be used for bringing an incidentally captured sea turtle on board the fishing vessel to remove fishing gear from the sea turtle. For the collapsible hoop net, the net portion is attached to hoops made of flexible stainless steel cable; when the collapsible hoop net is folded over on itself for storage, its size reduces to about half of its original diameter. Additionally, there are two versions of the sea turtle hoist. One version consists of the net portion securely fastened to a frame, providing a relatively taut platform for the sea turtle to be brought on board. Another version creates a basket with the frame and net that holds the sea turtle as it is brought on board. Both the collapsible hoop net and the sea turtle hoist use rope handles attached to either side of the frame, in place of the rigid handle on the dip net. Generally, the collapsible hoop net or hoist could be used to bring sea turtles on board vessels with a high freeboard when it is not feasible to use a dip net.

The third new device is a dehooker that can be used to remove an externally embedded hook from a sea turtle. This device has a squeeze handle that secures the hook into notches at the end of the shaft of the dehooker, so the hook can be twisted out. This new device provides another option for fishermen to comply with the regulations for a short-handled dehooker for external hooks.

This final rule also updates the requirements of some other approved devices for clarity and simplicity, and to aid fishermen and law enforcement with compliance and enforcement efforts. Existing regulations use the word “approximately” to define some gear specifications, and this rule replaces “approximately” in the applicable regulations where precise specifications will clarify requirements for the dimensions or lengths of several devices. The revisions provide for either a minimum size dimension or a size range for the short-handled dehookers for external and internal hooks, bite block on the short-handled internal use dehooker, long-nose or needle-nose pliers, bolt cutters, and the block of hard wood and hank of rope when used as mouth openers and gags. In general, these clarifications either establish the previously approximate dimensions as a minimum requirement, or establish the smaller end of the current size range for the required dimensions as a minimum. Other changes to the gear requirements follow.

The SEFSC has also approved 304L grade stainless steel for the construction of all short-handled and long-handled dehookers, in addition to 316L grade stainless steel that has already been approved and is in use. This additional grade of stainless steel is commonly available and is also corrosion resistant to salt water.

Another required device to assist with removing fishing gear from a sea turtle is a pair of monofilament line cutters. SEFSC has clarified that the blade length on the monofilament line cutters must be a minimum of 1 inch (2.5 cm) long but can be longer, and therefore, this final rule revises the specification.

Another required gear type is mouth openers and gags, used to hold a sea turtle's mouth open to remove fishing gear. At least two of the seven types of mouth openers and gags are required on board. SEFSC determined that canine mouth gags, an option for this gear requirement, should not have the ends of the canine mouth gags covered with clear vinyl tubing, friction tape, or similar, to pad the surface, because this is not necessary and can result in the gags not functioning properly. This final rule removes from the regulations the requirement to cover the ends of the canine mouth gags with these materials.

A life-saving device on a vessel, such as a personal flotation device or life ring buoy, may be used as an option to satisfy the required cushion or support device for sea turtles brought aboard a vessel to remove fishing gear. This final rule clarifies that any life-saving device used to fulfill the sea turtle safe handling requirements cannot also be used to meet U.S. Coast Guard safety requirements of one flotation device per person on board the vessel.

Lastly, fishermen are currently required to maintain a paper copy of the Release Protocols on each vessel for reference in the event a sea turtle is incidentally captured. This final rule allows fishermen to use an electronic copy of the document to fulfill the requirement, as long as the electronic document is readily available for viewing and reference during a trip.

Amendment 42 and this final rule allow future changes to the sea turtle release gear and handling techniques under the framework procedure. For example, the South Atlantic Council could more quickly add a new release device for sea turtles if approved by the SEFSC. The South Atlantic Council decided that making these changes through an expedited process may have beneficial biological and socio-economic impacts. The South Atlantic Council concluded that the revised framework procedure will still allow adequate opportunity for the public to comment on any future proposed regulatory changes.

If a sea turtle is incidentally caught during fishing operations, the owner or operator of a federally permitted commercial vessel or a recreational charter vessel or headboat for South Atlantic snapper-grouper must have the 2019 Release Protocols document (incorporated by reference, see § 622.179(b) below) available for reference on board to safely handle and release the animal. In addition, a placard summarizing sea turtle handling and release guidelines (incorporated by reference, see § 622.179(b) below) must be posted on the vessel. The Release Protocols document is a NOAA Technical Memorandum published by the NMFS SEFSC. The placard is also contained within the Release Protocols document, and the placard is available in English, Spanish, and Vietnamese. Both the Release Protocols document and placard are available at the NMFS Southeast Regional Office, 263 13th Ave. South, St. Petersburg, FL 33701, phone: 727-824-5301, or for digital download and printing from this website: https://www.fisheries.noaa.gov/southeast/endangered-species-conservation/sea-turtle-and-smalltooth-sawfish-release-gear-protocols.

NMFS did not receive any public comments on the notice of availability for Amendment 42 or the proposed rule, and therefore, no changes were made to this final rule as a result of public comment.

The Regional Administrator for the NMFS Southeast Region has determined that this final rule is consistent with Amendment 42, the FMP, the Magnuson-Stevens Act, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule is considered an Executive Order 13771 deregulatory action.

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this final rule, why it is being implemented, and the purposes of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this preamble.

The objectives of this final rule are to provide greater flexibility to owners and operators of vessels in the commercial and for-hire snapper-grouper fishing industries (i.e., vessels for which Federal commercial and charter vessel/headboat permits for South Atlantic snapper-grouper have been issued) in complying with release gear regulations, clarify existing requirements for fishery participants and law enforcement officers, and streamline the process for future revisions to release gear and handling procedures for incidentally captured sea turtles and other protected species after approval by the SEFSC.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) during the proposed rule stage that this final rule, if implemented, would not have a significant economic impact on a substantial number of small entities. NMFS did not receive any comments from SBA's Office of Advocacy or the public regarding the economic analysis of Amendment 42 or the certification in the proposed rule. No changes to this final rule were made in response to public comments. The factual basis for the certification was published in the proposed rule and is not repeated here. Because this final rule is not expected to have a significant economic impact on a substantial number of small entities, a final regulatory flexibility analysis is not required and none has been prepared.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: