I. Direct Final Rule

NASA has determined that this rulemaking meets the criteria for a direct final rule because it makes non-substantive changes by removing Appendix A, Certifications, Assurances, and Representations and Appendix B, Terms and Conditions, as well as references to both because this information is already available in NASA's GCAM accessible at https://prod.nais.nasa.gov/pub/pub_library/srba/documents/Grant_and_CooperativeAgreementManual.doc. However, if the Agency receives a significant adverse comment, it will withdraw this direct final rule by publishing a notice in the Federal Register . A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, NASA will consider whether it warrants a substantive response in a notice and comment process.

In December 2014, the Office of Management and Budget (OMB), together with NASA and the other Federal awarding agencies, issued a joint interim rule to implement new guidance at 2 Code of Federal Regulations (CFR) 200 Subtitle B, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance). OMB used the rulemaking procedure when promulgating this common rule on grants and cooperative agreements and required each agency to adopt OMB's common rule on grants and cooperative agreements. Although statutorily unnecessary, in 2015, NASA used rulemaking procedures to incorporate portions of the Uniform Guidance into its Federal Regulations at 2 CFR 1800 because NASA's Grants Management function was affiliated with Procurement Operations at the time. A review of all 32 Federal Grant awarding agencies and how they handled the issuance of the Uniform Guidance indicated that NASA was the only Agency to include Terms and Conditions in its Federal Regulations. The changes listed below will reduce burdens by removing unnecessary requirements in Federal Regulations, as well as allow NASA to streamline its practices to comport with other Federal grant awarding agencies. NASA is issuing a direct final rule to:

1. Remove Appendix A, Certifications, Assurances, and Representations.

2. Remove Appendix B, Terms and Conditions.

3. Remove references to the certification and representations from section 1800.208.

4. Remove references to the terms and conditions from section 1800.210.

5. Remove Deviations for terms, conditions, and forms and removes and reserves section 1800.6.

6. Add references to NASA's GCAM.

51 U.S.C. 20113(e), Public Law 97-258, 96 Stat. 1003 (31 U.S.C. 6301 et seq. ), and 2 CFR part 200.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866.

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Fees assessed by the Administration are nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.

This rule does not contain an information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one 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 § 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and export markets.

For reasons set forth in the preamble, NASA amends 2 CFR part 1800 as follows:

The Department of Homeland Security (DHS) U.S. Immigration and Customs Enforcement (ICE) published a notice of proposed rulemaking (NPRM) in the Federal Register (83 FR 20738, May 8, 2018) proposing to exempt portions of DHS/ICE-007 Criminal History and Immigration Verification (CHIVe) System of Records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. This system of records was published concurrently in the Federal Register (83 FR 20844, May 8, 2018), and comments were invited on both the NPRM and SORN.

DHS received six comments on the NPRM and 92 on the SORN.

DHS has reviewed the six comments received for the NPRM and the 92 comments for the SORN. Because the comments submitted for both the SORN and NPRM were similar in nature, DHS has summarized them based on the nature of the comment. The comments primarily discussed the following:

• Objecting to the Department of Health and Human Services (HHS) using immigration status as a factor in granting or denying an application for a potential Unaccompanied Alien Child (UAC) sponsor;

• Objecting to ICE's involvement in the UAC sponsor screening process by collecting information on potential UAC sponsors and other adult members of those sponsors' households, determining these individuals' immigration statuses, and sharing that information with HHS;

• Stating that this new process is not in the best interests of the child, and that children will be denied sponsors who could provide suitable living environments; and

• Objecting to the potential separation of families, when this would not be in the best interests of the child.

These comments pertain to ICE's involvement in the UAC sponsor screening process. In this process, ICE shares very limited information with HHS for a discrete purpose. Under its legal authority, ICE shares immigration status and limited criminal history information with HHS to inform an HHS determination whether to grant or deny a UAC sponsorship application.

Though this process involves the sharing of information, the comments received do not pertain to the Privacy Act exemptions proposed by DHS in this rulemaking. Therefore, DHS will implement the rulemaking as proposed.

For the reasons stated in the preamble, DHS amends chapter I of title 6, Code of Federal Regulations, as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 747-8 and 747-8F series airplanes. The NPRM published in the Federal Register on August 3, 2018 (83 FR 38096). The NPRM was prompted by reports of damaged vapor seals, block seals, and heat shield seals on the outboard pylons between the engine strut and aft fairing. The NPRM proposed to require installing new aft fairing vapor seals, heatshield seals, heatshield seal retainers, block seals, and outboard lateral restraint access panels.

We are issuing this AD to address heat damage to the vapor seals between the engine strut and aft fairing. Such damage could allow flammable fluid leakage out of the aft fairing, which could result in an uncontrolled fire in the engine strut.

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

United Parcel Service (UPS) requested that operators be allowed to perform a records review to determine if the affected part number is installed in lieu of performing an inspection. UPS stated that the records review will provide an equivalent level of safety. UPS stated that in accordance with paragraph (g)(2) of the proposed AD, it would be required to inspect all Model 747-8F airplanes within 4 years or 4,800 flight cycles after the AD effective date, whichever occurs first.

We agree with the commenter's request that a review of the airplane maintenance records is acceptable in lieu of an inspection if the part number of the part can be conclusively determined from that review. We have revised paragraph (g)(2) of this AD accordingly.

Boeing requested we revise the proposed AD to address airplanes only specified in Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, line numbers (L/Ns) 1420 through 1540, instead of all 747-8 and 747-8F series airplanes as specified in paragraph (c), “Applicability,” of the proposed AD.

Boeing stated that airplanes not identified in Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, L/Ns 1541 and on, were built and delivered from the Boeing factory with the correct parts. Boeing commented that the factory utilizes the approved Boeing Production System to maintain configuration control of the airplanes through delivery, and that the remainder of the Model 747-8 fleet is covered by Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017.

We disagree with the commenter's request. As we stated in the “Differences Between this Proposed AD and the Service Information” of the NPRM, the applicability in this AD does not refer to paragraph l. A., “Effectivity,” of Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017. The service information does not contain a comprehensive list of the airplanes affected by the identified unsafe condition because the spare parts identified in paragraph (j) of this AD have been determined to be rotable parts that are capable of being installed on all Model 747-8 and 747-8F series airplanes. Therefore, the applicability of this AD is all Model 747-8 and 747-8F series airplanes.

Additionally, there is the potential for previously delivered Model 747-8 and 747-8F airplanes having the affected spare parts installed during a repair of the aft fairing. Delivered airplanes with line numbers 1541 and on could have been exposed to the affected parts between delivery and as of the effective date of this AD, which is why operators can either review airplane maintenance records to confirm whether the subject parts are not installed, or perform an inspection of the parts on the airplanes.

We have been informed by operators that the practice of rotating interchangeable parts among airplanes is widespread and even a key part of their operations. In the absence of an AD or airworthiness limitation (AWL) that restricts the installation of the affected parts, we cannot be assured that the unsafe condition will not be introduced to Model 747-8 and 747-8F airplanes that are not identified in Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017. In addition, we cannot rely solely on the Boeing Production System to maintain configuration control of these airplanes until the AD has been published. In order to eliminate the unsafe condition, we must address all of the potentially exposed airplanes. We have not changed this AD in this regard.

Boeing requested that we remove the “Parts Installation Prohibition” paragraph in the proposed AD. Boeing stated that some of the parts listed in paragraph (j), “Parts Installation Prohibition,” remain in use on all Model 747-8 airplanes and therefore cannot be prohibited.

Boeing also commented that, regarding the seals, rotation of these parts from one airplane to another is not feasible due to their location and the effort required, as the aft fairings must be removed and reinstalled to gain access to the seals. In addition, Boeing stated that the lateral restraint access panels were revised to include an integral air scoop on one side, and if a panel is inadvertently installed in an incorrect location, the seal system would still operate with an acceptable level of safety.

We partially agree with the commenter's request. We agree the vapor seal-outboard aft fairing, part number (P/N) 323U8452-3, is a part that could be used as a part of the service information modification. Therefore, we have revised the “Parts Installation Prohibition/Limitation” paragraph in this AD to specify that no person may install a vapor seal with P/N 323U8452-3, on any airplane, unless it is a new vapor seal that has been installed as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017.

We disagree with removing any other part numbers as they are subject to the heat damage that leads to the unsafe condition. However, we have revised the compliance time specified in paragraph (j) of this AD by removing “as of the effective date of this AD” and replacing it with either “as of the determination that no affected part is installed” or “after accomplishing the required actions specified in paragraph (g) of this AD”, depending on whether the actions in the service information specified in paragraph (g) of this AD must be done.

In addition, for clarity, we revised paragraph (g)(2) of this AD by listing the affected part numbers instead of referring to paragraph (j) of this AD for the part numbers.

Cathay Pacific Airways Limited (Cathay) requested clarification of the requirements in the “Parts Installation Prohibition” paragraph of the proposed AD. Cathay stated that the paragraph should only be applicable to airplanes that have been modified in accordance with Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, instead of being applicable to any airplane modified as of the effective date of the AD. Cathay stated that if the intention is indeed for any airplane, then it asked the FAA to clarify the following:

• Whether the intent of the proposed AD is to fulfill this paragraph requirement as of the compliance time of the proposed AD instead of as of the effective date of this proposed AD;

• Whether this paragraph affects the already installed parts or only the new parts to be installed in accordance with Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017. Cathay stated that on the effective date of the proposed AD, some of the airplanes are still in pre-mod configuration and are installing the pre-mod parts;

• Whether after the effective date of the proposed AD, do operators need to accomplish Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, immediately and install the post-modification parts if the related parts are found damaged at line maintenance as a non-routine findings; and

• Whether after the effective date of the proposed AD, do operators need to accomplish Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, immediately and install the post-modification parts if the related parts are found damaged during the Boeing Alert Service Bulletin 747-54A2246, dated February 5, 2016, inspections.

We agree to provide clarification for the commenter. Paragraph (g)(1) of this AD requires operators to complete the requirements in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, within 4 years or 4,800 flight cycles after the effective date of this AD. Paragraph (g)(2) of this AD requires operators to determine if any affected part is installed and if so, to complete the applicable replacement in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, within 4 years or 4,800 flight cycles after the effective date of this AD.

Within that time period, operators of airplanes that have any affected parts may use the existing/pre-modification parts that are subject to the repetitive inspections of AD 2017-04-13, Amendment 39-18808 (82 FR 11795, February 27, 2017) (“AD 2017-04-13”). If it is discovered during line maintenance that the subject parts are damaged, the operator has the option to replace the parts that are damaged using either Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, or Boeing Alert Service Bulletin 747-54A2246, dated February 5, 2016. Thus, operators are able to continue to conduct the repetitive inspections as well as accomplish the repairs using Boeing Alert Service Bulletin 747-54A2246, dated February 5, 2016, while using the older parts, for up to 4 years or 4,800 flight cycles from the effective date of this AD.

However, operators are required to accomplish Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, within the same compliance time specified in this AD. The FAA encourages operators to install the newer parts to eliminate the unsafe condition and terminate the inspections required by AD 2017-04-13.

For airplanes that do not have any affected parts, we have determined that in order to address the unsafe condition, we cannot allow that condition to be introduced into additional airplanes in the fleet. Therefore, paragraph (j)(1) of this AD is applicable to those airplanes and the prohibition and limitation specified in paragraphs (j)(1)(i) and (j)(1)(ii) of this AD must be complied with as of the determination that no affected part is installed.

Paragraph (j)(2) of this AD is only applicable to the airplanes that have incorporated the actions specified in Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017. Once an operator incorporates the new parts in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017, operators must comply with the prohibition and limitation specified in paragraphs (j)(2)(i) and (j)(2)(ii) of this AD.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 747-54A2247, dated August 3, 2017. This service information describes procedures for installing new aft fairing vapor seals, heatshield seals, heatshield seal retainers, block seals, and outboard lateral restraint access panels. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 13 airplanes of U.S. registry. We estimate the following costs to comply with 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. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Viking Air Limited Model CL-215-6B11 (CL-215T Variant) and CL-215-6B11 (CL-415 Variant) airplanes. The NPRM published in the Federal Register on February 8, 2019 (84 FR 2791). The NPRM was prompted by a report that a supplier fabricated Teflon parts with a charge of 15 percent fiberglass content instead of the specified 5 percent fiberglass content. The NPRM proposed to require repetitive detailed visual inspections of the aileron control system cables and flap interconnect system cables for damage or disconnected cables, corrective actions if necessary, and replacement of the Teflon parts in the aileron control systems, aileron/rudder interconnect, and aileron power unit beam. The NPRM proposed that the replacement of these parts would terminate the repetitive inspections.

We are issuing this AD to address parts manufactured with this higher percentage of fiberglass, which may cause deterioration of control cables and adjacent parts due to greater friction should they come into contact, which could lead to reduced controllability of the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2018-27, dated October 12, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Viking Air Limited Model CL-215-6B11 (CL-215T Variant) and CL-215-6B11 (CL-415 Variant) airplanes. The MCAI states:

Signs of damage include broken wires, unusual wear, or fraying cables. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1070.

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

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

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

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

Bombardier has issued Service Bulletin 215-3185, Revision 1, dated January 28, 2014; and Service Bulletin 215-4476, Revision 1, dated January 28, 2014. The service information describes procedures for a detailed visual inspection in the area of the aileron power control unit for damaged or disconnected aileron control system cables or flap interconnect system cables, and corrective actions. These documents are distinct since they apply to different airplane models in different configurations.

Bombardier has also issued Service Bulletin 215-3186, Revision 3, dated September 29, 2015; and Service Bulletin 215-4477, Revision 2, dated September 29, 2015. The service information describes procedures for replacement of Teflon parts in the aileron control system, the aileron/rudder interconnect, and the aileron power unit beam. 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.

We estimate that this AD affects 1 airplane of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on October 16, 2018 (83 FR 52173). The NPRM was prompted by reports of cracking in the frame web, frame integral inboard chord, and fail-safe chord on multiple airplanes in multiple locations between stringers S-10 and S-17 above the passenger floor, in addition to an evaluation by the DAH indicating that certain fuselage frame splices are subject to WFD. The NPRM proposed to require repetitive inspections of certain fuselage upper frames, side frames, fail-safe chords, inboard chords, frame webs, and stringers; an inspection for open tooling holes and the presence of repairs in certain inspection zones; and applicable on-condition actions.

We are issuing this AD to address cracks in these locations, which could grow large enough to sever frames. Continued operation with multiple adjacent severed frames or a combination of a severed frame adjacent to fuselage skin cracks in chem-milled pockets could result in a loss of structural integrity or uncontrolled decompression.

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

Aviation Partners Boeing stated that accomplishing the Supplemental Type Certificate (STC) ST01219SE does not affect the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added paragraph (c)(2) 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 Mark Bowen observed that “if a crack or non SRM/Boeing repair” is found as part of inspections accomplished under Boeing Alert Service Bulletin 737-53A1360, the only action given in the proposed AD is to contact Boeing for repair or alternative inspections. He asked whether frame replacement could be considered an alternative option to contacting Boeing for a repair or alternative inspections.

We partially agree with the commenter's request. Frame replacement that removes the cracked or repaired structure may be an option to repair or alternative inspections, provided the replacement can be shown to adequately address the unsafe condition. However, we note that the commenter did not provide sufficient documentation to show that, in regard to the unsafe condition identified in this AD, a frame replacement would adequately address the unsafe condition. In addition, the commenter did not provide details on a proposed method of compliance for accomplishing the proposed frame replacement and post-replacement inspections, nor any evidence of support for the proposal from the Boeing Commercial Airplanes Organization Designation Authorization (ODA). Operators may apply for an alternative method of compliance in accordance with paragraph (k) of this AD, provided they can show that frame replacement adequately addresses the unsafe condition. We have not changed this AD in this regard.

Boeing has requested that we remove Model 737-100 airplanes from the sentence “We have received a report indicating that cracking is being found . . . on multiple Model 737-100, -200, -200C, -300, -400, and -500 series airplanes” in the Discussion paragraph of the NPRM. The commenter asserted that they have not received reports of frame cracking on that airplane model.

We acknowledge that cracking has not been found on Model 737-100 series airplanes. However, that sentence is not restated in this final rule, so we have not revised it in this regard.

Boeing requested that we change the location of the unsafe condition from “below the passenger floor” to “between stringers S-10 and S-17 above the passenger floor,” because the proposed AD and the referenced service information only address frame cracking above the passenger floor.

We agree with the commenter's request and have changed this AD accordingly.

Boeing observed that the proposed AD would include the application of actions specific to the Model 737-200C airplanes (Group 3) to certain Model 737CL airplanes that have been modified to a non-Boeing STC cargo configuration. Boeing recommended the FAA coordinate the proposed compliance times and actions with the STC holder.

We partially agree with Boeing's comments. We agree with their observation regarding Model 737CL airplanes. However, we do not agree to coordinate compliance times and actions with the STC holders because this would unnecessarily delay issuance of the final rule, and the times and actions are similar for airplanes converted to a freighter. If an operator of airplanes modified with a non-Boeing freighter conversion STC would like to accomplish the AD at different times or with different actions, they can request an AMOC in accordance with paragraph (k) of this AD. No changes to this AD are necessary.

We included a standard service bulletin exception in paragraph (i)(1) of the proposed AD for determining compliance with this AD. However, we did not intend the exception to apply to the text that describes exceptions to inspection areas found in notes or flag notes of Boeing Alert Service Bulletin 737-53A1360, dated June 21, 2018. Therefore, we have revised paragraph (i)(1) of this AD accordingly.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 737-53A1360, dated June 21, 2018. This service information describes procedures for repetitive inspections of certain fuselage upper frames, side frames, fail-safe chords, inboard chords, frame webs, and stringers; an inspection for open tooling holes and the presence of repairs in certain inspection zones; and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 262 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2016-16-01, Amendment 39-18599 (81 FR 51325, August 4, 2016; corrected September 1, 2016 (81 FR 60246)) (“AD 2016-16-01”). AD 2016-16-01 applied to certain Airbus SAS Model A300-200 Freighter, -200, and -300 series airplanes. The NPRM published in the Federal Register on December 10, 2018 (83 FR 63444). The NPRM was prompted by a report of a manufacturing defect ( i.e., improperly heat-treated materials) that affects the durability of affected parts in the cargo and cabin compartments. The NPRM proposed to continue to require an inspection of affected structural parts in the cargo and cabin compartments to determine if proper heat treatment has been done, and replacement or repair if necessary. The NPRM also proposed to require inspection of additional locations of the cabin compartment structure. We are issuing this AD to address crack initiation and propagation in affected parts in the cargo and cabin compartments, which could result in reduced structural integrity of the fuselage.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, issued EASA AD 2018-0147, dated July 13, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A330-200 Freighter, -200, and -300 series airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-1005.

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

American Airlines (American) stated its support for the NPRM, but noted that Airbus Service Bulletin A330-53-3228, Revision 01, dated April 11, 2018, included several errors, including mislabeled parts, parts depicted in the wrong locations, and incorrect figure references. American reported that Airbus has verified the errors, which Airbus indicated would be addressed in a revised service bulletin. To avoid the need for requests for alternative methods of compliance (AMOCs), American requested that we delay issuance of the AD until revised service information has been released.

We acknowledge the commenter's concerns. The amount of clarification needed would be too complex to include in this AD. We expect to work with Airbus and EASA to issue a global AMOC that addresses any known errors. In addition, we have added paragraph (n) in this AD, “Exception to Service Information Specifications,” to provide operators with information on how to address any other issues, if needed. We have redesignated subsequent paragraphs accordingly. We have also revised paragraphs (j), (k), (l)(2), and (m) of this AD to refer to this exception.

In light of the critical nature of the identified unsafe condition, we do not consider it warranted to delay the issuance of this final rule. If Airbus provides a revision to Airbus Service Bulletin A330-53-3228, Revision 01, dated April 11, 2018, we will review it in consideration of an AMOC for this AD, or we may consider future rulemaking action.

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

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

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

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

Airbus has issued Service Bulletin A330-53-3227, Revision 02, dated July 25, 2018, which describes procedures for inspecting affected structural parts in the cargo compartment to determine if proper heat treatment has been done, and replacing discrepant parts.

Airbus has also issued Service Bulletin A330-53-3228, Revision 01, dated April 11, 2018, which describes procedures for inspecting affected structural parts in the cabin compartment to determine if proper heat treatment has been done, doing additional work (inspecting additional locations of the cabin compartment structure), and doing related investigative and corrective actions. Related investigative actions include an eddy current inspection to verify the measurement from the inspection to determine if proper heat treatment has been done. Corrective actions include replacing discrepant parts.

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

We estimate that this AD affects 20 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary on-condition action that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need this on-condition action:

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. We do not control warranty coverage for affected individuals. As a result, we have included all known costs in our cost estimate.

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Manitowoc County Airport, Manitowoc, WI, and Sheboygan County Memorial Airport, Sheboygan, WI, to support IFR operations at these airports.

The FAA published a notice of proposed rulemaking in the Federal Register (84 FR 6711; February 28, 2019) for Docket No. FAA-2019-0081 to amend the Class E airspace extending upward from 700 feet above the surface at Manitowoc County Airport, Manitowoc, WI, and Sheboygan County Memorial Airport, Sheboygan, WI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to publication, the FAA discovered a typographic error in the bearing in the Manitowoc, WI, airspace legal description. That error is corrected in this action.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:

Modifying the Class E airspace extending upward from 700 feet above the surface at Manitowoc County Airport, Manitowoc, WI, by adding an extension 9.7 mile west and 5.8 miles east of the 350° (corrected from 352) bearing from the Manitowoc County: RWY 17-LOC extending from the Manitowoc County: RWY 17-LOC to 11 miles north of the Manitowoc County: RWY 17-LOC; and

Amending the Class E airspace extending upward from 700 feet above the surface to within a 6.7-mile radius (reduced from a 7-mile radius) at the Sheboygan County Memorial Airport, Sheboygan, WI; and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is due to an airspace review caused by the decommissioning of the Manitowoc VOR, which provided navigation information for the instrument procedures at these airports, as part of the VOR MON Program.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Brady, Curtis Field, Brady, TX, to support instrument flight rule operations at these airports.

The FAA published a notice of proposed rulemaking in the Federal Register (84 FR 6710; February 28, 2019) for Docket No. FAA-2019-0035 to amend Class E airspace extending upward from 700 feet above the surface at Brady, Curtis Field, Brady, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:

Modifying the Class E airspace extending upward from 700 feet above the surface within a 6.4-mile radius of the Brady, Curtis Field and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

Airspace reconfiguration is necessary due to the decommissioning of the Brady NDB, and cancellation of the NDB approach. This action enhances the safety and management of the standard instrument approaches.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it corrects an error in the header of the airspace legal description of the Class E airspace designated as an extension to the Class E surface area at Columbus Municipal Airport, Columbus, NE.

The FAA discovered an error in the header of the airspace legal description for the Class E airspace designated as an extension to the Class E surface area at Columbus Municipal Airport, Columbus, NE, published in the Federal Register (83 FR 38253; August 6, 2018). The state in the header of the airspace legal description incorrectly listed MO instead of NE as listed in the city and state in the header. This action corrects that error and does not affect the boundaries or operating requirements of the airspace.

Class E airspace designations are published in paragraph 6004 of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by correcting the state (formerly MO) listed in the header of the airspace legal description for the Class E airspace designated as an extension to the Class E surface area at Columbus Municipal Airport, Columbus, NE.

This is an administrative change that does not affect the airspace boundaries or operating requirements, and, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The Abandoned Mine Land Reclamation Program was established by Title IV of the Act, (30 U.S.C. 1201 et seq. ) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Tribes to assume exclusive responsibility for reclamation activity within the State or on Tribal lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On February 1, 1982, the Secretary of the Interior conditionally approved the Kansas Plan and fully approved it on April 14, 1982. Effective June 3, 1983, the Secretary of the Interior removed all conditions prohibiting the funding of State abandoned mine land construction grants. You can find background information on the Kansas Plan, including the Secretary's findings, the disposition of comments, and the approval of the Plan in the February 1, 1982, Federal Register (47 FR 4513). You can find later actions concerning the Kansas Plan and amendments to the Plan at 30 CFR 916.20 and 916.25.

By letter dated February 23, 2016 (Administrative Record No. KS-628), and in accordance with 30 CFR 884.15(a), Kansas sent OSMRE an amendment to its Plan at its own initiative.

We announced receipt of the proposed amendment in the July 14, 2016, Federal Register (81 FR 45426). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment to the Plan. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on August 15, 2016. We did not receive any public comments.

We are approving the amendment as described below. The following are the findings we made concerning Kansas's amendment under SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. Any Plan revisions that we do not specifically discuss below concern non-substantive wording or editorial changes and can be found in the full text of the Plan amendment available at www.regulations.gov.

Kansas, in Part I of the Plan, included an updated letter from the Governor designating the Kansas Department of Health and the Environment (KDHE) as the agency responsible for the Abandoned Mine Reclamation Program in the state of Kansas. The content of this letter is consistent with the Federal requirements of 30 CFR 884.13(a)(1), that requires the Governor of Kansas to designate the governing authority to administer the State's reclamation program and to receive and administer grants under Part 886. Therefore, we are approving its inclusion.

Kansas, in Part II of the Plan, included an updated legal opinion from the chief legal officer of the KDHE authorizing the KDHE, under the Kansas Mined-Land Conservation and Reclamation Act, to conduct its reclamation program. The legal opinion references three areas where Kansas law previously differed from the Federal requirements, all of which have since been modified through legislative actions to comply with the Federal requirements. These changes include: Authorizing the KDHE to receive grants and funds appropriated under any Federal act; authorizing KDHE to place a lien for its own benefit after reclamation of privately owned land; and authorizing KDHE to acquire abandoned mine land through purchase, donation, or eminent domain. The content of this legal opinion is consistent with the Federal requirements of 30 CFR 884.13(a)(2), requiring the Kansas Attorney General or chief legal officer to render an opinion that the agency designated by the Governor has the authority under Kansas law to conduct the program in accordance with Title IV of SMCRA. Therefore, we are approving its inclusion.

Kansas, in Part IV of the Plan, included a description of the policies and procedures to be followed by the KDHE in conducting its reclamation program. These policies and procedures include:

Kansas, in Part IV.A of the Plan, described three reclamation program objectives. The objective given highest priority is the protection of public health, safety, and property, from extreme danger resulting from the adverse effects of coal mining practices [Part IV.A(1) of the Plan]. This includes sites that have been degraded by coal mining practices and the areas adjacent to those sites. The objective given the second highest priority is the protection of public health and safety from the adverse effects of coal mining practices [Part IV.A(2) of the Plan]. This includes sites that have been degraded by coal mining practices and the areas adjacent to those sites. The third stated objective is the restoration of land and water resources and the environment that has been degraded by the adverse effects of coal mining practices [Part IV.A(3) of the Plan]. These restoration measures include the conservation and development of soil, water, woodland, fish and wildlife, recreational resources, and agricultural productivity. These program purposes, goals, and objectives are consistent with the Federal requirements of 30 CFR 884.13(a)(3)(i) and section 403 of the Act. Therefore, we are approving their inclusion.

Kansas, in Part IV.B of the Plan, described the specific criteria for identifying lands and waters eligible for reclamation. Eligible lands and waters include those affected prior to August 3, 1977; those not under the reclamation responsibility of the operator, permittee, or agent of the permittee under government statutes or a result of bond forfeiture; and those that were affected by mining for minerals and materials other than coal. Ineligible lands and waters include those where the amount of bond forfeiture is sufficient to pay the total cost of reclamation, and those designated for remedial action pursuant to either the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq. ), or the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. 9601-9675). These descriptions are consistent with the Federal requirements of 30 CFR 884.13(a)(3)(ii). Therefore, we are approving their inclusion.

Kansas, in Part IV.C of the Plan, described the procedures for the ranking and selection of reclamation projects. These descriptions include reclamation priorities, emergency projects, utilization of other State agencies, solicitation of public input, and the use of Federal funds. The three priority categories described are consistent with Section 403(a) of SMCRA. These descriptions are consistent with the Federal requirements of 30 CFR 884.13(a)(3)(ii). Therefore, we are approving their inclusion.

Kansas, in Part IV.D of the Plan, described KDHE's coordination with other agencies, which is limited to coordinating on the assessment of resource values and permits. Resource value coordination is done on a project specific basis and may include cultural and historic resources, water quality, vegetation, fish and wildlife, soils, air quality, and recreational resources. Coordination with other agencies may also be required to obtain any necessary permits or authorizations. Additional coordination with the Rural Abandoned Mine Program or local Tribes is not necessary, because the KDHE is the only entity in the State of Kansas with a reclamation plan. This description of agency coordination is consistent with the Federal requirements of 30 CFR 884.13(a)(3)(iii). Therefore, we are approving its inclusion.

Kansas, in Part IV.E of the Plan, described its policies and procedures regarding land acquisition, management, and disposal. Under its Plan, all lands that have been adversely affected by coal mining activity are eligible for acquisition, following a fair market value appraisal from an independent appraiser. If OSMRE grant funds are to be used for the acquisition, prior approval will be obtained from OSMRE. Lands may also be accepted by the Secretary of the Department on behalf of the State as a donation or gift. Any lands acquired by the State will be managed in accordance with Kansas state law. Disposition of such lands will be conducted in accordance with Federal law. These acquisition, management, and disposition policies and procedures are consistent with the Federal requirements of 30 CFR 884.13(a)(3)(iv). Therefore, we are approving their inclusion.

Kansas, in Part IV.F of the Plan, described its policies and procedures for reclamation on private land. Under its Plan, the KDHE has the authority to place a lien against lands where reclamation work results in a significant increase in fair market value. Any such lien may be satisfied in accordance with Kansas state law. Land appraisals must be conducted by an independent appraiser, unless KDHE has previously determined that no lien will be placed against the property. During OSMRE's review, it was noted that this section of the Plan referred to a Kansas state law (K.S.A. 49-428e), which fails to address the full requirements of 30 CFR 882.13(b) regarding notifying the landowner of the proposed lien and allowing the landowner a reasonable time to pay that amount in lieu of filing the lien. However, these lien requirements are satisfied in a different Kansas state law (K.A.R. 47-16-6). On January 17, 2017, OSMRE requested that Kansas add a reference to K.A.R. 47-16-6 in this section of their proposed Plan. Because this requested change was minor and non-substantive, Kansas was given the option to either incorporate this change or withdraw the amendment and resubmit at a later date. Kansas returned a revised Plan, which incorporated the additional reference on January 19, 2017, and the amendment process was allowed to continue uninterrupted. These revised policies and procedures are consistent with the Federal requirements of 30 CFR 882.13 and 884.13(a)(3)(v). Therefore, we are approving their inclusion.

Kansas, in Part IV.G of the Plan, stated that its policies and procedures regarding rights of entry to lands or property for the purposes of determining the existence of adverse effects of past coal mining practices, and performing reclamation and emergency reclamation work will comply with Kansas state law. These policies and procedures are consistent with the Federal requirements of 30 CFR 884.13(a)(3)(vi). Therefore, we are approving their inclusion.

Kansas, in Part IV.H of the Plan, described its public participation policies in the development and operation of its Plan. The KDHE may offer public meetings to provide information on proposed activities. News releases, including information on all public and adjudicatory hearings, may also be released to either state-wide or regional news outlets based on applicability. Public notices will include background information, a description of the requested action, an outline of the procedures, and other necessary information. All information maintained by KDHE will be accessible to the public in accordance with Kansas state law. Additional public involvement will occur through the grant and program amendment process, which will be provided to the public for review and comment prior to or concurrent with submittal to OSMRE. These policies and procedures are consistent with the Federal requirements of 30 CFR 884.13(a)(3)(vii). Therefore, we are approving their inclusion.

Kansas, in Part IV.I of the Plan, described its post-reclamation inspection procedures. Inspections of completed AML projects will document successes and identify any issues requiring additional maintenance. These routine inspections will continue for at least two years, or until permit monitoring requirements expire and the project site is deemed stable. These procedures have no counterpart Federal regulation, but their inclusion does not make the Plan inconsistent with the Federal requirements of 30 CFR 884.13. Therefore, we are approving their inclusion because OSMRE finds that this requirement of the Plan furthers the objective of section 405(i) that requires OSMRE, through its designated agents, to monitor the progress and quality of the Plan. Moreover, this provision is included because we determined that inspections of completed AML projects is no less stringent than section 405 of the Act and no less effective than the implementing regulations at part 884.

Kansas, in Part V of the Plan, included a description of the administrative and management structure to be used by the KDHE in conducting its reclamation program. The structure includes:

Kansas, in Part V.A of the Plan, described the organization of the KDHE and its relationship to other State organizations that may become involved in its reclamation program. KDHE is organized into two main branches, including the Division of the Environment and the Division of Health. The Surface Mining Section, part of the Bureau of Environmental Remediation, has the primary oversight responsibility for the State's reclamation program. Other agencies that may become involved include the Kansas Department of Agriculture, the KDHE Bureau of Water, the KDHE Bureau of Air, Kansas Forestry Service, Kansas Geological Survey, and the Kansas State Historical Society. This description of agency organization is consistent with the Federal requirements of 30 CFR 884.13(a)(4)(i). Therefore, we are approving its inclusion.

Kansas, in Part V.B of the Plan, described its personnel and staffing policies that will govern the assignment of personnel to its reclamation program. The KDHE will be responsible for complying with all pertinent Federal and State laws. This description of agency personnel policies is consistent with the Federal requirements of 30 CFR 884.13(a)(4)(ii). Therefore, we are approving its inclusion.

Kansas, in Part V.C of the Plan, stated that the purchasing and procurement systems used by the KDHE will be in accordance with Kansas Purchasing and Contracts regulations per the Kansas Department of Administration. These regulations meet the requirements of Office of Management and Budget (OMB) Circular A-102. This statement is consistent with the Federal requirements of 30 CFR 884.13(a)(4)(iii). Therefore, we are approving its inclusion.

Kansas, in Part V.D of the Plan, stated that the financial management system used by the KDHE will meet the requirements of OMB Circular A-102, and 43 CFR part 12, subpart C. The accounting system used by the KDHE for the State Abandoned Mine Reclamation Fund will separate the accounting for each funding source, as identified in 30 CFR 872.12. This system description is consistent with the Federal requirements of 30 CFR 884.13(a)(4)(iv). Therefore, we are approving its inclusion.

Kansas, in Parts VI and VIII of the Plan, included a description of the reclamation activities to be conducted under its reclamation plan. This general description includes:

Kansas, in Part VI.A of the Plan, described the problems occurring on known or suspected lands and waters which require reclamation. Examples of such problems include: Clogged streams and stream lands, dangerous piles or embankments; highwalls; impoundments; slides; hazardous and explosive gases; hazardous equipment or facilities; hazardous water bodies; industrial and residential waste; polluted water; subsidence; surface burning; underground mine fires; and vertical openings. This description is consistent with the Federal requirements of 30 CFR 884.13(a)(5)(ii). Therefore, we are approving its inclusion.

Kansas, in Part VI.B of the Plan, stated that the KDHE will use the best available technology and employ the corrective measures outlined in the OSMRE Guidelines to address the problems described. This statement is consistent with the Federal requirements of 30 CFR 884.13(a)(5)(iii). Therefore, we are approving its inclusion.

Kansas, in Part VI.C of the Plan, described the factors to be considered in determining the minimum amount of reclamation needed to make a site safe and environmentally suitable. These factors include: The affected land and water area; uniformity of problem(s) over the entire site; proposed post-reclamation land use; available funds; off- and on-site benefits; required later additional reclamation work; landowner participation; cost effectiveness; multiple land use benefits; remining possibilities; and, any Federal or State violations on interim program sites. These reclamation factors have no counterpart Federal regulation, but their inclusion does not make the Plan inconsistent with the Federal requirements of 30 CFR 884.13. Therefore, we are approving their inclusion because we determined that the inclusion thereof is no less stringent than section 405 of the Act and no less effective than the implementing regulations at part 884.

Kansas, in Part VI.D of the Plan, described potential adverse impacts of reclamation. Kansas stated that best available methodologies will be used to minimize short-term adverse impacts of reclamation activities. Potential impacts include: The release of fugitive dust and noxious gasses; sedimentation and erosion; temporary degradation of stream water quality and aquatic and riparian habitat; increase in noise and traffic levels; and temporary aesthetic degradation of the area. This description has no counterpart Federal regulation, but its inclusion does not make the Plan inconsistent with the Federal requirements of 30 CFR 884.13. Therefore, we are approving its inclusion.

Kansas, in Part VIII of the Plan, included a map showing the general location of known or suspected eligible lands and waters within the State which require reclamation. This map is consistent with the Federal requirements of 30 CFR 884.13(a)(5)(i). Therefore, we are approving its inclusion.

Kansas, in Part VII of the Plan, included a description of the conditions prevailing in the different geographic areas of the State where reclamation is planned. This description includes:

Kansas, in Part VII.A of the Plan, described the economic base for the State's five primary coal producing counties, including population density, average per capita income, employment, and land use data. This description is consistent with the Federal requirements of 30 CFR 884.13(a)(6)(i), requiring a general description of the conditions, including economic base, prevailing in the different geographic areas of Kansas where reclamation is planned. Therefore, we are approving its inclusion.

Kansas, in Part VII.B of the Plan, stated that, to ensure that all potential impacts of the reclamation process are mitigated, the KDHE will consult with the Kansas State Historical Society regarding any significant esthetic, historic, or cultural sites, and will consult with the Kansas Department of Wildlife, Parks and Tourism (KDWPT) regarding any sites of significant recreational value. This statement is consistent with the Federal requirements of 30 CFR 884.13(a)(6)(ii). Therefore, we are approving its inclusion.

Kansas, in Part VII.C of the Plan, stated that, in determining whether species mitigation or avoidance is required during reclamation project planning, KDHE will consult with the U.S. Fish and Wildlife Service and the KDWPT to ensure that the most current list of threatened or endangered plant, fish, or wildlife species and their habitats is used. This statement is consistent with the Federal requirements of 30 CFR 884.13(a)(6)(iii), requiring a general description, derived from available data, of the endangered and threatened plant, fish, and wildlife and associated habitat. Therefore, we are approving its inclusion.

OSMRE solicited public comment and provided an opportunity for a public hearing on the amendment of the Kansas Plan. No public comments were received and because no one requested an opportunity to speak at a public hearing, no hearing was held.

On May 3, 2016, as required by 30 CFR 884.14(a)(2), we requested comment on the amendment from various Federal agencies with an actual or potential interest in the Kansas Plan (Administrative Record No. KS-628.02). We did not receive any comments.

Under 30 CFR 884.14(a)(2), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On May 3, 2016, we requested comments on Kansas's Plan amendment (Administrative Record No. KS-628), but neither the SHPO nor ACHP responded to our request.

Based on the above findings, we approve the amendment to the Plan Kansas sent us on February 23, 2016 (Administrative Record No. KS-628). To implement this decision, we are amending the Federal regulations at 30 CFR part 916 that codify decisions concerning the Kansas Plan. In accordance with the Administrative Procedure Act (5 U.S.C. 500 et seq. ), this rule will take effect 30 days after the date of publication. Section 405 of SMCRA requires that each State with an abandoned mine reclamation program must have an approved State regulatory program pursuant to Section 503 of the Act. Section 503(a) of the Act requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

This rulemaking does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Pursuant to OMB guidance, dated October 12, 1993, the approval of state program amendments is exempted from OMB review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by Section 3(a) of Executive Order 12988. The Department has determined that this Federal Register document meets the criteria of Section 3 of Executive Order 12988, which is intended to ensure that the agency reviews its legislation and proposed regulations to eliminate drafting errors and ambiguity, that the agency write its legislation and regulations to minimize litigation, and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because Section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register document and to changes to the Federal regulations. The review under this Executive Order did not extend to the language of the State AML program or to the Plan amendment that the State of Kansas drafted.

This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132 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.” Instead, this rule approves an amendment to the Kansas Plan submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in Sections 2 and 3 of the Executive Order and with the principles of cooperative federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the Plan amendment to ensure that it is “in accordance with” the requirements of SMCRA and “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rulemaking on federally recognized Tribes and have determined that the rulemaking does not have substantial direct effects on one or more Tribes, on the relationship between the Federal Government and Tribes, or on the distribution of power and responsibilities between the Federal Government and Tribes. The basis for this determination is that our decision is on the Kansas AML program and does not involve Federal regulations involving Indian lands.

Executive Order 13211, dated May 18, 2001, requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rulemaking is exempt from review under Executive Order 12866, and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rulemaking does not require an environmental impact statement because it is deemed a categorical exclusion within the meaning of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). It is documented in the DOI Departmental Manual, 516 DM 13.5(B)(29), that agency decisions on approval of state reclamation plans for abandoned mine lands do not constitute major Federal Actions.

This rulemaking does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rulemaking 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. ). The State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rulemaking would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rulemaking is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rulemaking: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rulemaking.

This rulemaking will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR part 916 is amended as set forth below:

I. Background on the North Dakota Program II. Submission of the Amendment III. OSMRE's Findings IV. Summary and Disposition of Comments V. OSMRE's Decision VI. Procedural Determinations I. Background on the North Dakota Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. On the basis of these criteria, the Secretary of the Interior conditionally approved the North Dakota program effective December 15, 1980. You can find background information on the North Dakota program, including the Secretary's findings, the disposition of comments, and conditions of approval of the North Dakota program in the December 15, 1980 Federal Register (45 FR 82214). You can also find later actions concerning North Dakota's program and program amendments at 30 CFR 934.12, 934.13, 934.15, 943.16, and 934.30.

By letter dated May 19, 2016 (Administrative Record No. ND-PP-01), North Dakota sent OSMRE an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). North Dakota sent the amendment at its own initiative to include numerous rule changes to North Dakota Administrative Code (NDAC) Title 69 Article 5.2 related to Surface Coal Mining And Reclamation Operations based on statutory changes to the North Dakota Century Code (NDCC) Chapters 38-12.1 ( Exploration Data ), and 38-14.1 ( Surface Mining and Reclamation Operations ), and 38-18 ( Surface Owners Protection Act ) that were made by Senate Bill No. 2377 (SB 2377) during North Dakota's 2015 Legislation Session. The statutory changes added a definition of “commercial leonardite” (oxidized lignite) and excluded commercial leonardite from the statutory definitions of “coal” in NDCC sections 38-12.1 and 38-14.1, while ensuring the mining of leonardite remains subject to the same permitting and reclamation requirements as coal. The statutory changes also added the phrases “and commercial leonardite” and “or commercial leonardite” to many other sections of the reclamation statute as appropriate. Similarly, the proposed administrative rule changes primarily consist of adding the phrases “and commercial leonardite” and “or commercial leonardite” immediately after the word “coal” when it is not part of a definition or other phrase that does not otherwise include “commercial leonardite.”

We announced receipt of the proposed amendment in the March 31, 2017, Federal Register (82 FR 16009). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment (Administrative Record Document ID No. OSM-2016-0009-0001). We did not hold a public hearing or meeting, as neither were requested. The public comment period ended on May 1, 2017. OSMRE did not receive any comments.

The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment under SMCRA as described below.

“Leonardite is a coal-like substance, similar in structure and composition to lignitic coal and believed to be derived from lignitic coal by the process of natural oxidation. The higher oxygen content and less compact structure of leonardite, compared with lignite, make it undesirable as a fuel but indicate that it has potential as a source for chemicals and for other nonfuel uses” (Fowkes, W.W., Frost, C.M., “Leonardite: A Lignite Byproduct.” Bureau of Mines, Report of Investigations, 5611, 1960, p. 2). It is also characterized as an oxidized lignite, a slack lignite or lignite waste. The value of leonardite is its content of greater than 8 humic acid. It is used in agriculture as a soil amendment and fertilizer, in the filtration of organics and metals from waste water, in the oil drilling industry as a thinner or buffer for drilling mud, and as a green sands additive for foundry casing.

In 1982, OSMRE issued a decision that leonardite is not “coal” under SMCRA, as defined in 30 CFR 700.5, and thus would not be subject to regulation or oversight under SMCRA when mined as a separate and distinct mineral deposit. OSMRE also explained that leonardite would not be regulated under SMCRA if the extraction of lignite is incidental to the extraction of leonardite or other minerals and the lignite extracted does not exceed 16 2/3 per centum of the minerals removed for purposes of commercial use or sale, under the provisions of section 701(28)(A) of SMCRA (30 U.S.C. 1291). See December 14, 1982, letter from OSMRE to the North Dakota Public Service Commission (Administrative Record No. ND-Q-17). OSMRE took the position that, for SMCRA purposes, leonardite is considered to be an industrial mineral occurring in or near lignite deposits. As long as leonardite is not produced in conjunction with a lignite mining operation and therefore mined as a separate and distinct mineral deposit, it will not be within the purview of SMCRA. OSMRE's position was based upon a technical determination that the material in question, although related to lignite, does not meet the definition of coal, and is similar to the production of montan wax associated with lignite in California. Moreover, 30 CFR part 702 provides an exemption for coal extraction incidental to the extraction of other minerals. The definition of “other minerals” in 30 CFR 702.5(e) expressly provides that the term “means any commercially valuable substance mined for its mineral value, excluding coal, topsoil, waste and fill material.” The legislative history of the incidental extraction exemption in section 701(28)(A) of SMCRA (30 U.S.C. 1291) indicates that Congress intended for the exemption “to exclude operations, such as limestone quarries, where coal is found but is not the mineral being sought.” SEN. REPT. NO. 28, 94th Cong., 1st Sess. 98 (1975). OSMRE reaffirmed its position that leonardite is not coal, for purposes of SMCRA, in a July 22, 1994, Federal Register document (59 FR 37423, 37426).

North Dakota considers leonardite to be an industrial mineral or non-coal resource; however, in its discretion, North Dakota has been permitting and regulating leonardite in much the same way as combustible coal is permitted and regulated. North Dakota has historically regulated leonardite mining in a lawful and environmentally responsible manner without a requirement under SMCRA, but in a manner similar to the way it would be regulated under SMCRA if it were not exempt as a separate and distinct mineral deposit.

While OSMRE does not regulate the mining of leonardite when it occurs as a separate and distinct mineral deposit, North Dakota's statutory definition of “coal” was originally written in a manner to specifically include it in all instances. However, due to a recent issue with the mining and leasing of leonardite as a separate and distinct deposit, North Dakota's Legislature approved statutory changes to exclude commercial leonardite from its definitions of “coal” in NDCC sections 38-12.1 and 38-14.1, while ensuring that the mining of leonardite remains subject to the same permitting and reclamation requirements as coal. In addition, the North Dakota legislature also developed a new definition of “commercial leonardite.” The statutory and regulatory changes were made to ensure that none of the requirements in North Dakota's approved coal regulatory program are otherwise changed. It is also important to note that the narrative accompanying North Dakota's proposed amendment states that SB 2377 includes similar changes to other sections of NDCC that are not part of the State coal regulatory program. North Dakota subsequently clarified that the proposed changes in Chapters 38.11.2 ( Subsurface Exploration Damages ), 38-15 ( Resolution of Conflicts in Subsurface Mineral Production ), and 57-61 ( Coal Severance Tax ) of the NDCC did not require OSMRE approval.

North Dakota proposed minor grammatical, codification, and statutory citation cross-reference changes to the following previously approved rules and statutes due to renumbering. No substantive changes to the text of these regulations were proposed. Because the proposed revisions to these previously approved rules are minor in nature and do not change any fundamental requirements or weaken North Dakota's authority to enforce them, we are approving the changes and find that they are no less effective than the Federal regulations at Title 30 ( Mineral Resources ), Chapter VII (Office of Surface Mining Reclamation and Enforcement, Department of the Interior), Parts 700 through 887. The following specific, minor revisions were made: (1) NDAC 69-05.2-01-02. Definitions. Paragraph 120. “Valid Existing Rights” c. Roads; statutory citation cross-reference change due to renumbering in the NDCC; (2) NDAC 69-05.2-08-10. Permit Applications—Permit area—Soil resources information; statutory citation cross-reference change due to renumbering in the NDCC; (3) NDCC Section 38-14.1-24. Environmental Protection Performance Standards; Subsection 5; deletion of statutory citation cross-reference change due to renumbering; and (4) NDCC 38-14.1-25. Prohibited Mining Practices; Subsections 2. and 3; minor grammatical changes.

North Dakota proposed numerous revisions to its statutes and regulations for which there are no Federal counterpart provisions. The proposed changes resulted from the approval of SB 2377 during North Dakota's 2015 Legislative Session that revised the definition of “coal” in the NDCC and added a new definition of “commercial leonardite.” As previously discussed in this final rule, leonardite is an oxidized form of lignite that is non-combustible, and it is not regulated under SMCRA as “coal” by OSMRE, as long as it is not produced as part of a lignite mining operation—it must be mined as a separate and distinct mineral deposit. North Dakota indicated in an email correspondence accompanying the amendment's informal submission that while it has not considered leonardite to be coal, it has traditionally regulated leonardite mining in much the same manner as surface coal mining and will continue, at its discretion, to do so based on the changes made by SB 2377. The statutory revisions also resulted in a number of related changes to North Dakota's rules in the NDAC, and primarily consist of adding the phrases “and commercial leonardite” and “or commercial leonardite” after the word “coal.”

As a result of SB 2377, North Dakota proposes to exclude “commercial leonardite” from the statutory definition of “coal” in Section 38-12.1-03.1 of the NDCC as it pertains to Exploration Data. The revised definition reads as follows: “ `[c]oal' means a dark-colored, compact, and earthy organic rock with less than forty percent inorganic components, based on dry material, formed by the accumulation and decomposition of plant material. The term includes consolidated lignitic coal in both oxidized and nonoxidized forms, whether or not the material is enriched in radioactive materials. The term does not include commercial leonardite.”

Similarly, North Dakota proposes to exclude “commercial leonardite” from the statutory definition of “coal” in section 38-14.1-02.3 of the NDCC about Surface Mining and Reclamation Operations. The revised definition reads as follows: “ `[c]oal' means a dark-colored, compact, and earthy organic rock with less than forty percent inorganic components, based on dry material, formed by the accumulation and decomposition of plant material. The term includes consolidated lignitic coal in both oxidized and nonoxidized forms, having less than eight thousand three hundred British thermal units per pound [453.59 grams], moist and mineral matter free, whether or not the material is enriched in radioactive materials. The term does not include commercial leonardite.”

The narrative accompanying North Dakota's proposed amendment explained that while OSMRE does not regulate the mining of leonardite when it occurs as a separate and distinct mineral deposit, the North Dakota statutory definition of “coal” was originally written in a manner to specifically include leonardite in all instances. However, due to a recent issue with the mining and leasing of leonardite as a separate and distinct deposit, the North Dakota Legislature approved statutory changes to exclude commercial leonardite from the definition of coal in the NDCC, while ensuring that the mining of leonardite remains subject to the same, but unique, set of permitting and reclamation requirements as coal.

North Dakota's revised definitions provide a distinction between the terms and explicitly clarifies that “coal” does not include “commercial leonardite.” OSMRE does not have any corresponding provisions specifically about “commercial leonardite.” North Dakota's revised definitions of “coal” in its reclamation statute is, therefore, more specific than, but consistent with the definitions of “lignite coal” at section 701(30) of SMCRA, and “coal” at 30 CFR 700.5 of the Federal regulations. The lack of a Federal counterpart does not render North Dakota's proposed amendments less stringent than SMCRA or less effective than OSMRE's regulations. In addition, we also find that the underlying rationale North Dakota provided for justifying a modification of North Dakota's definitions is reasonable for purposes of SMCRA and is consistent with OSMRE's policy about leonardite (see section III.A. above). Accordingly, we are approving the amended definitions. We nevertheless note that OSMRE's approval of North Dakota's amendments for purposes of SMCRA may not be viewed as waiving any property interest the United States may have in leonardite deposits that may be part of the federal coal estate in North Dakota.

As a result of SB 2377, North Dakota proposes a new definition of “commercial leonardite” in both Sections 38-12.1-03.3 and 38-14.1-02.4 of the NDCC. Each definition reads as follows:

The narrative accompanying North Dakota's proposed amendment explained that while OSMRE does not regulate the mining of leonardite when it occurs as a separate and distinct mineral deposit, the North Dakota statutory definition of “coal” was originally written in a manner to specifically include leonardite in all instances. However, due to a recent issue with the mining and leasing of leonardite as a separate and distinct deposit, the North Dakota Legislature approved statutory changes to exclude commercial leonardite from the definition of coal in the NDCC, while ensuring that the mining of leonardite remains subject to the same permitting and reclamation requirements as coal. Moreover, the proposed definition clarifies that “commercial leonardite” will be mined and used solely for purposes other than gasification or combustion to generate electricity.

North Dakota's newly proposed definitions of “commercial leonardite” are reasonable for purposes of SMCRA and are consistent with OSMRE's 1982 determination that leonardite does not comport with the definition of coal under SMCRA and fall within the parameters of section 701(28)(A) of SMCRA and 30 CFR part 702. See Section III.A. above. OSMRE does not have any corresponding provisions about “commercial leonardite,” and the lack of a Federal counterpart definition does not render North Dakota's amended program any less stringent than SMCRA or less effective than OSMRE's regulations. Instead, North Dakota's definition merely provides specificity beyond that contained in SMCRA and the Federal regulations. Moreover, North Dakota's explanation justifying the addition of a “commercial leonardite” definition is reasonable for purposes of SMCRA, and we approve the amended definition. We nevertheless note that OSMRE's approval of North Dakota's amendments for purposes of SMCRA may not be viewed as waiving any property interest the United States may have in leonardite deposits that may be part of the federal coal estate in North Dakota.

Related to its newly proposed definition of “commercial leonardite” in SB 2377, North Dakota also proposes to add the phrases “and commercial leonardite” and “or commercial leonardite” to many provisions of the reclamation statute and immediately after the word “coal” in the rules when it is not part of a definition or other phrase that does not otherwise include “commercial leonardite.”

The narrative accompanying North Dakota's proposed amendment explained that while OSMRE does not regulate the mining of leonardite when it occurs as a separate and distinct mineral deposit, the North Dakota statutory definition of “coal” was originally written in a manner to specifically include leonardite in all instances. However, due to a recent issue with the mining and leasing of leonardite as a separate and distinct deposit, the North Dakota Legislature approved statutory changes to exclude commercial leonardite from the definition of coal in the NDCC, while ensuring that the mining of leonardite remains subject to the same permitting and reclamation requirements as coal.

North Dakota's desire to differentiate between the terms “coal” and “commercial leonardite” in its reclamation law and related rules is reasonable for purposes of SMCRA and is consistent with OSMRE's 1994 determination that leonardite is not “coal” as defined in 30 CFR 700.5, as enumerated in 59 FR 37423 (July 22, 1994), the policy Memorandum of November 3, 1982, and OSMRE correspondence on December 14, 1982. See Section III.A. above. As such, commercial leonardite would not be subject to regulation or oversight under SMCRA when mined as a separate and distinct mineral deposit. Thus, North Dakota's proposed addition of the phrases “and commercial leonardite” and “or commercial leonardite” to its previously approved statutory provisions and regulations identifies a necessary distinction of the terms and provides specificity beyond that contained in SMCRA and the Federal regulations. OSMRE also finds that the underlying rationale North Dakota provided for justifying the addition of these phrases is reasonable for purposes of SMCRA and the lack of Federal counterpart phrases does not render the amendments less stringent than SMCRA or less effective than the Federal regulations. Accordingly, for purposes of SMCRA, we are approving North Dakota's proposed statute and rule changes that add the phrases “and commercial leonardite” and “or commercial leonardite” to several provisions of the reclamation law and immediately after the word “coal” in the statute and regulations when it is not part of a definition or other phrase that doesn't otherwise include “commercial leonardite.”

As a result of SB 2377, North Dakota proposes to revise its existing definition of “Pit” in section 38-14.1-02.23 of the NDCC to read as follows: “Pit” means a tract of land, from which overburden, coal, or commercial leonardite, or any combination of overburden, coal, or commercial leonardite has been or is being removed for the purpose of surface coal mining operations.

North Dakota indicated in an email correspondence accompanying the amendment's informal submission that it has always regulated leonardite mining in the same way as combustible coal, albeit pursuant to a distinct set of statutes and regulations, and will continue to do so based on the changes made by SB 2377. To that end, North Dakota's revised definition of “Pit” adds commercial leonardite to the types of material that can be removed for the purposes of surface coal mining operations.

OSMRE does not have any corresponding provisions defining “pit.” As such, we find that North Dakota's proposed revisions to its definition of “pit” are reasonable for purposes of SMCRA and provide specificity beyond that contained in SMCRA and the Federal regulations, and the lack of a Federal counterpart definition does not render it less stringent than SMCRA nor less effective than OSMRE's implementing regulations. Furthermore, the amendment to the North Dakota programs comports with OSMRE policy on leonardite as enumerated in 59 FR 37423 (July 22, 1994) and the policy Memorandum of November 3, 1982, and OSMRE correspondence on December 14, 1982. See Section III.A. above. Accordingly, we are approving North Dakota's revised definition of “pit” with the understanding that any coal that is removed in combination with leonardite will be incidental to the extraction of leonardite, and not exceed 16 2/3 per centum of the minerals removed for purposes of commercial use or sale under the provisions of Section 701(28)(A) of SMCRA.

We asked for public comments on the amendment, (Administrative Record Document ID No. OSM-2016-0009-0001), but did not receive any.

On May 26, 2016, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA (30 U.S.C. 1253), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the North Dakota Program (Administrative Record No. ND-PP-04). We received comments from three Federal Agencies.

The United States Forest Service (USFS) commented in a June 8, 2016, email response (Administrative Record No. ND-PP-06); the Mine Safety and Health Administration (MSHA) commented in a July 15, 2016, Letter (Administrative Record Document ID No. OSM-2016-0009-0004); and the Bureau of Land Management (BLM) commented in a letter dated July 22, 2016 (Administrative Record No. ND-PP-08).

The USFS responded that it did not have any comments on the proposed amendment about commercial leonardite.

MSHA also stated that it had reviewed the proposed changes in the amendment and had no comments.

The BLM responded that it reviewed the proposed changes to N.D. Admin. Code 69-05.2 and commented that the recent State law change does not affect the Federal reserved coal estate in North Dakota. The BLM further stated that North Dakota's reclassification of leonardite does not affect the terms of a Federal coal lease; a valid and binding contract between the United States and the lessee. OSMRE acknowledges these comments.

Under 30 CFR 732.17(h)(11)(i) and (ii), OSMRE is required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that North Dakota proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on May 26, 2016, pursuant to 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. ND-PP-04). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On May 26, 2016, we requested comments on North Dakota's amendment (Administrative Record No. ND-PP-04). We did not receive comments from the SHPO or ACHP.

Based on the above findings, we are approving North Dakota's amendment that was submitted on May 19, 2016 (Administrative Record No. ND-PP-01).

To implement this decision, we are amending the Federal regulations, at 30 CFR part 934, that codify decisions concerning the North Dakota program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA (30 U.S.C. 1253) requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Other changes implemented through this final rule are administrative in nature and have no takings implications.

Pursuant to Office of Management and Budget (OMB) guidance dated October 12, 1993, the approval of State program amendments are exempted from OMB review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by Section 3(a) of Executive Order 12988. The Department determined that this Federal Register document meets the criteria of Section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard; and promote simplification and burden reduction. Because Section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register document and to changes to the Federal regulations, if applicable. The review under this Executive Order did not extend to the language of the State regulatory program or to the program amendment that the State of North Dakota drafted.

This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132 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.” Instead, this rule approves an amendment to the North Dakota regulatory program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in Sections 2 and 3 of the Executive Order and with the principles of cooperative federalism set forth in SMCRA. See, e.g., 30 U.S.C 1201(f). As such, pursuant to Section 503(a)(1) and (7)(30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure that it is “in accordance with” the requirements of SMCRA and “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Tribes and have determined that the rule does not have substantial direct effects on one or more Tribes, on the relationship between the Federal Government and Tribes, or on the distribution of power and responsibilities between the Federal Government and Tribes. The basis for this determination is that our decision pertains to the North Dakota regulatory program and does not involve Federal regulations involving Tribes or Tribal lands in any way.

Executive Order 13211 of May 18, 2001, which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866, and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C) et seq. ).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR part 934 is amended as set forth below:

The Coast Guard will enforce special local regulations in 33 CFR 100.1101 for the Crystal Pier Outrigger Race regulated areas from 7 a.m. to 5 p.m. on May 11, 2019. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events in the San Diego Captain of the Port Zone, § 100.1101, specifies the location of the regulated areas for the Crystal Pier Outrigger Race which encompasses portions of Mission Bay, the Main Entrance Channel, Sail Bay, Fiesta Bay, South Shore Channel, and waters adjacent to Crown Point Beach Park. Under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and local advertising by the event sponsor.

If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

The Southern Maryland Boat Club of Leonardtown, MD, notified the Coast Guard that from 9 a.m. to 5 p.m. on October 5, 2019, and from 9 a.m. to 5 p.m. on October 6, 2019, it will be conducting the Southern Maryland Boat Club Bash on the Bay in Breton Bay and McIntosh Run at Leonardtown, MD. In response, on March 18, 2019, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulation; Breton Bay, McIntosh Run, Leonardtown, MD” (84 FR 9731). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this power boat demonstration event. During the comment period that ended April 17, 2019, we received no comments.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port Maryland-National Capital Region (COTP) has determined that potential hazards associated with this power boat demonstration event will be a safety concern for anyone intending to operate in or near the demonstration area. The purpose of this rule is to protect event participants, spectators, and transiting vessels on specified waters of Breton Bay and McIntosh Run before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published March 18, 2019. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a special local regulation to be enforced from 8 a.m. to 6 p.m. on October 5, 2019, and from 8 a.m. to 6 p.m. on October 6, 2019. The regulated area will cover all navigable waters Breton Bay and McIntosh Run, immediately adjacent to Leonardtown, MD shoreline, from shoreline to shoreline, within an area bounded to the east by a line drawn along latitude 38°16′43″ N and bounded to the west by a line drawn along longitude 076°38′30″ W, located at Leonardtown, MD. This special local regulation provides additional information about areas within the regulated area, their definitions, and the restrictions that will apply. These areas include a “Course Area”, “Buffer Zone”, “Milling Area” and “Spectator Area”. They lie within an area bounded to the east by a line drawn along latitude 38°16′43″ N and bounded to the west by a line drawn along longitude 076°38′30″ W, located in Breton Bay and McIntosh Run, at Leonardtown, MD. The duration of the special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after this power boat demonstration event, scheduled from 9 a.m. until 5 p.m. on October 5, 2019, and October 6, 2019. Except for participants and vessels already at berth, a vessel or person will be required to get permission from the COTP or PATCOM before entering the regulated area while the rule is being enforced. Vessel operators can request permission to enter and transit through the regulated area by contacting the PATCOM on VHF-FM channel 16. Vessel traffic will be able to safely transit the regulated area once the PATCOM deems it safe to do so. If permission is granted by the COTP or PATCOM, a person or vessel will be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels will be required to operate at a safe speed that minimizes wake while within the regulated area. Official Patrol vessels will direct spectator vessels while within the regulated area. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign. Vessels will be prohibited from loitering within the navigable channel. Only participant vessels and Official Patrols will be allowed to enter the course area and milling area. A person or vessel not registered with the event sponsor as a participant or assigned as Official Patrols will be considered a spectator. Spectators are only allowed inside the regulated area if they remain within a designated spectator area. All spectator vessels must be anchored or operate at a No Wake Speed within a designated spectator area. Spectators must contact the PATCOM to request permission to pass through the regulated area. If permission is granted, spectators must pass directly through the regulated area at safe speed and without loitering.

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, duration and time of year of the power boat demonstration event, which will impact a small designated area of Breton Bay and McIntosh Run for 20 total enforcement hours. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the special local regulation. Moreover, the rule will allow vessels to seek permission to enter the regulated area, and vessel traffic will be able to safely transit the regulated area once the COTP or PATCOM deems it safe to do so.

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 received no comments from the Small Business Administration on this rulemaking. 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 regulated area 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.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States. The temporary regulated area will be enforced for 20 hours during the power boat demonstration event. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Memorandum For Record for Categorically Excluded Actions supporting this determination is available in the docket where indicated under ADDRESSES .

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

Effective May 9, 2019, in rule document 2019-06883 at 84 FR 14242 in the issue of April 9, 2019, on page 14255, in the third column, amendatory instruction 2 is corrected to read as follows:

I. Background

On March 14, 2018 (83 FR 11155), EPA published a notice of proposed rulemaking (NPRM) for a SIP revision from the Commonwealth of Pennsylvania. In the NPRM, EPA proposed to partially conditionally approve and partially approve a Pennsylvania RACT SIP revision for the 1997 and 2008 8-hour ozone NAAQS. The formal SIP revision was submitted by the Pennsylvania Department of Environmental Protection (PADEP) on May 16, 2016.

RACT requirements apply to any ozone nonattainment areas classified as Moderate or higher (Serious, Severe or Extreme) under CAA sections 182(b)(2) and 182(f). Section 184(b)(1)(B) of the CAA also applies RACT to all areas located within ozone transport regions established pursuant to section 184 of the CAA. The entire Commonwealth of Pennsylvania is part of the Ozone Transport Region (OTR) established under section 184 of the CAA and thus is subject statewide to the RACT requirements of CAA sections 182(b)(2) and 182(f), pursuant to section 184(b). The May 16, 2016 SIP submittal intends to satisfy sections 182(b)(2)(C), 182(f), and 184 of the CAA for both the 1997 and 2008 8-hour ozone NAAQS for all major nitrogen oxides (NOx) and volatile organic compound (VOC) sources in Pennsylvania not subject to control technique guidelines (CTG) ( i.e., VOC non-CTG sources), except glass melting furnaces, ethylene production plants, surface active agents manufacturing, and mobile equipment repair and refinishing.

The May 16, 2016 Pennsylvania SIP revision includes the Pennsylvania regulations in 25 Pa. Code sections 129.96-129.100 titled “Additional RACT Requirements for Major Sources of NOx and VOCs” (the RACT II Rule) and amendments to 25 Pa. Code section 121.1, including related definitions, to be incorporated into the Pennsylvania SIP. These regulatory amendments were adopted by PADEP on April 23, 2016 and effective on the same date upon publication in the Pennsylvania Bulletin. The May 16, 2016 SIP revision was submitted to satisfy certain CAA RACT requirements under both the 1997 and 2008 8-hour ozone NAAQS for specific source categories.

The RACT II Rule applies statewide to existing major NO X and/or VOC sources in Pennsylvania, except those subject to other Pennsylvania regulations, as specified in 25 Pa. Code 129.96(a)-(b). 1 The RACT II Rule exempts all VOC source categories for which PADEP had adopted CTG RACT regulations at the time the RACT II Rule was finalized, as well as three non-CTG VOC source categories: (1) Ethylene production plants, (2) surface active agents manufacturing, and (3) mobile equipment repair and refinishing; and glass melting furnaces as major NOx sources. In the NPRM, EPA proposed to find that the applicability requirements of 25 Pa. Code section 129.96 are necessary to implement the RACT requirements within the RACT II Rule.

The RACT II Rule requirements apply to any emissions unit or process at an affected major source having a potential to emit (PTE) of 1 ton per year (TPY) or more of NO X and/or VOC. In the context of the rule, existing major sources are those already in existence as of July 20, 2012 or any major sources installed or modified after July 20, 2012, which became a major source before January 1, 2017. The RACT II Rule establishes a compliance date of January 1, 2017, as provided in paragraphs in 129.97(a) and 129.99(d)(4), with some exceptions.

Section 129.97 of the RACT II Rule establishes NO X and VOC emission limits or operational requirements on certain types of emissions units in the affected major sources which Pennsylvania presumes to meet RACT, thus referred to in the rule as presumptive RACT.

Affected emissions units include combustion units, process heaters, combustion turbines, stationary internal combustion engines, cement kilns, municipal waste combustors, and municipal solid waste landfills. In the NPRM, EPA proposed to find that the presumptive requirements of 25 Pa. Code section 129.97 represent RACT for the NO X and VOC source categories affected by these provisions.

Affected major sources subject to the presumptive requirements of 25 Pa. Code section 129.97 that cannot comply with the applicable presumptive NO X limits for any given emissions units, may choose one of two alternative compliance options to establish RACT. Such sources may either propose an alternative NO X emissions limit based on averaging NO X emissions from multiple sources, under 25 Pa. Code section 129.98, or else propose an alternative source-specific emission NO X or VOC limit or RACT requirement, under 25 Pa. Code section 129.99. In the NPRM, EPA proposed to find that 25 Pa. Code section 129.98 is not sufficient to address RACT for sources seeking averaging, without the specific NO X averaging provisions for any affected sources being submitted to EPA for SIP approval. Also, in the NPRM, EPA proposed to find that 25 Pa. Code section 129.99 is not approvable by itself without further information on specific sources, along with the source-specific limits being submitted to EPA for SIP approval. By letter dated September 22, 2017, PADEP committed to address the problems with sections 129.98 and 129.99, as later identified in the NPRM, by submitting any facility-specific terms and conditions regarding emissions averaging to EPA as a source specific SIP revision and submitting all source-specific RACT determinations under section 129.99 to EPA as SIP revisions within 12 months of EPA's final approval. Therefore, EPA proposed to conditionally approve the provisions in 25 Pa. Code sections 129.98 and 129.99.

25 Pa. Code section 129.100 of the RACT II Rule establishes compliance demonstration and recordkeeping requirements for affected sources. Specific monitoring and testing requirements are established for sources complying with presumptive RACT requirements under section 129.97. Recordkeeping requirements are established under section 129.100(d) for any affected sources under the RACT II Rule. In the NPRM, EPA proposed to find that the compliance demonstration requirements of 25 Pa. Code section 129.100 are necessary to implement the RACT requirements of section 129.97. Also, additional compliance demonstration requirements for NO X averaging or source-specific RACT alternative limits will be established by PADEP or the local permitting agency on a source-specific basis, in accordance with sections 129.98 and 129.99, respectively, and consistent with section 129.100.

Any definitions related to the RACT II Rule are codified in 25 Pa. Code section 121.1. The definitional changes in 25 Pa. Code section 121.1 are consistent with requirements in the RACT II Rule and thus we proposed to approve under CAA section 110. EPA proposed that the amended provisions in 25 Pa. Code section 121.1 and the adopted provisions in 25 Pa. Code sections 129.96, 129.97, 129.100 of the RACT II Rule are approvable, in accordance with requirements in CAA sections 110, 172, 182, and 184, and meet RACT for the affected major sources of non-CTG VOC and major sources of NO X for both the 1997 and 2008 8-hour ozone NAAQS. EPA proposed conditional approval of 25 Pa. Code sections 129.98 and 129.99 for the reasons stated in this section and in the NPRM in more detail.

During the comment period, EPA received relevant comments from eight separate entities: The Connecticut Department of Energy and Environmental Protection (CTDEEP), Friends of Pennsylvania (FOP), GenOn Energy, Inc. (GenOn), the Maryland Department of Environment (MDE), the State of New Jersey Department of Environmental Protection (NJDEP), the New York State Department of Environmental Conservation (NYDEC), Olympus Power, LLC (Olympus Power), and Sierra Club (SC). EPA also received twelve irrelevant or non-adverse comments from anonymous sources which will not be addressed here. The relevant comments and EPA's response are discussed in this section of this rulemaking action.

Comment 1: Several commenters argue that PADEP's presumptive limits for certain source categories do not represent RACT. The commenters state that more stringent NO X RACT limits have been adopted by other states for coal-fired utility boilers, such as in New York and Connecticut's rules. Commenters also suggest there are more stringent limits adopted for combustion turbines and stationary internal combustion turbines.

Response 1: EPA disagrees with the commenters that PADEP's presumptive NO X RACT limits are not adequate as RACT. In making RACT determinations, EPA has encouraged states to rely on current EPA guidance, including CTGs and Alternative Control Techniques (ACTs),  2 and any other information available at the time of development of the RACT SIP. See 78 FR 34178 at 34192. States have the discretion to adopt more stringent limits as RACT for similar sources when considering what emissions reductions of NO X and VOC are necessary for timely attainment of the ozone NAAQS ( i.e., beyond RACT reductions).

Based on existing EPA guidance, EPA determined that the RACT II Rule's presumptive requirements generally represent emission limitations achievable through implementation of reasonably available control technologies considering technical and economic feasibility. In addition, EPA reviewed NO X emissions limits in effect in adjacent OTR states for certain source categories addressed by Pennsylvania's rule for comparison purposes. EPA concluded that PADEP's presumptive limits are comparable to other states' limits, denoting that while some states may have adopted more stringent limits for similar categories, other states have also adopted less stringent controls. However, nothing in the CAA requires Pennsylvania's RACT limits to be as stringent as neighboring states' limits.

Some states may have adopted more stringent controls for similar source categories given needs for ozone reduction to achieve attainment within their particular state or to go “beyond RACT” for the state's internal reasons. For instance, it is also worth noting that Connecticut's 22a-174-22e rule established NO X presumptive limits that would become effective in two phases on June 1, 2018 for 2008 RACT requirements and June 1, 2022; and EPA only considered the June 1, 2018 control requirements under this regulation to be adequate and needed to meet 2008 ozone RACT. 3 EPA continues to find that Pennsylvania's presumptive NO X limits are reasonable for the source categories evaluated for the reasons described in detail in our NPRM and TSD. EPA's determination considered for each source category the emission rates achieved by different NO X control technologies as discussed in the guidance documents and summarized in the TSD, and limits that other states have adopted to meet RACT.

In addition, PADEP received similar comments from Connecticut and New Jersey on its proposed RACT II Rule, asserting that each state had adopted more stringent presumptive NO X limits for coal-fired boilers than Pennsylvania. In its response, PADEP asserted that it “reviewed and considered RACT regulations from various states when evaluating what constitutes reasonably available control technology for the types of sources affected by the final rulemaking.” PADEP stated that “[s]ource categories in Pennsylvania are diverse, with numerous sources having varying characteristics differing from those of the other Mid-Atlantic States,” and that it “evaluated its source categories and determined the presumptive RACT requirements to be adequate.” Further, after considering comments received, PADEP determined that the NO X limits for coal-fired boilers with a rated heat input equal to or greater than 250 million British Thermal Units (MMBTU) per hour (MMBTU/hr) could be revised to reflect more stringent RACT. PADEP revised the presumptive NO X limit from coal-fired boilers that are circulating fluidized bed combustion units (CFBs) from 0.20 pounds per MMBTU (lbs/MMBTU) to 0.16 lbs/MMBTU. PADEP also adopted additional presumptive RACT requirements for coal-fired boilers with selective non-catalytic reduction (SNCR) and selective catalytic reduction (SCR), established in subparagraph 129.97(g)(1)(vii) and 129.97(g)(1)(viii). See PADEP's Response to Comments Document, Comments #61 and #75. 4 Thus, EPA believes that PADEP considered and addressed technically and economically feasible rates for RACT as well as considered rates established for RACT in neighboring states in its development of the presumptive limits for the RACT II Rule.

EPA recognizes that other states have adopted more stringent RACT standards for source categories similar to those in Pennsylvania. However, that fact alone is not sufficient to conclude that PADEP's presumptive limits are not acceptable or reasonable as RACT. States have the discretion to adopt more stringent limits as RACT for similar sources when considering the emissions reductions of NO X and VOC necessary for timely attainment of the ozone NAAQS, or to adopt “beyond RACT” limits for their own internal reasons. RACT requirements for ozone do not require Pennsylvania to adopt the same level of control as the most stringent state in the OTR or country; what is instead required is emission limitations reflecting what is the lowest achievable rate considering technological and economic feasibility. 5 Each state should set RACT limits considering what it determines reasonable for its sources. In general, the actual cost, emission reduction, and cost-effectiveness levels that an individual source will experience in meeting the RACT requirements will vary from unit to unit and from area to area. These factors will differ from unit to unit because the sources themselves vary in age, condition, and size, among other considerations and, in many cases, will differ from state to state. 6 EPA believes that PADEP determined presumptive limits based on its evaluation of technical and economic feasibility of controls and determination of what is reasonable for each source category. 7

Comment 2: One commenter argues that PADEP's presumptive limits for municipal waste combustors (MWCs) do not represent RACT for several reasons. The commenter argues that for mass burn waterwall type MWCs using SNCR as a control, states have adopted more stringent NO X limits of 150 parts per million by volume, dry basis (ppmvd). Also, the commenter states that neither PADEP nor EPA considered the NO X RACT limit of 150 ppmvd that was adopted by NJDEP. The commenter argues that Pennsylvania should have established NO X presumptive limits for MWCs for each type of combustor technology, which is how states and EPA typically regulate MWCs considering that NO X emissions vary by each technology.

Response 2: EPA disagrees with commenter's assertion that PADEP's presumptive NO X RACT limit of 180 ppmvd for MWC is not adequate as RACT. PADEP's NOx presumptive limit of 180 ppmvd at 7 percent (%) oxygen (O 2 ) for MWC is reasonable as RACT, based on NO X emission rates established by other states' regulations and in EPA's New Source Performance Standards (NSPS) at 40 CFR part 60, subparts Cb and Eb. In the NSPS, EPA has established NO X limits for MWCs ranging from 150 to 250 ppmvd at 7% O 2 after considering the best system of emissions reduction (BSER). Also, as noted in the TSD, OTR states have adopted NO X limits for MWCs ranging from 120 to 372 ppmvd at 7% O 2 , with different averaging periods. PADEP's presumptive RACT limit for MWCs is comparable to EPA's most stringent NO X limit for MWCs in the NSPS and is comparable to the most stringent limits adopted by other states given that factual scenarios regarding technical and economic feasibility for controls for MWCs can vary amongst states. EPA has no reason to believe that Pennsylvania did not consider the existing controls at the MWCs, such as SNCR, when determining RACT. For large MWCs with SNCR, other states have established average daily NO X limits as high as 250 ppmvd; thus, Pennsylvania's limit of 180 ppmvd is more stringent for sources with SNCR than some states. Finally, EPA does not believe that MWCs must be exclusively regulated by type of combustor. In EPA's MWC regulations for NO X emission limits, EPA set limits according to the type of combustor and also set a single NO X limit that applies regardless of combustor type. See 40 CFR part 60, subparts Cb and Eb.

In determining RACT, states should also consider any information received during the public comments. EPA reviewed the comments received by PADEP during the state's public comment period on the RACT II Rule. PADEP initially proposed that MWCs meet RACT by complying with the limits EPA established in the NSPS at 40 CFR part 60, subpart Cb or Subpart Eb, which range from 180 to 250 ppmvd at 7% O 2 . In response to comments, PADEP re-evaluated NO X emissions data from its MWCs and concluded that a NO X emission limit of 180 ppmvd at 7% O 2 , the lowest limit in the NSPS, was more representative of actual emissions achieved across the fleet of MWCs in Pennsylvania, and therefore revised the final rule to adopt this NO X limit as presumptive RACT. See PADEP's Response to Comments Document, Docket item #0004, Comments #121. Thus, EPA believes Pennsylvania considered for MWCs technical and economic feasibility in setting lowest achievable emission rate for MWCs by considering what was achieved by MWCs within the Commonwealth and thus EPA finds the presumptive RACT rate reasonable.

Finally, while EPA recognizes that other states have adopted more stringent RACT standards for MWCs, that fact alone is not sufficient to conclude that PADEP's presumptive limits are not acceptable or reasonable as RACT as previously discussed. States have the discretion to adopt more stringent limits as RACT for similar sources considering the level of emissions reductions of NO X and VOC necessary to timely attain the ozone NAAQS ( i.e., beyond RACT reductions). Requiring Pennsylvania to adopt the same level of control as the most stringent state is not always necessary to satisfy the statutory mandate for RACT. EPA continues to find that Pennsylvania's presumptive NO X limit for MWCs is reasonable and represents RACT.

Comment 3: Several commenters state that coal-fired boilers with SCR in Pennsylvania are capable of achieving lower rates than 0.12 lbs/MMBTU. One commenter recommends that EPA disapprove the presumptive limit for coal-fired boilers with SCR and impose a limit of 0.09 lbs/MMBTU, while another commenter proposes a limit of 0.07 lbs/MMBTU. Both commenters reference NO X actual emissions data included as part of the comments and assert that NO X emission rates lower than 0.12 lbs/MMBTU have been historically achieved by units in Pennsylvania. One commenter included NO X emissions data that represents the “best performing ozone season emissions rate” (in lbs/MMBTU) for 13 coal-fired boilers in Pennsylvania equipped with SCR during 2005 to 2017. The second commenter provided NO X emissions data for monthly average NO X rates lower than 0.017 lbs/MMBTU during 2005 to 2017 for 10 coal-fired boilers in Pennsylvania equipped with SCR.

Response 3: EPA disagrees that a more stringent NO X RACT limit than 0.12 lbs/MMBTU is needed for Pennsylvania to meet RACT for coal-fired boilers with SCR, based on the data provided and absent any other technical justification to support a more stringent limit. The NO X emissions data sets provided by the commenter are not sufficient to conclude that a lower NO X emissions rate, such as 0.07 or 0.09 lbs/MMBTU, is consistently achievable or sustainable to make Pennsylvania's conclusions unreasonable. RACT involves an evaluation of what is technically and economically feasible for sources; thus, consideration of whether emission limits are consistently achievable with controls that are cost effective and under consideration is a reasonable consideration for Pennsylvania. EPA acknowledges that historically, some individual coal-fired electric generating units (EGUs) with SCR in Pennsylvania have been able to achieve lower rates than 0.12 lbs/MMBTU as indicated in the commenters' data. However, in evaluating fleet-wide NO X emissions and determining an adequate achievable NO X RACT emissions limit for all units in Pennsylvania, the lowest historical rate at any particular unit at a specific point in time may not be a rate that can be consistently achieved by other units. EPA does not require RACT limits to be the lowest achievable emissions rate, but the lowest achievable emission rates considering technical and economical limitations.

In previous RACT guidance to states, EPA estimated that coal-fired boilers with SCR are expected to generate NO X emissions rates ranging from 0.10 to 0.25 lbs/MMBTU, depending on the type of boiler and whether the boiler is equipped or not with additional combustion controls. 8 Also, as part of the 2016 Cross-State Air Pollution Rule (CSAPR) Update, EPA determined that 0.10 lbs/MMBTU is an achievable NO X emissions rate during ozone season for coal-fired electric generating units (EGUs) with SCR. 9 As part of the CSAPR Update, EPA analyzed NO X reduction potential and corresponding NO X ozone season emissions budgets at utility boilers ( i.e., EGUs) based on NO X emissions rates that can be consistently achieved for the units with SCRs that were not currently being optimized or which were currently idled at the time of EPA's analysis ( i.e., 2016). To determine the NO X emissions rate that could be consistently achieved, EPA evaluated coal-fired NO X ozone season emission data for EGUs from 2009 through 2015 and calculated an average NO X ozone season emissions rate across the fleet of coal-fired EGUs with SCR for each of these seven years. The 0.1 rate represents the third lowest fleet-wide average coal-fired EGU NO X ozone season emissions rate for coal-fired EGUs with SCR. It is worth noting that EPA considered and rejected the lowest or second lowest ozone season NO X rates, because it determined that these rates may reflect new SCR systems and/or existing SCR systems with all new components ( e.g., due to simultaneous replacement of multiple layers of catalyst rather than routine replacement of a single layer). 10 Therefore, reliance alone on the lowest historical emissions rate to evaluate the feasibility and cost effectiveness of controls would likely overestimate the emissions reductions and, consequently, underestimate the costs to restart idled or unoptimized controls because some EGUs have significantly curtailed their hours of operation, for various reasons, since the time when the low levels of NO X emissions were achieved. Furthermore, SCR controls can become less effective at NO X removal as they age and may not be as efficient as when first installed, so the lowest historically achieved rate is not always technically feasible. It is not unreasonable for Pennsylvania to have considered a slightly different NO X emission rate for RACT considering such technological and economic feasibility issues than what EPA has deemed achievable as an ozone season-only NO X rate (0.10 lbs/MMBTU), when averaging over a shorter time period such as 30 days.

Even when considering lowest achievable rates, the data sets provided by the commenters are not sufficient to support the assertion that a NO X rate of 0.07 or 0.09 lbs/MMBTU, respectively, or in fact any other rate lower than 0.12 lbs/MMBTU, is consistently achievable in Pennsylvania. The first commenter, the Sierra Club, only considered data for the limited instances where the lowest NO X rates have been achieved and did not consider any other periods during the 2003 to 2012 timeframe. 11 For example, in Table 2 of Sierra Club's comments, the commenter presented the data from multiple units at multiple facilities on a monthly basis. The commenter then appeared to sort the data in terms of average NO X rate from the lowest rate to the highest rate but limited the data to those units and months where the average NO X rate was less than or equal to 0.07 lbs/MMBTU. By doing this, the commenter does not take into account the months where a unit is operating at a rate above 0.07 lbs/MMBTU skewing the data in a way that tends to show these units are able to comply with a lower emissions limit at all times. Furthermore, by sorting the data in this way, the commenter obscures important information such as which facilities and units were evaluated, and the range of years or months evaluated; thus, the incomplete data set submitted by the commenter was not sufficient for EPA to determine that Pennsylvania's RACT is not permissibly or reasonably set at 0.12 lb/MMBtu.

The second commenter, the MDE, provided the best performing ozone season NO X emissions rates during 2005 to 2017, but only considered emissions rates of certain facilities and certain units that were specifically lower than 0.09 lbs/MMBTU. The NO X rates provided by the commenter were ozone season averages, not 30-day rolling averages. PADEP's coal-fired emission limit of 0.12 lbs/MMBTU is required on a 30-day rolling basis and is applicable on a continuous basis throughout the year (not just during ozone season). Therefore, the data provided by MDE is not comparable to the form of Pennsylvania's RACT emission limitation.

Finally, states must establish presumptive NO X emission limits for RACT that are reasonably achievable for the entire fleet of units within any source category. Both commenters only included data below certain thresholds, so only some of the data from these units was shown, making it hard to judge the overall representativeness of the data. In its SIP revision, PADEP confirmed that the presumptive RACT NO X limits for coal-fired boilers “are achievable and sustainable during the expected life of the affected unit using technologies that are both technically and economically feasible.”  12 Absent any conflicting technical information, EPA continues to believe that a NO X emissions rate of 0.12 lbs/MMBTU on a 30-day rolling average, year-round, is reasonable and consistently achievable by Pennsylvania's coal-fired boilers with SCR, representative of SCR operation, and adequate for representing RACT for these units based on Pennsylvania's analysis.

Comment 4: One commenter contends that EPA cannot approve the provision in 25 Pa Code section 129.97(g)(1)(viii) applicable to coal-fired boilers with SCR, because there is no adequate basis for the minimum SCR operating temperature and the minimum operating temperature of 600 °F is contradicted by facts concerning SCR operation and inlet temperature. The commenter argues that neither EPA nor Pennsylvania have justified that a temperature-based exemption is necessary or that 600 °F is the correct threshold for such exception. The commenter states that EPA did not mention this “loophole” in its proposal. The commenter also argues that EPA's allowance of a temperature exemption is in direct contrast to prior actions by EPA, in which EPA recognized that a minimum SCR operating temperature varies significantly between EGUs and required utilities to supply more technical data to support any accommodation of this parameter. See 81 FR 21735 (April 13, 2016).

Response 4: EPA recognizes that neither Pennsylvania nor EPA explained in detail why the minimum SCR temperature exemption in 127.97(g)(1)(viii) for coal-fired boilers is adequate for RACT. However, EPA disagrees that our determination to accept this exemption as part of Pennsylvania's presumptive limits for coal-fired combustion units is arbitrary or capricious. As proposed in the NPRM, EPA finds that Pennsylvania's determination to limit the application of the SCR limit when inlet temperature is less than 600 °F is consistent with the optimum operating temperature of SCRs used generally by coal-fired boilers and reasonable as part of the presumptive RACT limitation. The temperature at the inlet to the SCR provides a good indication of catalytic reduction performance, because it indicates that the gas stream is at sufficient temperature to initiate reduction of NO X on the catalyst. EPA finds that the NO X reduction reaction of an SCR is effective only within a given temperature range. If the inlet temperature ( i.e., of the process gas stream) is too high, it may cause NO X generation in the SCR rather than NO X reductions. ( Reference: https://www3.epa.gov/ttnchie1/mkb/documents/B_15a.pdf ). The use of a catalyst in the SCR process lowers the temperature range required to maximize the NO X reduction reaction. At temperatures below the specified range, the reaction kinetics decrease, and ammonia passes through the SCR (ammonia slip), but there is little effect on nitrous oxide (N 2 O) formation. At temperatures above the specified range, nitrous oxide (N 2 O) formation increases and catalyst sintering and deactivation occurs, but little ammonia slip occurs. It has been proven that for the majority of commercial catalysts (metal oxides), the typical operating temperatures for the SCR process range from 480 °F to 800 °F (250-430 °C). The rate of NO X removal increases with temperature up to a maximum between 700 °F and 750 °F (370-400 °C). ( Reference: https://www.epa.gov/sites/production/files/2017-12/documents/scrcostmanualchapter7thedition_2016revisions2017.pdf ; see Reference [46].)

In addition, EPA noted in its response to comments on the May 2016 updates to the Cost Control Manual for the SCR chapter that, while the temperature of 480 ° to 800 °F is a fairly wide range and is dependent on catalyst type, this range is not reflective of general optimum range. EPA concluded that 480 ° to 800 °F is an “operating” range and that 700 ° to 750 °F was an optimum temperature range. 13 It has been proven that the NO X removal efficiency decreases more drastically when temperatures are lower than the optimal operating range; at 600 °F, the expected NO X removal efficiency of an SCR has already decreased to 77% and at 550 °F the removal efficiency drops to 63%. Therefore, even if Pennsylvania were to lower the temperature at which a SCR was to begin operating by 50 °F, the reductions achieved would be only slightly better than those achieved with Low NO X burners with Overfired Air (40-60% reduction) which is already required to be installed by the existing Pennsylvania SIP. Thus, EPA finds Pennsylvania's selection of 600 °F requirement for coal-fired boiler RACT reasonable based on noted efficiencies with SCRs at such temperatures and based on technical and economic considerations from use of additional catalyst to achieve diminishing NO X removal.

In the NPRM, EPA recognized that the SCR limit is not applicable at all times, given the temperature condition provided. Nevertheless, EPA disagrees that this qualifies as a “loophole” of the regulation. As discussed in the TSD in support of our proposed action, any affected boiler with SCR or SNCR is also required to comply at all times with the boiler type limits in section 129.97(g)(1)(vi), which in practice would be applicable in any instances where the SCR or SNCR is not in operation. For instance, a coal-fired boiler that has an SCR in place would be subject in practice to two sets of RACT NO X limits: (1) The SCR limit of 0.12 lbs/MMBTU when the inlet temperature to the control is equal to or greater than 600 °F; and (2) the boiler type limit (0.16, 0.35, or 0.40 lbs/MMBTU depending on type of boiler) at any other times when the inlet temperature to the control is less than 600 °F. EPA finds that this control approach is practical and acceptable to satisfy RACT for boilers with SCR and SNCR, as it ensures applicability of RACT year-round, while requiring the lowest NO X emissions limit considering the technical feasibility of existing NO X controls. As stated in our TSD for the NPRM, in our engineering judgment and based upon acknowledged technical limitations of SCR and SNCR, EPA agrees with PADEP's determination that SCR or SNCR cannot result in lower NO X emission rates at those lower operating temperatures. See page 21 of the TSD.

Comment 5: The commenter claims that section 129.97(g)(1)(viii) of the RACT II Rule has allowed Pennsylvania utilities since 2017 to use the minimum temperature-exemption for coal-fired boilers with SCR to intentionally avoid operating controls at night. The commenter provides NO X emissions and heat input rating from one particular EGU coal-fired boiler, Cheswick, and alleges that it depicts a typical practice and typical emission rate from the coal-fired EGU boilers with SCR in Pennsylvania subject to the RACT II Rule.

Response 5: As discussed in the prior response, the RACT II Rule's temperature exception in section 129.97(g)(1)(viii) does not allow coal-fired boilers equipped with SCR to avoid all NO X controls. Although any coal-fired boiler with SCR is not subject to the 0.12 lbs/MMBTU RACT emission limitation when inlet temperature is below 600 °F, these boilers must still comply at all times with the presumptive limits in section 129.97(g)(1)(vi), which vary based upon the furnace configuration or boiler type.

The Cheswick unit is a tangentially coal-fired boiler equipped with low NO X burners (LNB) with separated overfire air (SOFA) and SCR. As such, the unit is required to comply with two presumptive NO X limits under the RACT II Rule: 0.12 lbs/MMBTU when inlet temperature to the SCR is above 600 °F, and 0.35 lbs/MMBTU at all other times. See section 129.97(g)(1)(vii) and (vi)(B). EPA notes that a reduction of heat input at night for Cheswick is not unusual for a coal-fired EGU boiler as the reduction in heat input can be driven by lower demand for electricity; thus reduced heat input could lead to temperatures below 600 °F and below what is optimal for SCR operation.

Comment 6: One commenter claims Pennsylvania's rule does not require a reporting requirement for the exhaust temperature of units equipped with SCR, and that without this information the public will not be able to know whether or not such units are complying with the applicable emission limits. The commenter claims the lack of this reporting requirement renders calculating compliance with the 30-day average difficult and, overall, violates the CAA's requirement that RACT be enforceable.

Response 6: EPA disagrees with the commenter. Although PADEP's RACT II Rule does not establish RACT-specific reporting requirements for each source category, Pennsylvania has the generic recordkeeping requirements at section 129.100(d) requiring that a source subject to sections 129.96-129.99 “keep records to demonstrate compliance with § § 129.96-129.99 that include sufficient data and calculations to demonstrate that the requirements of §§ 129.96-129.99 are met.” See 25 Pa Code 129.100(d). EPA finds that the compliance demonstration requirements of 129.100(d) require sources to keep sufficient records to demonstrate meeting RACT limits. PADEP may establish more specific requirements for individual sources, as needed, through the operating permit process.

Comment 7: One commenter argues that EPA should disapprove the PA RACT II Rule's provision in section 129.97(g)(1)(ix) concerning coal-fired boilers with SNCR, based on the inadequate information provided as part of the “illegal and improperly submitted” supplemental documentation. The commenter asserts that PADEP's supplemental documentation does not justify why PADEP did not impose an emission limitation for coal-fired boilers in Pennsylvania, but simply identifies the six Circulating Fluidized Bed (CFB) boilers with SNCR in Pennsylvania subject to this requirement. Commenter asserts that in an attempt to support that the 0.16 lbs/MMBTU presumptive limit for any coal-fired CFB boiler is also adequate for coal-fired boilers with SNCR, PADEP argues that CFB boilers without SCR have been able to achieve lower NO X emission reductions than CFBs with SNCR. Commenter also points to several EPA guidance documents supporting that additional reductions can be achieved at EGU boilers through operation of SNCR.

Response 7: EPA disagrees with the commenter regarding the RACT emission limitation for coal-fired boilers with SNCR. As explained in the NPRM and TSD, such boilers are subject to emission limitations (including a numeric limitation and a requirement to operate SNCR) that Pennsylvania set considering technical and economic feasibility. Thus, EPA finds these emission limitations reasonable as explained in more detail in the NPRM and TSD. Sufficient information is available to support this conclusion—all coal-fired boilers with SNCR are required to comply with both the numeric emission limitations of section 129.97(g)(1)(vi) and the work practice standard under 129.97(g)(1)(ix). In addition, Pennsylvania considered limits from other states and the current limits in place at these sources. Furthermore, EPA does not agree that the supplemental September 2017 submittal from PADEP is illegal or was improperly submitted. PADEP's September 26, 2017 submittal included Pennsylvania's commitment to submit any facility-wide or system-wide NO X averaging plans to EPA for SIP approval and to submit to EPA for SIP approval any permits issued under section 129.99 to support the conditional approval of 129.98 and 129.99 for the SIP. This commitment in Pennsylvania's supplement meets requirements for a commitment under CAA section 110(k)(4). The commenter has not provided sufficient information as to why Pennsylvania's supplemental information is “illegal.” See Response to Comment #34. Nevertheless, EPA has sufficient information in the TSD and in the docket generally to support our conclusion that Pennsylvania's RACT II Rule is reasonable including the RACT limitation for coal-fired boilers with SNCR as the Rule includes a work practice requirement as an emission limitation (as the Rule requires operation of the SNCR) as well as a numeric restriction on emissions as an emission limitation in section 129.97(g)(1)(vi). See also Response to Comment #8.

Comment 8: Commenters allege that EPA cannot approve the presumptive provision contained in 129.97(g)(1)(ix) for coal-fired boilers with SNCR because the provision lacks a numeric emission limit. One commenter added the rule also failed to have a requirement to optimize the existing SNCR control. Another commenter argued that Pennsylvania should have been able to set a numeric emission limit because such limits exist for other similar units with SNCR in place and a numeric emission limit is required to meet EPA's definition of “RACT.”

Response 8: RACT generally requires the establishment of “emission limitations.” 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. 14 However, EPA disagrees that an emission limitation is required to be numeric to meet RACT for all source categories. CAA section 302(k) defines an emissions limitation as “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.” The requirement of 25 Pa. Code 129.97(g)(1)(ix), to operate the system ( i.e., coal-fired boilers with SNCR) with the injection of reagents, qualifies as a work practice standard or an operational requirement; thus, the provision meets the definition of “emission limitation” under CAA section 307. Thus, Pennsylvania has established a RACT emission limitation for coal-fired boilers with SNCR. In addition, these boilers are also subject to boiler type presumptive RACT limits (0.16, 0.35, 0.40, or 0.45 lbs/MMBTU) in 129.97(g)(v) and (vi). Thus, coal-fired units are subject to both numerical limits and work practice standards which reasonably establish RACT as an “emission limitation” considering technical and economic feasibility. EPA also disagrees with the commenter's assertion that EPA should require language to ensure optimum operation of SNCR controls because this is not required for RACT-level control. EGUs are required to optimize emission control for NOx (including SCR and SNCR) for interstate ozone transport requirements for the 2008 ozone NAAQS. See 83 FR 50444 (October 5, 2018) (Response to Clean Air Act Section 126(b) Petitions from Delaware and Maryland) (stating EGU sources would have already optimized emission controls like SCR and SNCR when EPA finalized the CSAPR Update in 2016 to address interstate transport of ozone (81 FR 745504 (October 26, 2016)).

Comment 9: The commenter asserts that Pennsylvania's NO X averaging formula in section 129.98(e) does not adequately set an alternative emissions limit, as required by this provision in 129.98. The commenter argues that the allowable NO X mass emissions defined by the formula (E iallowable ) in 129.98 should be “fixed,” rather than changing with operating scenarios. The commenter further requests that EPA disapprove section 129.98 because this formula is unenforceable due to the unspecified method of calculation, and because PADEP's interpretation of these provisions provided as part of the supplemental document is clearly different from the plain language of the rule.

Response 9: As discussed in the NPRM and TSD, EPA identified deficiencies in the NO X averaging provisions of the RACT II Rule including the need for enforceable conditions. As previously discussed, Pennsylvania committed in the September 26, 2017 letter “. . . to submit the terms and conditions dealing with emission averaging to EPA as facility specific SIP revisions to address EPA's concerns.” September 26, 2017 submittal, p. 2. EPA is conditionally approving 129.98 under CAA 110(k) based on this commitment. Thus, EPA agrees to a limited extent with the comment regarding whether 129.98 adequately established how to compute the alternative NO X limit. The submission of alternative NO X limits and relevant compliance demonstration requirements for approval into the SIP would allow EPA to determine if each NO X averaging plan and underlying alternative NO X limit is adequate for RACT. In addition, any alternative limits provided by PADEP would need to be enforceable to obtain EPA approval into the SIP.

EPA does not agree with commenter that for the alternative NO X emissions limit to be adequate and/or enforceable, it must necessarily be a “fixed” limit. EPA has, in the past, approved emission limitations based on equations where certain variables within the equation change based on various aspects, such as type of fuel being used, operating modes, or other specific conditions. 15 16 EPA believes that, as long as all possible variables to be used are properly identified and the equation is sufficiently constrained, the equation can be used to establish an alternative emission limit and that limit can be enforceable.

Regarding the comment that Pennsylvania's interpretation of the enforceability of averaging provisions in 129.98 is somehow different in the September 2017 letter to EPA than what is in the terms of 25 Pa. Code 129.98, EPA has addressed the enforceability issues relating to averaging in 129.98 through the conditional approval and through Pennsylvania's commitment to submit all such plans to EPA for SIP approval. Pennsylvania's interpretation in the September 2017 letter regarding terms in 129.98 is not germane as EPA is conditionally approving 129.98 based on Pennsylvania's commitment to submit averaging plans to EPA for SIP approval in response to EPA's identified deficiencies in the NPRM regarding averaging.

Comment 10: The commenter identified various concerns with the equation provided in section 129.98(e) to estimate an alternative limit for NO X emissions averaging. First, the commenter argues that the equation is unenforceable because it does not properly explain how to calculate allowable NO X mass emissions for each affected emission unit. The commenter also indicates that if PADEP allows the use of actual heat input to calculate both actual NO X emissions (E iactual ) and allowable NO X emissions (E iallowable ), the source will never be found in violation of the NO X averaging plan, as mathematically both sides of the equation would increase proportionally.

Response 10: EPA agrees with the commenter to the extent that EPA already identified concerns with the equation provided in 129.98(e) given its lack of specificity. These concerns led to our conditionally approving 129.98 based upon Pennsylvania's commitment to submit to EPA for inclusion in the SIP permits which will employ these NO X averaging provisions. In order for section 129.98 to become fully approved, PADEP must provide to EPA for approval into the SIP the alternative emission limits adopted under section 129.98 and related compliance demonstration requirements.

EPA does not have sufficient information to assess if actual heat input will in fact be used in calculating both actual and allowable NO X emissions. E iactual is defined in section 129.98(e) as “the actual NOx mass emissions, including emissions during start-ups, shutdowns and malfunctions, for air contamination source i on a 30-day rolling basis.” (italics added). E iactual cannot represent the “actual NOx mass emissions” if the actual heat input is not used in the calculation, so using allowable heat input in calculating actual emissions would be illogical. EPA also believes that PADEP intends to use actual heat inputs when calculating E iallowable, along with the presumptive RACT emission rate (or more stringent emission rate applicable to the source). PADEP's September 26, 2017 commitment submittal states that “[t]he allowable mass emissions are calculated each hour using the presumptive NOx RACT emission limit (or more-stringent limit, if applicable) and the actual heat input from the Department certified CEMS.” P. 1 (italics added). However, the RACT regulations do not expressly specify whether actual heat input or allowable heat input will be used in calculating E iallowable. This is one of several identified concerns which led to EPA's conditional approval of section 129.98, and Pennsylvania's commitment to submit NO X averaging plans for approval into the SIP, with each plan including an enforceable alternative emissions limit and compliance demonstration requirements.

Comment 11: One commenter requests EPA require that NO X averaging emissions limitations established under 25 Pa. Code section 129.98(e) be based on emissions rates (lbs/MMBTU), instead of mass emissions (lbs).

Response 11: EPA disagrees with commenter's request because there is no requirement in the CAA that RACT emission limitations for NO X averaging be based on emissions rates, as opposed to NO X mass emissions. Although EPA allows the use of NO X averaging to meet RACT for NO X sources, no specific additional regulatory requirements concerning how to implement a NO X averaging scheme were adopted by EPA. Therefore, EPA believes that PADEP should have flexibility in choosing how to express the NO X averaging limits, as long as PADEP can demonstrate that the same level of RACT emission reductions will be achieved. 17

Comment 12: The commenter asserts that the system-wide and facility-wide averaging equations do not set an “alternative limitation,” which commenter claims is required by the plain language of the RACT II Rule. Commenter asserts that the Rule requires facilities to “calculate the alternative facility-wide or system-wide NO X RACT emission limit . . . .” Commenter further states that only the equation in 129.98(e) characterizes averaging as a method for demonstrating compliance, while this is not the plain reading of the remainder of section 129.98.

Response 12: Because the Commenter did not cite to the particular section or sentence of the RACT II Rule which is being interpreted or quoted, EPA can only use its best judgment to surmise that the language in section 129.98(e) is the source of the quoted language. Section 129.98(e) states “[t]he owner or operator shall calculate the alternative facility-wide or system-wide NO X RACT emissions limitation using a 30-day rolling average for the air contamination sources included in the application for the operating permit or plan approval, . . . .” There is no other language in section 129.98 which is similar to the Commenter's quote. EPA believes that the term “emission limitation” in section 129.98(e) should be interpreted as “E iallowable ,” and that the calculation of E iallowable results in a total NO X mass emission limitation for all of the sources included in the averaging plan, while commenter is expecting the averaging plan to have an overall emission rate limit, expressed as lbs NO X /million Btu heat input, for the sources. When section 128.98(e) is considered in its entirety, rather than considering just a portion of one sentence, there is no conflict between the equations in 129.98(e) and the language of Section 129.98 overall. As discussed in the March 14, 2018 NPRM, EPA proposed to conditionally approve the NO X averaging provisions in section 129.98 given concerns about the specificity of the equation in 129.98(e) and the compliance demonstration requirements within the rule. In this action, EPA is finalizing that conditional approval based on Pennsylvania's commitment to submit permits with NO X averaging to EPA for SIP approval. Section 129.98(e) states that an alternative limit calculated by the owner or operator must be in the operating permit modification or plan approval, and section 129.98(g) requires that the application for such an averaging plan should contain, “. . . methods for demonstrating compliance. . . .” The SIP submittal should therefore address the emission limitation and the compliance demonstration issues.

Comment 13: One commenter states that an averaging plan is a method of demonstrating compliance with presumptive NO X limits in section 129.97, allowing sources to demonstrate compliance as a group of emissions sources rather than as individual emissions sources.

Response 13: EPA agrees that sources can use section 129.98 to apply for an averaging plan covering multiple units or sources. However, EPA does not agree that the averaging plan or equation in section 129.98 will directly show compliance with the presumptive RACT limits applicable to each source in the plan. The averaging plan or equation in section 129.98 is instead intended to demonstrate that the resulting NO X emissions using a 30-day rolling average would not be greater than NO X emissions from the group of included sources if they each complied with the applicable presumptive NO X RACT emissions limit in section 129.97. Section 129.98(g) requires that the application for such an averaging plan should contain, “methods for demonstrating compliance. . . .” The fact that the application must have a method for determining compliance shows that section 129.98 does not, in its text, have a method for determining compliance with section 129.97. The presumptive limits in section 129.97 otherwise applicable to each source must be used as a factor in the E iallowable equation (unless a lower emission limit applies to a source) in 129.98 but will not be used on the E iactual side of the equation. Instead, actual mass emissions from each source in the plan, as determined by CEMS or other means, on any given day will be added together on the E iactual side of the equation. Thirty days of E iactual daily mass emissions will be added together and divided by 30, and 30 days of daily E iallowable mass emissions will be added together and divided by 30. The resultant 30-day average of E iactual emissions on any given day must be less than or equal to the 30-day average of E iallowable emissions on the same day. It will not be possible under this averaging scheme to determine whether the individual hourly emission rate of each source/unit met the presumptive RACT limit in section 129.97 for that source. Thus, the provisions of 129.98 provide the formula to set the alternative NO X emission limitation for sources who will comply with the alternative NO X emission limitation in lieu of the presumptive rates in 129.97.

As previously discussed, EPA is concerned that section 129.98 lacks a definitive method for demonstrating how the 30-day rolling average mass NO X emission limitation allowed by 129.98 will be less than or equal to the NO X emissions that would have been emitted if all the sources complied with the source specific RACT limits of 129.97, so PADEP has committed to submit these averaging plans to EPA for approval into the SIP. The adequacy of the compliance demonstration provisions will be assessed through both the state public notice process and EPA's review of such SIP revisions. Thus, EPA disagrees with the commenter that any of the assertions prevent EPA from conditionally approving 129.98 as part of Pennsylvania's RACT.

Comment 14: One commenter asserts that PADEP's NO X averaging provisions in section 129.98 do not require the establishment of an alternative NO X emissions limit; and therefore, there is no need to submit averaging plans as separate SIP revisions to EPA.

Response 14: EPA disagrees that Pennsylvania's NO X averaging provisions do not require establishment of an alternative NO X emission limit. As discussed in the March 14, 2018 NPRM, EPA proposed to determine that the NO X averaging equation in section 129.98(e) does ” . . . not clearly specify how to properly establish an alternative RACT limit.” 83 FR 11160. To do so, EPA would need to know, at the least, what facilities and units are involved in each plan, the applicable limits in each plan, if multiple fuels are used, or any other information necessary to calculate “E iallowable .” EPA also expressed concerns about the lack of compliance demonstration requirements in the rule. In addressing these deficiencies, PADEP committed to submit as SIP revisions any alternative emissions limits and compliance demonstration requirements approved under section 129.98. EPA has proposed approval of section 129.98 with the condition that PADEP meets this commitment to submit additional enforceable provisions for approval into the SIP during which time the alternative NO X emissions limit will be clearly established.

Comment 15: Two commenters allege that Pennsylvania's rule provides system-wide or facility-wide NO X averaging as a means of demonstrating compliance with the applicable emission limits included in the rule; and requests EPA to review the averaging provisions contained in EPA's Acid Rain Program (at 40 CFR 76.11) and the Mercury and Air Toxics Rule (MATS rule) (at 40 CFR 63.10009) that allow averaging as a means of demonstrating compliance.

Response 15: EPA disagrees with the commenters that Pennsylvania's rule provides averaging as a means of determining compliance. As previously stated, Pennsylvania's rule specifically directs the owner or operator to determine the “alternative facility-wide or system-wide NO X RACT emission limitation.” This language requiring the owner/operator to determine an alternative emission limitation shows that the provisions of 25 Pa. Code 129.98 are not a means of demonstrating compliance but rather a means to determine an alternative emission limitation applicable to the corresponding facility or system.

Furthermore, section 76.11(a)(3) of the Acid Rain Program regulations require that each unit in an averaging plan must have a contemporaneous annual emission limitation, and, also requires that specific information be submitted that is not specified in section 129.98, such as annual heat input limits and an alternative annual emission limitation for each unit. The equation is only one part of the Acid Rain Program provisions, and if PADEP's section 129.98 regulation included the additional information and other requirements of the Acid Rain Program regulations, the equation might present an acceptable option.

Regarding the MATS rule equation at 40 CFR 63.10009, EPA notes there are many additional limitations in that section which are not present in section 129.98, such as groupings of similar sources, as well as multiple equations (6) specifically geared toward each grouping. In the absence of further explanation by the commenter as to how these equations can be usefully applied to the section 129.98 averaging program, EPA does not see the MATS rule averaging scheme as useful to resolving EPA's concerns.

Comment 16: One commenter disagrees with EPA's interpretation that section 129.98 requires the establishment of alternative emissions limitations for individual sources. The commenter urges EPA to recognize that the presumptive limits of section 129.97 are being used to establish RACT compliance requirements, including the averaging provisions, and that therefore these requirements should meet RACT. The commenter asserts that the NO X averaging provisions in section 129.98 should be adequate for approval into the SIP, because EPA has found that the multiple fuel presumptive provision of section 129.97(g)(4) is approvable. The commenter contends that the multiple fuel presumptive provision is similar to the NO X averaging provisions, as they both establish weighted averaged limits. The commenter also claims that EPA's proposed rulemaking action makes the RACT II Rule costlier to implement and comply with and less flexible.

Response 16: The fact that EPA has approved the source specific RACT limits in section 129.97 does not mean that an averaging plan which uses those limits to calculate an alternative limit is necessarily approvable. EPA must clarify that, as proposed in our NPRM, we do not expect new unit-specific emission limits (other than the unit-specific limit required by presumptive RACT) to be established for each unit covered under a system-wide or facility-wide NO X averaging plan, but rather that an alternative limit must be determined for each plan, which would cover the non-complying unit and any other participating units. This is required by PADEP under 25 Pa. Code section 129.98(e): “The owner or operator shall calculate the alternative facility-wide or system-wide NO X RACT emissions limitation using a 30-day rolling average for the air contamination sources included in the application (. . .) by using the following equation to sum the emissions for all of the sources included in the NO X emissions averaging plan.”

EPA agrees with the commenter that the presumptive emission limits in section 129.97 are used in developing the alternative NO X limit under an averaging plan, as required by section 129.98(e); however, EPA disagrees that they are used to establish RACT compliance requirements. As plainly stated in section 129.98(e), the owner or operator shall calculate an alternative facility-wide or system-wide NO X emission limitation. Second, according to section 129.98(a), the averaging provisions of section 129.98 may only be utilized if one or more sources covered under such a plan are unable to meet the presumptive limits under section 129.97, and this unit would be in violation of the applicable NO X limit in section 129.97.

EPA disagrees with the commenter's assertion that the averaging provisions of section 129.98(e) are similar to those under the multiple fuel firing provisions in section 129.97(g)(4). The mathematical formula in section 129.97(g)(4) is a weighted average formula where a value is computed resulting from the multiplication of each component by a factor reflecting its frequency of use. The formula in section 129.98 computes an alternative limit that is not a weighted average or even a mathematical average, as the section's title may imply, but a summation of all NO X mass emissions from each unit covered under the averaging plan. Thus, the two formulae described by the commenter are not similar in nature and are not comparable. Also, the most substantive difference between these two requirements is that the NO X averaging provisions of section 129.98 require an owner or operator to establish an alternative limit covering multiple units, including any NO X units unable to meet presumptive RACT and any other participating units under such averaging plan; whereas section 129.97(g)(4) establishes a presumptive RACT requirement for a single emissions unit. This need to establish an alternative limit under the variable “E iallowable ” in the equation of section 129.98(e) is one of the main differences between the two provisions.

Furthermore, EPA identified several deficiencies in the averaging provisions of section 129.98 that prevent its full approval, but those deficiencies were not present in the multiple fuel provisions of 129.97(g)(4). Namely, EPA found that the averaging provisions of section 129.98 do not clearly specify how to properly establish an alternative RACT limit (under the variable “E iallowable ”) and do not specify sufficient compliance demonstration requirements for sources seeking to comply with these provisions. Therefore, these provisions were not found adequate to meet RACT. EPA disagrees with the commenter's presumption that if section 129.97(g)(4) meets RACT, so should section 129.98.

Finally, although the commenter claims that EPA's proposed action raises the cost for affected sources with regard to implementation and compliance of the RACT II Rule, the commenter failed to specify how EPA's action would increase costs on facilities choosing system-wide or facility-wide averaging. Given the lack of specificity and lack of analysis on how EPA's action requiring Pennsylvania to submit plans for SIP approval raises costs on sources, EPA provides no further answer.

Comment 17: The commenter argues that NO X averaging plans under section 129.98 must provide explicit emissions limits for individual emissions units consistent with the reasonably achievable controls, and further recommends using historical achievable NO X rates as the basis for establishing these limits. Furthermore, the commenter asserts that the averaging plan must show that the resulting NO X emission limits from the averaging plans are more stringent than the presumptive limits that would be in effect otherwise.

Response 17: EPA disagrees with the commenter on each of its assertions. First, EPA disagrees that averaging must provide explicit emissions limitations for individual sources. In fact, under its longstanding RACT policy, EPA has allowed NO X averaging, recognizing that it would allow states the flexibility of establishing RACT without requiring the imposition of source-specific controls or consequently source-specific emissions limits. EPA has allowed averaging for RACT purposes, as long as the state can achieve NO X reductions less than or equal to those that would be achieved if individual RACT emission rates were required for each individual source. Limitations on individual sources would restrict flexibility for meeting RACT requirements.

EPA disagrees that averaging must result in more stringent NO X limitations than the presumptive limits, as this is not required under the longstanding EPA provisions permitting averaging. See South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 1154 (D.C. Cir. 2018) (addressing averaging within EPA's ozone implementation rule). EPA finds that section 129.98 requires that the overall level of NO X emissions from units participating in an averaging plan should be less than or equal to the total NO X emissions which would have been emitted if each source complied with its applicable presumptive RACT limit. See 25 Pa. Code 129.98(e).

Comment 18: The commenter urges EPA to deny the approval of any NO X averaging plan as a revision to the SIP, if the plan does not provide sufficient justification for demonstrating that an emissions unit cannot meet the applicable presumptive RACT limit.

Response 18: EPA concurs with commenter that section 129.98(a) requires PADEP to determine that the facility is not able to comply with presumptive RACT in order to allow a source to comply with the provisions in 129.98. Pennsylvania has committed to submitting permits with the NO X averaging plans to EPA for SIP approval and EPA will review whether sources demonstrated compliance with requirements in 129.98 when such plans are before EPA for SIP approval.

Comment 19: One commenter asserts that although NO X averaging applies to NO X emitting units that cannot comply with the presumptive limits, section 129.98 does not impose any detailed requirements for showing that an affected NO X emissions unit cannot comply with the presumptive NO X RACT limits. Commenter argues that this lack of specific requirements allows the owner or operator of the affected emissions units to make this determination without providing any justification. Commenter further suggests such demonstration should be based on the evaluation of past performance for the non-complying unit.

Response 19: EPA agrees that section 129.98 does not specifically describe how a source must demonstrate that it is unable to meet the applicable presumptive limit, in order to qualify for averaging under section 129.98. However, the inability to meet the limit remains a requirement within 129.98 for Pennsylvania to evaluate before granting the alternative NO X plan. In addition, based on Pennsylvania's September 2017 commitment to “submit the terms and conditions dealing with emissions averaging to EPA as facility specific SIP revisions,” EPA will review the terms of each plan and whether the provisions in 129.98 were met. See Pennsylvania's September 26, 2017 submittal, p .2.

Comment 20: One commenter states that PADEP's averaging provisions allow unbounded discretion to the owner or operator in choosing which units may be able to participate in an averaging plan, which then allows inappropriate averaging. The commenter also contends that such discretion would allow, for example, that coal-fired boilers with existing controls, such as SCR or SNCR, avoid fully optimizing existing controls; or that averaging occurs across different fuel types.

Response 20: EPA agrees in part with the commenter's statement that section 129.98 grants the owner or operator the ability to determine which units should be averaged together; however, EPA disagrees with commenter's proposition that such discretion should cause EPA to disapprove this SIP revision. EPA believes that such discretion is consistent with EPA's RACT policy, which allows states to use averaging for RACT purposes as long as the level of NO X reductions due to averaging is equivalent to, or greater than, the level of reductions otherwise achieved by individual application of RACT. As noted in EPA's responses above, Section 129.98(a) requires that an owner or operator seeking to use NO X averaging must first show that one (or more) units to be included in the averaging plan cannot comply with the presumptive RACT limits applicable to the unit before an averaging plan can be considered. In addition, system-wide averaging is only allowed among sources under common control of the same owner or operator and located within the same ozone nonattainment area. Further, section 129.98(c) requires that the other sources participating in a NO X averaging plan are subject to a NO X emissions limitation under section 129.97. Provided these conditions are met, the owner or operator of an affected source ( i.e., the source with a non-compliant unit) may select which and how many other emissions units would be included in the averaging plan. PADEP has also stated as part of the SIP submittal that an owner or operator of an affected source complying with a NO X averaging plan must demonstrate that the NO X emissions for other units included in the averaging plan are below the applicable limits in section 129.97 in order to provide the cushion for averaging the excess emissions of the noncomplying source. 18 Thus, the discretion provided under section 129.98 to choose which units participate in a NO X averaging plan is not unbounded and would not allow “inadequate averaging,” as the commenter proposes.

EPA recognizes that PADEP's NO X averaging may allow units to avoid the installation of additional controls or optimization of existing controls. However, nothing in the CAA, its regulations or EPA guidance requires installation of additional controls or optimization of existing controls to meet ozone RACT requirements. By allowing states to use NO X averaging, EPA intended to provide additional flexibility in establishing RACT, as long as RACT level reductions are achieved for the nonattainment area. EPA does not believe that averaging across combustion units firing different fuels is inappropriate, nor does the commenter provide any analysis supporting this statement.

Comment 21: One commenter asserts that the RACT II Rule, as written, limits system-wide averaging to areas designated nonattainment under CAA section 107, but that PADEP appears to be considering the rest of the Commonwealth as one giant nonattainment area. The commenter argues that because the RACT II Rule does not have its own definition of “nonattainment area,” Pennsylvania's general definition in section 121.1 applies. Section 121.1 defines “nonattainment area” as those areas designated by EPA under CAA section 107.

Response 21: Pennsylvania's RACT II Rule allows emissions averaging to take place under two specific scenarios. In response to comments submitted by EPA during the state rulemaking process, PADEP clarified its interpretation of section 129.98 in the preamble to the final regulations. See 46 PaB 2036. First, for areas formally designated as nonattainment under CAA section 107, PADEP intended to limit emissions averaging to sources under common control or ownership within that formally designated nonattainment area, as this comports with established caselaw. See Nat. Res. Def. Council v. EPA, 571 F.3d 1245 (D.C. Cir. 2009) (holding that the NO X SIP call trading plan cannot be used for RACT averaging because emission reductions needed for a nonattainment area must come from same nonattainment area). Second, EPA believes PADEP intended to allow emissions averaging among sources under common control/ownership that were outside of those areas “formally designated” nonattainment, but inside the state boundaries ( i.e., within the OTR attainment areas and treated as Moderate nonattainment for SIP planning purposes in accordance with CAA section 184). That is, sources within an area formally designated as nonattainment under CAA section 107 could use emissions averaging with another source in the same area, and sources outside those formally designated nonattainment areas could use emissions averaging with other sources that are in similar attainment areas (but within the OTR area), but no emissions averaging is allowed between sources in an area formally designated as nonattainment under section 107 and sources in areas designated unclassifiable or attainment within the Commonwealth, but within the OTR.

Comment 22: The commenter notes that the provisions in section 129.98(g)(3) and 129.98(j) refer to the compliance demonstration requirements in section 129.100; however, the commenter states section 129.100 has no specific requirements for sources in an averaging plan.

Response 22: As noted in the NPRM, EPA identified its concerns regarding the provisions establishing compliance demonstration requirements for sources seeking to comply with NO X averaging in sections 129.98 and 129.100 of the RACT II Rule. For this reason, EPA is requiring PADEP as part of our conditional approval to submit for approval into the SIP any compliance demonstration requirements for sources subject to section 129.98. This will ensure that the alternative NO X limits under section 129.98 are practically and Federally enforceable, pursuant to CAA section 110(a)(2)(A).

Comment 23: The commenter contends that section 129.99(d)(6) refers to the compliance demonstration requirements in section 129.100; however, no specific requirements are specified for these affected sources under section 129.100. The commenter also contends that without existing compliance demonstration requirements, it is unclear how PADEP will be able to approve enforceable alternative RACT proposal, and that consequently EPA should disapprove section 129.99 of the regulation.

Response 23: EPA notes that section 129.99(d)(6) requires a source seeking to comply with source-specific RACT to “[i]nclude in the RACT proposal methods for demonstrating compliance and (emphasis added) recordkeeping and reporting requirements in accordance with § 129.100 (relating to compliance demonstration and recordkeeping requirements) for each air contamination source included in the RACT proposal.” Section 129.100(d) and (i) establish recordkeeping and reporting requirements for all sources subject to the RACT II Rule. In addition, section 129.99(d)(1) requires the written RACT proposal to follow the procedures in 129.92(a)(1)-(5) and (7)-(10). Section 129.92(a)(7) requires a RACT proposal to include the “testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT.” See 129.92(a)(7). As Pennsylvania has committed to submitting all additional source-specific RACT SIP provisions containing source-specific RACT limits approved by PADEP under 129.99 to EPA for approval into the Pennsylvania SIP, EPA can further evaluate compliance demonstration when such alternatives are submitted for SIP approval.

Comment 24: One commenter contends that section 129.100 does not prescribe specific recordkeeping requirements to determine compliance with the applicable RACT requirements in sections 129.96 to 129.99; and for that reason, urges EPA to disapprove this section of the RACT II Rule. Commenter argues that PADEP should have identified specific requirements for determining compliance with presumptive RACT and NO X averaging, such as fuel monitoring and hours of operation, while for alternative source-specific limits, it should have specified that compliance methods would be determined on a case-by-case basis.

Response 24: Neither EPA's implementation rule for the 1997 ozone standard nor the implementation rule for the 2008 ozone standard specifically identify those parameters, measures, or data which a source must record in order to demonstrate compliance with RACT limits developed by the states. See 40 CFR part 51, subparts X and AA. EPA has issued general statements in preambles for rulemakings other than the ozone implementation rules mentioned above discussing the monitoring and recordkeeping requirements generally necessary for any SIP and for NO X RACT SIPs, but these do not identify specific parameters that must be monitored/recorded for various types of sources in order to prove compliance, and instead directs the state to identify those parameters. See 57 FR 13498, 13502 (April 16, 1992) (General Preamble for the Implementation of Title I of the [CAA] Amendments of 1990); 57 FR 55620, 55624—55625 (Nov. 25, 1992) (Nitrogen Oxides Supplement to the General Preamble for the 1990 Amendments). The commenter cites two such parameters—fuel usage and/or hours of operation—which could have been specified in Pennsylvania's RACT regulations for NO X averaging and presumptive RACT. While EPA agrees that for many sources these two parameters are useful to determine compliance, EPA does not expect that a state's RACT SIP regulation identify, for each type of source, each parameter which must or might be monitored by that source in order to show compliance with the RACT limit. EPA believes that the operating permits issued by the Commonwealth will specify the parameters that need to be monitored to show RACT compliance. The Pennsylvania SIP also has other recordkeeping requirements besides the RACT II Rule (25 Pa. Code sections 129.96-129.100) which require recordkeeping useful for determining compliance with the RACT limits. For example, Pennsylvania has emission reporting requirements, found at 25 Pa. Code 135.1-135.5, which require almost every stationary source of any size to maintain and make available records which “. . . may include records of production, fuel usage, maintenance of production or pollution control equipment or other information determined by the Department to be necessary for identification and quantification of potential and actual air contaminant emissions. If direct recordkeeping is not possible or practical, sufficient records shall be kept, to provide the needed information by indirect means.” 25 Pa. Code 135.5. In addition, Pennsylvania has special monitoring provisions for sources that have or are likely to have “substantial impacts” on the maintenance of ambient air quality standards. 25 Pa. Code 139.51-139.53. These requirements include regular testing for emissions or the installation of continuous emission monitoring systems (25 Pa. Code 139.52) and reporting of such testing to PADEP, including “. . . information regarding test methods, test conditions, operating conditions of the source or other information which may be necessary to properly evaluate the results of emissions monitoring performed at a source.” 25 Pa. Code 139.53(b).

Pennsylvania's SIP also has permitting requirements (called Plan Applications and Plan Approvals) which require any “air contamination source” to obtain a plan approval from PADEP prior to constructing, modifying, reactivating, or installing an air pollution control device on such source. 25 Pa. Code 127.11. A plan application must, inter alia, “(3) Show that the source will be equipped with reasonable and adequate facilities to monitor and record the emissions of air contaminants and operating conditions which may affect the emissions of air contaminants and that the records are being and will continue to be maintained . . .” 25 Pa. Code 127.12(a)(3). The permit (plan approval) must contain the monitoring, recordkeeping and reporting requirements in 25 Pa. Code 139, any such requirements in Article III (Pennsylvania's Air regulations), and any other CAA monitoring, recordkeeping and reporting requirements required. 25 Pa. Code 127.12b(c). Finally, the operating permit requirements for major sources in 25 Pa. Code 127.401-127.406 also contain similar monitoring, recordkeeping, and reporting requirements. See 25 Pa. Code 127.411(a)(4), 127.441(c), and 127.442.

EPA believes that given the lack of specific requirements in EPA's RACT regulations for the 1997 or 2008 ozone NAAQS, the recordkeeping and reporting requirements of Pennsylvania's RACT II Rule in 25 Pa. Code 129.100 are sufficient for approval of the RACT SIP. Also, Pennsylvania has many other monitoring and recordkeeping requirements potentially applicable to RACT sources that provide ample authority to Pennsylvania, through various mechanisms, to obtain any information necessary to show compliance with the RACT limits. Thus, EPA does not believe Pennsylvania's RACT regulations must be disapproved, in whole or in part, for lack of specificity concerning monitoring and recordkeeping to show RACT compliance.

Comment 25: Commenters allege that EPA failed to consider the averaging times of Pennsylvania's NO X presumptive emission limits. Commenters contend that a 30-day averaging period is too lenient and inconsistent with RACT in other OTR states, which use averaging periods as short as 1-hour or 24-hours averages. Commenters also allege that 30-day NO X averaging may allow sources to emit more NO X on days when conditions are conducive to ozone formation that might lead to an exceedance of the NAAQS.

Response 25: EPA disagrees with the commenters. During EPA's review of Pennsylvania's RACT II Rule, EPA compared Pennsylvania's presumptive limits with those of other OTR states. In Appendix B of EPA's TSD, EPA provided the emission limits for other OTR states while noting the difference between those states' rules and Pennsylvania's rule below each table in the TSD.

PADEP determined that a 30-day rolling average limit addresses problems faced by certain owners and operators, including variability in fuel source, emission spikes during start-ups, shutdowns, and malfunctions, and other unavoidable circumstances. PADEP determined that these situations are not indicative of normal operations and so it would not be appropriate to require facilities to show compliance with the presumptive NO X RACT emission limit over a 1-hour or 8-hour averaging period as such variability would affect technical and economic feasibility of sources to meet the presumptive limits making compliance either technically infeasible or cost ineffective. PADEP selected the 30-day rolling average to ensure technical and economic feasibility for Pennsylvania sources to meet RACT. PADEP reasons that to maintain compliance with a 30-day rolling average, sources will have to operate below the allowable standard on some days in order to account for potential days of higher emissions. PADEP also notes that EPA has approved 30-day rolling averages as “short-term” RACT limitations in SIP revisions submitted by New York and Wisconsin. See 75 FR 64155 (October 19, 2010) for Wisconsin and 78 FR 41846 (July 12, 2013) for New York.

Comment 26: One commenter contends that PADEP did not perform any cost effectiveness evaluation while setting the presumptive limits and argues that EPA cannot supplement a state's faulty or deficient SIP. The commenter alleges that EPA's performance of a cost-effective analysis in the second TSD shows both the necessity for such an analysis and that PADEP did not perform a cost-effectiveness analysis and therefore Pennsylvania's SIP revisions lacked an adequate RACT evaluation.

Response 26: EPA disagrees that PADEP did not perform any cost-effectiveness evaluation when establishing presumptive limits under the RACT II Rule. PADEP relied on a cost-effectiveness of $2,800 per ton of NO X controlled and $5,500 per ton of VOC controlled for the presumptive limits in the RACT II Rule. 19 As mentioned in PADEP's final rulemaking, Pennsylvania's Environmental Quality Board (EQB) stated that the Regulatory Analysis Form (RAF) was “replete with substantive information regarding emissions data, cost-effectiveness numbers, public health information, statutory requirements, small business information and other types of analyses to demonstrate that the regulations are legally required, in the public interest, economically and technologically feasible, and will reduce emissions.” The EQB also stated “[t]he presumptive RACT emission limitations were established based on cost-effectiveness of available control technology. . . .” Thus, EPA believes that PADEP did in fact perform a cost-effectiveness evaluation in order to determine what emission limitations and control technologies were technologically and economically feasible.

Also, EPA disagrees that it “supplemented” the state's SIP submission by performing and referring to its own analysis of cost for very large coal-fired boilers with SCR and SNCR in the second TSD. EPA performed this analysis in support of our evaluation of the reasonableness of PADEP's cost-effectiveness threshold of $2,800 per ton of NOx controlled and the resulting emission limits derived for coal-fired boilers in the RACT II Rule. EPA focused its evaluation on this source category because it is the largest NO X emitting sector in Pennsylvania. EPA's evaluation in the TSD supported our conclusion that Pennsylvania's RACT was reasonable and does not indicate that Pennsylvania's SIP was therefore inadequate or lacking information.

Comment 27: Two commenters claimed that Pennsylvania's cost effectiveness thresholds for NO X and/or VOC were too low compared to adjoining states (New York, New Jersey, and Delaware) in the OTR and states sharing nonattainment areas with Pennsylvania. One commenter referred to New York's threshold of $5,000 to $5,500 per ton of NO X for coal-fired units and pointed to New Jersey's and Delaware's consideration of best available control technology (BACT) as cost effective controls to meet RACT, even when not using specific cost-effectiveness benchmarks.

Response 27: EPA is aware that Pennsylvania considered cost-effectiveness levels that are lower than other states in the OTR when developing the RACT II Rule; however, states have the discretion to determine what costs are considered reasonable when establishing RACT for its sources. For these reasons, EPA has not set a single cost, emission reduction, or cost-effectiveness figure to fully define cost-effectiveness in meeting the NO X RACT requirement. Therefore, each state must make and defend its own determination on how to weigh these values in establishing RACT.

PADEP relied on a cost-effectiveness of $2,800 per ton of NO X controlled and $5,500 per ton of VOC controlled for the presumptive limits in the RACT II Rule. 20 In considering similar comments received during its proposal of the rule concerning cost-effectiveness, PADEP determined that “[e]ven with an additional 25% margin, the upper bound cost-effectiveness threshold would not be any greater than $3,500 per ton NO X controlled” and “$7,000 per ton VOC controlled,” and that “[a]pplying these new thresholds does not have an effect on the add-on control technology decisions for the presumptive RACT requirements established in the final rulemaking.” PADEP concluded that the RACT presumptive limits included in final form of the RACT II Rule “are comparable to emission limits included in other states' RACT regulations as well.”  21

Further, while cost effectiveness is an important consideration, it must be noted that other factors should be integrated into a RACT analysis, such as emission reductions and environmental impact. As stated above, Pennsylvania determined higher cost thresholds did not impact feasible add on control technology. And, as discussed earlier, EPA believes that PADEP's presumptive limits are reasonable as they reflect control levels achieved by the application and consideration of available control technologies, after considering both the economic and technological circumstances of Pennsylvania's own sources. EPA also finds that Pennsylvania's presumptive limits are comparable to those adopted in other states for similar sources. 22

Comment 28: One commenter argues that sources petitioning for alternative compliance schedules, as allowed under section 129.97 and 129.99, should be required to submit the alternative compliance dates and interim emissions limits to EPA for inclusion in the SIP. Commenter further argues that without incorporating these into the SIP, facilities would be liable for violating the SIP-approved compliance deadline of Jan 1, 2017 and the applicable presumptive limits.

Response 28: Regarding section 129.99, section 129.99(h) explicitly states that alternative RACT requirements or emission limitations requested under subparts 129.99(a), (b) and (c) and approved under 129.99(f) will be submitted to EPA for approval into the SIP. Pennsylvania has also committed to submitting to EPA all source-specific RACT determinations under section 129.99 for approval as a SIP revision within 12 months of EPA's final rulemaking. Therefore, the commenter's concern that alternative compliance schedules issued under section 129.99 should be submitted to EPA for approval as part of the SIP is already being addressed by the language of section 129.99(h) and Pennsylvania's September 26, 2017 committal to submit permits with schedules under 129.99 to EPA for inclusion in the SIP; PADEP will be submitting any section 129.99 alternative compliance schedule and the emission limits to EPA as a formal SIP revision. EPA will evaluate and act accordingly on any SIP revision submitted with alternative compliance schedules in a future rulemaking action.

For alternative compliance schedules in section 129.97(k), EPA believes that PADEP intends to submit all such alternative compliance schedules to EPA for approval into the SIP. EPA finds the schedules discussed in section 129.97(k) are also included within the scope of section 129.99 (and thus within Pennsylvania's September 26, 2017 commitment) because section 129.99(i) addresses how sources can get an alternative RACT requirement or alternative RACT emission limit when installing an air cleaning device and section 129.99(i) provides the process and details needed for sources to petition PADEP for an alternative. Section 129.97(k) provides one such alternative RACT requirement within the meaning of section 129.99(i) as it provides that sources which cannot meet presumptive limits without installing an air cleaning device may petition PADEP for additional time to comply. Thus, any source seeking an alternative under section 129.97(k) (because it needs to install an air cleaning device) is also subject to section 129.99 (via 129.99(i) as a source seeking an alternative RACT requirement due to installation of an air cleaning device), and PADEP has committed in its September 26, 2017 letter to sending all such alternative RACT proposals to EPA for SIP approval.

Sources that did not need to install equipment and/or modify permits to meet the presumptive RACT requirements in 25 Pa. Code 129.96 were required to comply with presumptive RACT by the January 1, 2017 deadline. Existing sources that could not meet presumptive RACT without installation of an air cleaning device were required to petition PADEP to request an alternative compliance schedule by October 24, 2016 and include a compliance schedule no longer than three years from the date of PADEP's approval of the petition, with interim emission limits and compliance dates. 25 Pa. Code 129.97(k). PADEP provided a list to EPA on March 22, 2019 of sources receiving alternative compliance schedules under 25 Pa. Code 127.97(k) or 127.99(i) showing that eight of the nine sources are presently complying with presumptive RACT requirements or more stringent emission limits known as “best available technology” limits to which new sources in Pennsylvania are subject. The ninth source will achieve full compliance with presumptive RACT by Fall of 2019. EPA has included the list from Pennsylvania in the docket for this rulemaking action available online at www.regulations.gov.

Given the relatively small number of sources seeking alternative compliance schedules under 25 Pa. Code 129.97(k), the majority of sources currently in compliance with presumptive RACT and the remaining source complying with presumptive RACT imminently, and given PADEP's commitment to have permits issued under 25 Pa. Code 127.99 (inclusive of 127.97(k)) included in the SIP, the extensions of time granted by PADEP's regulations after the January 1, 2017 RACT compliance deadline are not unreasonable as RACT is being implemented within the Commonwealth. Moreover, there is no ability for EPA to “turn back the clock” and have these sources comply by 2017 at this date. For these reasons, EPA believes that the provisions in 127.97 and 129.99 regarding compliance dates are reasonable and approvable (with the caveat that 127.99 is subject to conditional approval for submission of permits for SIP approval) for RACT as compliance is complete or nearly complete. EPA will evaluate and act accordingly on any permits submitted to EPA for SIP-approval at a future time through a future rulemaking action.

Comment 29: Commenter argues that for sources receiving alternative compliance schedules under sections 129.97 or 129.99 extending beyond January 1, 2017, PADEP should be required to submit the alternative compliance dates and interim emissions limits to EPA for possible approval into the SIP. Commenter urges EPA to confirm that alternative compliance schedules or limits are not Federally enforceable, unless PADEP submits them to EPA and EPA approves them into the SIP.

Response 29: In 25 Pa. Code section 129.99(h), PADEP explicitly states that PADEP will submit the alternative RACT requirement or RACT emission limitation requested to EPA for approval into the SIP. In addition, PADEP has committed to submitting to EPA any alternative RACT schedules and proposals received under section 129.99, which includes those submitted under 25 Pa. Code 127.97(k) as discussed in response to prior comments. EPA will evaluate and act accordingly on any alternative compliance schedule or alternative RACT emission limit submitted for SIP-approval at a future time through a future rulemaking action. EPA will evaluate the reasonableness of any extension of time for RACT compliance beyond Pennsylvania's January 1, 2017 deadline when the SIP is submitted to EPA. In response to Comment #28, EPA addressed the timing of sources complying with alternative RACT. Regarding Federal enforceability, EPA agrees that any alternative RACT emission limits and/or alternative compliance schedules approved by PADEP which are not submitted to EPA for approval into the SIP would not be Federally-enforceable under the SIP; however, these limits may be included in some other type of Federally-enforceable permit.

Comment 30: One commenter argues that EPA cannot approve section 129.99(i)(2)(v) for sources petitioning alternative compliance schedules, because it allows a compliance date later than January 1, 2017, as required by EPA's ozone implementation regulation in 40 CFR 51.1112(a)(3). Commenter states that EPA must disapprove this provision of the regulation, as it is in violation of EPA's own regulations.

Response 30: EPA issued the 2008 ozone attainment designations for numerous areas of the country, including designating five areas in Pennsylvania as Marginal nonattainment areas, on May 21, 2012. See 77 FR 30088 and 40 CFR 81.339. On March 6, 2015, EPA issued its final rule for implementation of the 2008 ozone NAAQS (the “2008 Ozone SIP Requirements Rule”). See 80 FR 12264 and 40 CFR 51.1100-51.1103. The 2008 Ozone SIP Requirements Rule set a deadline for submission of RACT SIP revisions for VOC and NO X of two years after the designations effective date of July 20, 2012 or July 20, 2014 and a deadline for implementation of RACT of January 1, 2017. See 77 FR 30088 and 40 CFR 51.1112(a)(2). After EPA issued the 2008 Ozone SIP Requirements Rule, PADEP submitted its SIP revision on May 16, 2016 to implement the RACT requirements for the 1997 and 2008 ozone NAAQS. These regulations became final at the state level on April 23, 2016.

Sources in Pennsylvania subject to RACT for the 1997 and 2008 ozone NAAQS generally had slightly more than seven months from the state effective date of Pennsylvania's RACT regulations to meet the January 1, 2017 deadline. Advance planning by RACT sources in reliance upon Pennsylvania's proposed RACT limits before they became final at the state level on April 23, 2016 would have been imprudent because Pennsylvania both lowered and raised the presumptive RACT limits for multiple types of sources following the public comment period, which illustrates the uncertainty sources faced while trying to plan for implementation of RACT standards. For a list of changes to the presumptive limits following Pennsylvania's proposal, see Table 1.

Pennsylvania sources relying on the presumptive limits in Pennsylvania's proposed RACT II Rule could find themselves ordering equipment to meet RACT limits that they didn't need because they could meet the increased limit in the final rule without additional equipment or could find themselves ordering inadequate equipment to meet a NO X limit that was lowered by the final rule.

On April 6, 2017, EPA proposed approval of revisions to Connecticut's RACT regulations for the 2008 ozone NAAQS. See 83 FR 16772. These revisions included new NO X limits for MWCs with a compliance date of August 2, 2017, and new NO X limits for boilers, turbines, and reciprocating internal combustion engines (RICE) with a compliance date of June 1, 2018. See 83 FR 16772, 16773 (April 6, 2017). Among other reasons, EPA justified these compliance deadlines beyond the January 1, 2017 Federal regulatory deadline because the sources subject to the new RACT limits were a small subset of all the facilities subject to RACT and were already subject to RACT controls in the SIP that would be further tightened by the new revisions. See 83 FR 16772, 16776. EPA also justified the post-January 2017 dates based on the fact that it was impossible for sources to retroactively meet the January 1, 2017 deadline, and agreed with Connecticut's determination that given the August 2, 2016 and December 22, 2016 state effective dates for the new MWC limits and combustor limits, respectively, it would not be reasonable to require immediate compliance. Likewise, for Pennsylvania, EPA finds it would be impossible for sources today to retroactively meet the January 1, 2017 deadline for implementation of RACT. Like Connecticut, Pennsylvania had also implemented in its SIP RACT requirements on all major sources of NOx and VOCs for the prior 1-hour ozone NAAQS. See 40 CFR 52.2020(d). In addition, for sources needing installation of controls to meet requirements of the RACT II Rule after the Rule became state effective in 2016, such sources needed time to select controls, apply for permits and implement, install and begin operating such controls to meet RACT II Rule limits.

For the above reasons, EPA finds the provisions in Pennsylvania's rules providing for additional time to comply in 25 Pa. Code section 127.97 and 127.99 allowed sources installing new emission controls to meet RACT a reasonable time to comply. Thus, EPA is approving the provisions in 129.97 and conditionally approving the provisions of 129.99.

Comment 31: The commenter asks whether section 129.96(d), which states that the requirements of sections 129.96-129.100 do not apply to the owner and operator of a facility which is not a major NO X or major VOC emitting facility on or before January 1, 2017, would allow an otherwise major NO X or VOC source to obtain a synthetic minor permit before 1/1/17 to avoid 2008 RACT, then “shed” its minor status after 1/1/17 and remain not subject to 2008 RACT. The commenter argues that facilities that become synthetic minor NO X or VOC sources before January 1, 2017 to avoid RACT should take enforceable permit limits and that such limits should be submitted to EPA for approval into the SIP.

Response 31: EPA acknowledges that, generally, major sources may take enforceable restrictions to reduce their facility-wide potential emissions to avoid the definition of a major NO X or VOC source. However, EPA interprets that because the RACT II Rule is only applicable to sources that met the “major NO X /VOC source definition” by January 1, 2017, any major sources without Federally-enforceable restrictions by such date must be required to comply with the RACT II Rule.

Furthermore, if any facility which takes such restrictions seeks to later “shed” its minor source status after January 1, 2017, the facility would then become a major source through its “modification” and would then be subject to the RACT II Rule via 25 Pa Code 129.96(b). This subsection requires facilities that become a major source to be subject to the RACT II Rule which has ongoing applicability. Thus, EPA believes it is unnecessary to require enforceable restrictions to be submitted to EPA for SIP approval as the facility would be subject to the RACT II Rule if it shed its minor limits and became a major source of NO X or VOC.

Comment 32: The commenter argues that EPA's approval of section 129.97(b)(1)(i)-(iii), requiring biennial tune-up for units between 20 to 50 MMBTU/hr, would be backsliding as there are similar RACT provisions previously approved in the Pennsylvania SIP, in 25 Pa. Code sections 129.91-95, that are more stringent because they require annual tune-ups.

Response 32: EPA disagrees with the commenter's assertion that EPA is allowing “backsliding” by approving the provisions in section 129.97(b)(1). Commenter seems to be referring to the provisions in 129.92(b)(2)(i)-(iii), which also require tune-up for units between 20 to 50 MMBTU/hr, but on an annual basis. EPA acknowledges that the requirements in section 129.92(b)(2)(i)- (iii) require an annual tune-up, while section 129.97(b)(1)(i)-(iii) only requires a tune-up once every two years. However, EPA does not believe that relaxation of the SIP is occurring because section 129.97(i) requires sources to comply with section 129.97 unless a RACT permit issued prior to April 23, 2016 under 129.91-95 has more stringent requirements or limits. Based on the requirement in section 129.97(i), individual sources in Pennsylvania with RACT permits issued prior to April 23, 2016 would not be backsliding because they would remain subject to the more stringent annual tune-up requirements of 129.92(b)(2)(i)-(iii). Only relatively newer sources (not subject to the prior RACT requirement for annual tune up) would be subject to the biennial tune-up requirements of section 129.97(b)(1)(i)-(iii). Thus, EPA believes any relaxation concerns with respect to tune-up requirements for units between 20 to 50 MMBTU/hr are fully addressed by the provisions of section 129.97(i).

Comment 33: Commenter requests EPA to justify how the provisions in section 129.97(c) and (d), requiring owners or operators to install, maintain, and operate the source in accordance with the manufacturer's specifications and with good operating practices, are enforceable as a practical matter.

Response 33: The requirement to “install, maintain and operate the source in accordance with the manufacturer's specifications” is a practically enforceable requirement as the manufacturer specifications for control equipment at any particular source are usually available and defined. A requirement to operate in line with “good operating practices” is practically enforceable because good operating practices can be defined within a source or industry. This is consistent with EPA's prior approval of similar RACT provisions for the Commonwealth.

Comment 34: One commenter alleges that EPA cannot rely on the document titled “PADEP's RACT II Supplemental Submittal” for its rulemaking action, as this document did not undergo adequate public participation as a SIP revision, as required in 40 CFR 51.102, 51.103, 51.104 and Appendix V.

Response 34: EPA is relying only on that portion of PADEP's September 26, 2017 submittal (titled “PADEP's RACT II Supplemental Submittal”) that contains PADEP's commitments to further supplement the SIP within one year of EPA's final conditional approval. Information in PADEP's supplemental submittal that is not relevant to PADEP's commitment to address EPA's conditions is not needed nor relied upon in EPA's rulemaking herein. The nature of a conditional approval under CAA section 110(k)(4) is such that when EPA's review of a formal SIP submission identifies a deficiency in the SIP that could be remedied by state action within one year of the final conditional approval, the NPRM sets forth the conditions the state must satisfy within one year to correct the deficiencies. The state must provide a committal letter to EPA stating that it will fulfill EPA's requirements for the commitment. The opportunity for public comment upon the adequacy of EPA's conditions and the ability of the state to meet those conditions occurs during the public comment period announced by the NPRM. EPA does not consider a state's conditional approval committal letter to be a SIP revision under 40 CFR 51.102(a), 51.103, 51.104, or the completeness criteria in Appendix V to Part 51. The provisions in Appendix V related to requirements for states to conduct public hearing and follow state administrative procedural requirements relate to the plan submitted by the state. Pennsylvania complied with requirements in 40 CFR part 51 and Appendix V relating to submission of its “plan” or SIP submittal ( i.e., the May 16, 2016 SIP submittal which includes provisions in 25 Pa. Code 121.1, 129.96, 129.97, 129.98, 129.99 and 129.100). Pennsylvania's supplemental material from September 2017 was additional supportive information Pennsylvania had regarding its RACT provisions and was about Pennsylvania's commitment to submit alternative RACT requirements and emission limitations to EPA for SIP approval. Thus, EPA disagrees with the commenter that Pennsylvania's September 26, 2017 provision to EPA needed to undergo additional “public participation as a SIP revision.”

Comment 35: The commenter claims EPA should better define the conditional nature of EPA's approval and EPA should fully develop methods and conditions which Pennsylvania would need to address for full approval.

Response 35: EPA disagrees with the commenter. EPA's NPRM clearly specified what PADEP needed to do to correct the deficiencies identified in the NPRM relating to section 129.98 NO X averaging provision and section 129.99 for alternative RACT requirements or emission limitations. See 83 FR 11155, 11160-62. EPA has also restated the conditions and deficiencies in this rulemaking. See Section II of this rulemaking action.

Comment 36: The commenter claims that section 129.98 and 129.99 do not conform with CAA section 110(a)(2)(A), as they are not practically and Federally enforceable, and recommends EPA to disapprove these provisions until Pennsylvania adopts specific enforceable measures.

Response 36: The commenter has not provided adequate argument, analysis, or specific information for EPA to account for this comment. Thus, no further response is needed. However, EPA will note that we are conditionally approving section 129.98 and 129.99 based on the deficiencies we identified in the NPRM and based on Pennsylvania's commitment to submit permits and plans to EPA for SIP approval. With respect to the issue of practical enforceability as it pertains to section 110(a)(2)(A), EPA finds that section 129.99 is practically enforceable, as the regulation lays out the process for sources to obtain source-specific RACT requirements for affected sources. PADEP would then subsequently submit to EPA such permits for approval into the SIP. EPA proposed conditional approval of section 129.99 because it lacked a date certain by which PADEP would submit the relevant source-specific RACT SIP revisions to EPA.

As discussed in detail in the NPRM and in this action, EPA did have concerns with enforceability of 129.98 and thus we are conditionally approving 129.98. EPA's conditional approval of these provisions will ensure that practical, enforceable RACT emissions limits are established under 25 Pa. Code sections 129.98 and 129.99, consistent with CAA section 110(a)(2)(A).

Comment 37: Commenter believes that the required elements of section 110(a)(2) of CAA have been fully addressed by PADEP's SIP submittal for the RACT II Rule, particularly referring to section 110(a)(2)(A), (C), and (F). The commenter asserts that a specific method of compliance is not required under section 110(a)(2), if the applicable emission limits and related requirements are already part of the rule.

Response 37: EPA identified deficiencies in 25 Pa. Code section 129.98 pertaining to the requirement in CAA section 110(a)(2)(A) for enforceable limits because 129.98 did not adequately establish how to compute an alternative NO X emissions limitation and/or adequately specify the methods for demonstrating compliance and recordkeeping and reporting requirements for emissions averaging. EPA's conditional approval of 25 Pa. Code section 129.98 will ensure that practical enforceable emissions limits for CAA 110(a)(2) are established as RACT through SIP approval of each averaging plan.

On September 26, 2017, PADEP submitted a letter detailing its commitments to provide additional SIP revisions to correct various deficiencies identified by EPA as present in the May 16, 2016 SIP submittal. In that letter, PADEP committed to submitting to EPA, for approval into the SIP, any facility-wide or system-wide averaging plan approved under 25 Pa. Code section 129.98 and any source-specific RACT determinations under 25 Pa. Code section 129.99. PADEP committed to submitting these additional SIP revisions within 12 months of EPA's final conditional approval.

Therefore, as authorized in CAA section 110(k)(3) and (k)(4), Pennsylvania shall submit the following as source-specific SIP revisions for EPA's approval as a condition of approval of 25 Pa. Code 128 and 129 in the May 16, 2016 SIP revision: (1) All facility-wide or system-wide averaging plans approved by PADEP under 25 Pa. Code section 129.98 including, but not limited to, any terms and conditions that ensure the enforceability of the averaging plan as a practical matter ( e.g., any monitoring, reporting, recordkeeping, or testing requirements); and (2) all source-specific RACT determinations approved by PADEP under 25 Pa. Code section 129.99, including any alternative compliance schedules approved under section 129.97(k) and 129.99(i); the source-specific RACT determinations submitted to EPA for approval into the SIP should include any terms and conditions that ensure the enforceability of the source-specific RACT emission limitation as a practical matter ( e.g., any monitoring, reporting, recordkeeping, or testing requirements).

EPA is fully approving 25 Pa. Code sections 121.1, 129.96, 129.97, and 129.100 as meeting certain aspects of major stationary source RACT in CAA section 172, 182, and 184 for the 1997 and 2008 ozone NAAQS submitted May 16, 2016. EPA is also conditionally approving 25 Pa. Code sections 129.98 and 129.99 based on the commitment provided by Pennsylvania to submit additional SIP revisions to address the deficiencies identified by EPA in the May 16, 2016 SIP revision. Upon submission of all elements intended to meet the conditions identified in Section IV of this rulemaking action, Pennsylvania must submit a SIP revision certifying that it has met all conditions. Once EPA has determined that Pennsylvania has satisfied these conditions, EPA shall remove the conditional nature of this approval and Pennsylvania's 1997 and 2008 8-hour ozone RACT SIP revision will, at that time, receive a full approval status. Should Pennsylvania fail to meet the conditions specified in Section IV, the final conditional approval of 25 Pa. Code sections 129.98 and 129.99 shall automatically convert to a disapproval and EPA will issue a finding of disapproval. A finding of disapproval would start an 18-month clock to apply sanctions under CAA section 179(b) and a two-year clock for a Federal implementation plan under CAA section 110(c)(1).

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 the following sections of 25 Pa. Code with a state effective date of April 23, 2016: 25 Pa. Code section 121.1, 129.96, 129.97, 129.98, 129.99 and 129.100; the list of definitions contained in 121.1 and the changes being made can be found in the TSD for this rulemaking action. 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. 23

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 8, 2019. 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, on Pennsylvania's RACT II Rule, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

In April 2017, the Board established its Regulatory Reform Task Force (RRTF) to comply with the spirit of Executive Order 13777. The primary objective of the RRTF is to identify Board rules and practices that are burdensome, unnecessary, or outdated and to recommend how they should be addressed. See Regulatory Reform Task Force, EP 738 (STB served June 20, 2017). The RRTF identified the current water carrier tariff regulations at 49 CFR part 1312 as imposing unnecessary costs on the carriers as well as the Board. See RRTF 90-Day Status Report (issued May 25, 2017); RRTF Status Report (issued Nov. 21, 2017). 1 Water carriers operating in the noncontiguous domestic trade  2 are required to publish, file, and keep available for public inspection tariffs setting forth their rates, charges, rules, and classifications. 49 U.S.C. 13702(a)-(b). 3 The Board's current regulations for filing water carrier tariffs contemplate the filings of tariffs with the Board in paper format. However, the Board has granted Special Tariff Authority—relief from the current regulations on a case-by-case basis—to allow water carriers to file their tariffs in alternative electronic formats, typically email. 4 For many carriers, these email submissions are a daily occurrence.

The Board issued a notice of proposed rulemaking that proposed to update the regulations to allow water carriers  5 to electronically publish, file, and keep tariffs available for public inspection. Water Carrier Tariff Filing Procedures ( NPRM ), EP 743 (STB served Dec. 21, 2018) (83 FR 66229). 6 The Board received comments on the NPRM from Tropical Shipping and Construction Co., Ltd. (Tropical), The Pasha Group (Pasha), and TOTE, LLC (TOTE). After considering the comments, the Board is adopting the rule proposed in the NPRM, without substantive change, as a final rule. The text of the final rule is below.

Proposed Rule. The NPRM proposed to revise 49 CFR part 1312 to include regulations which would allow water carriers to publish, file, and keep their tariffs electronically, but would also continue to allow water carriers the option of filing their tariffs in paper format. Specifically, under the proposal, a water carrier would be permitted to comply with the filing requirement in 49 U.S.C. 13702 by: (1) Maintaining a publicly available version of its current and historical tariffs on the internet, and (2) electronically filing (e-filing) with the Board an annual certification made by a duly authorized corporate officer of the carrier that (a) contains an active link  7 to the internet location and access information for its tariffs and (b) affirms the water carrier's continuing compliance with the relevant sections of Part 1312. The proposed regulation, at 49 CFR 1312.4(b), listed the requirements for the annual certification and provided sample language to be used in the certification.

As explained in the NPRM and proposed at 49 CFR 1312.4(b)(3), advance notification to the Board would be required if a water carrier anticipates an outage of its electronic tariff system. NPRM, EP 743, slip op. at 5. In circumstances beyond the carrier's control (such as a software malfunction), the carrier would be required to notify the Board promptly via email at tariffs@stb.gov . Id. In the event of any tariff system outage, carriers would be required to make alternative arrangements with the Board to ensure that the agency and public have access to the tariffs in effect during the outage, and the Board would provide that information on its website so that the public would be made aware of the particular outage as soon as reasonably possible. Id.

The proposed electronic archiving requirement under 49 CFR 1312.4(b)(4) would require a water carrier to maintain historical versions of its tariffs, including all rates and applicable rules, for a period of not less than five years, beginning when a carrier first electronically files its tariffs. Id. at 11. Tariffs kept on the internet would also need to comply with the proposed addition to 49 CFR 1312.3, requiring that water carriers provide the date on which tariffs or changes to tariffs first appear on the internet and the date on which they are expected to become effective. Id. at 5. The rule would not prescribe the specific information technology resources (programming, applications or software, etc.) that water carriers must use to house this information, but any electronic system selected by a carrier would need to comply with regulatory requirements and allow access by the Board and any member of the public who requests it, free of charge. Id.

The NPRM explained that to utilize e-filing, a filer would first pay the required fee  8 via electronic payment through Pay.gov . 9 NPRM, EP 743, slip op. at 4. Once the payment has been submitted, a confirmation email from Pay.gov would be sent containing a unique transaction number. The filer would then go to the Board's e-filing website and, through a registered account, submit the transaction number received from Pay.gov and attach the annual certification. Once the certification is received and verified, the Director of the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) or a designee would acknowledge receipt of the annual certification in writing. Id.

Under the proposed regulations, the Board would create a web page that provides links to the location of a water carrier's current tariff, the most recent annual certification, and prior certifications. NPRM, EP 743, slip op. at 4. It is expected that this web page could be accessed by the Board and public and that the internet links to water carrier tariffs would be available 24 hours a day, seven days a week, year-round. Id. at 4-5. Access to water carrier tariffs filed in paper format would continue to be available to the public via requests to OPAGAC.

By adding an e-filing option to the regulations, the proposed rule would eliminate the option to obtain tariff filing relief under the existing Special Tariff Authority application process, and would revoke all prior grants of Special Tariff Authority. NPRM, EP 743, slip op. at 4 (citing 49 CFR 1312.2(e)). The proposed changes would require water carriers to either file their tariffs in paper format or electronically as outlined here.

Comments. As noted above, the Board received comments on the NPRM from Tropical, Pasha, and TOTE. The comments uniformly supported the proposal to allow water carriers to publish, file, and keep their tariffs electronically. Tropical and Pasha both state that the proposal would reduce the regulatory burden on water carriers, allowing them to function in a more efficient and less costly manner. (Tropical Comments 2; Pasha Comments 2.) TOTE supports the comments submitted by Tropical and Pasha, and states that its subsidiaries would realize substantial savings from the proposed rule, and that the public interest will be protected through the Board's ongoing regulatory oversight of water carriers. (TOTE Comments 2.)

Final Rule. After considering the comments, the Board is adopting the rule proposed in the NPRM, without substantive change, as a final rule. The only modification from the proposed electronic filing procedure is changing the due date for the annual certification from the first business day of February to the first business day of October in order to allow water carriers to more quickly utilize this option. Water carriers may continue to file under their existing Special Tariff Authority until the first due date of the annual certification, which will be October 1, 2019, at which time grants of Special Tariff Authority will be automatically revoked. 10 It is anticipated that the final rule will significantly reduce the burdens associated with the current tariff filing requirements. The new e-filing tariff procedures will also allow the public to easily access current and historical tariffs without requesting them from the Board, resulting in time and cost savings for both the Board and the public. The text of the final rule is below.

Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. Sections 601-604. In its final rule, the agency must either include a final regulatory flexibility analysis, section 604(a), or certify that the final rule would not have a “significant impact on a substantial number of small entities,” section 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

In the NPRM, the Board certified under 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. 11 The Board explained that the proposed rule would not place any additional burden on small entities because the proposed rule would provide new procedures for water carriers operating in noncontiguous domestic trade to electronically publish, file, and keep tariffs available for public inspection. The new regulations would be an option to eliminate the burdens associated with the current tariff filing requirements. No parties submitted comments on this issue. A copy of the NPRM was served on the U.S. Small Business Administration.

The final rule adopts the procedures proposed in the NPRM, with the revision of the due date for the annual certification. Therefore, the Board certifies under 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

Paperwork Reduction Act. In this proceeding, the Board is modifying an existing collection of information that is currently approved by the Office of Management and Budget (OMB) under OMB Control No. 2140-0026. In the NPRM, the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521, and OMB regulations at 5 CFR 1320.11 regarding: (1) Whether the collection of information associated with the proposed changes to the OFA regulations is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. No comments were received pertaining to the collection of this information under the PRA.

This modification to an existing collection will be submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11.

It is ordered:

1. The Board adopts the final rule as set forth in this decision. Notice of the adopted rule will be published in the Federal Register .

2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

3. This decision is effective June 8, 2019.

For the reasons set forth in the preamble, the Surface Transportation Board amends parts 1002 and 1312 of title 49, chapter X, of the Code of Federal Regulations as follows:

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in Amendment 7 to the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (Amendment 7) (79 FR 71510, December 2, 2014), and in accordance with implementing regulations. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

As a method for limiting fishing mortality on juvenile BFT, ICCAT recommends a tolerance limit on the annual harvest of BFT measuring less than 115 centimeters (cm) (45.3 inches) (straight fork length) to no more than 10 percent by weight of a Contracting Party's total BFT quota. Any overharvest of such tolerance limit from one year must be subtracted from the tolerance limit applicable in the next year or the year after that. NMFS implements this provision by limiting the harvest of school BFT (measuring 27 to less than 47 inches curved fork length) as appropriate to not exceed the 10-percent limit (127.3 mt) annually.

In 2018, NMFS implemented a final rule that established the U.S. BFT quota and subquotas consistent with ICCAT Recommendation 17-06 (83 FR 53191, October 11, 2018). The currently codified baseline U.S. quota is 1,247.86 metric tons (mt) (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). See § 635.27(a). The currently codified Angling category quota is 232.4 mt (127.3 mt for school BFT, 99.8 mt for large school/small medium BFT, and 5.3 mt for large medium/giant BFT).

The Angling category season opened January 1, 2019, and continues through December 31, 2019. The size classes of BFT are summarized in Table 1. Please note that large school and small medium BFT traditionally have been managed as one size class, as described below, i.e., a limit of one large school/small medium BFT (measuring 47 to less than 73 inches). Currently, the default Angling category daily retention limit of one school, large school, or small medium BFT applies (§ 635.23(b)(2)). This retention limit applies to HMS Angling and to HMS Charter/Headboat category permitted vessels (when fishing recreationally for BFT).

As defined at § 600.10, “charter boat” means a vessel less than 100 gross tons (90.8 mt) that meets the requirements of the U.S. Coast Guard to carry six or fewer passengers for hire ( i.e., uninspected) and “headboat” means a vessel that holds a valid Certificate of Inspection issued by the U.S. Coast Guard to carry passengers for hire ( i.e., greater than six).

Table 2 summarizes the recreational quota, subquotas, landings, and retention limit information for 2017 and 2018, by size class.

Under § 635.23(b)(3), NMFS may increase or decrease the Angling category retention limit for any size class of BFT after considering regulatory determination criteria provided under § 635.27(a)(8). Also under § 635.23(b)(3), recreational retention limits may be adjusted separately for specific vessel type, such as private vessels, headboats, or charter boats.

NMFS has considered all of the relevant determination criteria and their applicability to the change in the Angling category retention limit. The criteria and their application are discussed below.

NMFS considered the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)). Biological samples collected from BFT landed by recreational fishermen continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT would support the collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS considered the catches of the Angling category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii)). NMFS anticipates that the full 2019 Angling category quota would not be harvested under the default retention limit. As shown in Table 2, Angling category landings were approximately 73 percent of the 195.2-mt annual Angling category quota in 2017 and 49 percent of the 232.4-mt annual Angling category quota in 2018, including landings of 43 percent of the available school BFT quota in both years.

NMFS also considered the effects of the adjustment on the BFT stock and the effects of the adjustment on accomplishing the objectives of the FMP (§ 635.27(a)(8)(v) and (vi)). These retention limits would be consistent with the quotas established and analyzed in the 2018 BFT quota final rule, which implemented the ICCAT quota consistent with ATCA, and with objectives of the 2006 Consolidated HMS FMP and amendments, and is not expected to negatively impact stock health or to affect the stock in ways not already analyzed in those documents. It is also important that NMFS limit landings to the subquotas both to adhere to the FMP quota allocations and to ensure that landings are as consistent as possible with the pattern of fishing mortality ( e.g., fish caught at each age) that was assumed in the latest stock assessment.

Another principal consideration in setting the retention limit is the objective of providing opportunities to harvest the full Angling category quota without exceeding it based on the goals of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest their full BFT quota allocations (related to § 635.27(a)(8)(x)).

The 2018 school BFT landings represent 4 percent of the total U.S. quota for 2018, well under the ICCAT recommended 10-percent limit. Given that the Angling category landings fell short of the available quota and considering the regulatory criteria above, NMFS has determined that the Angling category retention limit applicable to participants on HMS Angling and HMS Charter/Headboat category permitted vessels should be adjusted upwards from the default levels. NMFS has also concluded that implementation of separate limits for private, charter boat, and headboat vessels is appropriate, recognizing the different nature, socio-economic needs, and recent landings results of the two components of the recreational BFT fishery. For example, charter operators historically have indicated that a multi-fish retention limit is vital to their ability to attract customers. In addition, Large Pelagics Survey estimates indicate that charter/headboat BFT landings averaged 26 percent of recent recreational landings for 2017 through 2018, with the remaining 74 percent landed by private vessels. NMFS has further concluded that a higher limit for headboats (than charter boats) is appropriate, given the limited number of headboats participating in the bluefin tuna fishery.

Given these considerations, for private vessels with HMS Angling category permits, this action adjusts the limit upwards to two school BFT and one large school/small medium BFT per vessel per day/trip ( i.e., two BFT measuring 27 to less than 47 inches, and one BFT measuring 47 to less than 73 inches). For charter boat vessels with HMS Charter/Headboat permits, this action adjusts the limit upwards to three school BFT and one large school/small medium BFT per vessel per day/trip when fishing recreationally for BFT ( i.e., three BFT measuring 27 to less than 47 inches, and one BFT measuring 47 to less than 73 inches). “Charter boat” means a vessel less than 100 gross tons (90.8 mt) that meets the requirements of the U.S. Coast Guard to carry six or fewer passengers for hire ( i.e., uninspected). For headboat vessels with HMS Charter/Headboat permits, this action adjusts the limit upwards to six school BFT and two large school/small medium BFT per vessel per day/trip when fishing recreationally for BFT ( i.e., three BFT measuring 27 to less than 47 inches, and one BFT measuring 47 to less than 73 inches). “Headboat” means a vessel that holds a valid Certificate of Inspection issued by the U.S. Coast Guard to carry passengers for hire ( i.e., greater than six). These retention limits are effective in all areas, except for the Gulf of Mexico, where NMFS prohibits targeted fishing for BFT. Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example, whether a private vessel (fishing under the Angling category retention limit) takes a two-day trip or makes two trips in one day, the day/trip limit of two school BFT and one large school/small medium BFT applies and may not be exceeded upon landing.

NMFS anticipates that the BFT daily retention limits in this action will result in landings during 2019 that would not exceed the available subquotas. Lower retention limits could result in substantial underharvest of the codified Angling category subquota, and increasing the daily limits further may risk exceeding the available quota, contrary to the objectives of the 2006 Consolidated HMS FMP and amendments. NMFS considered input on recreational limits from the HMS Advisory Panel at its March and September 2018 meetings. NMFS is not setting higher school BFT limits than the adjustments listed in Table 1 due to the potential risk of exceeding the ICCAT tolerance limit on school BFT and other considerations, such as potential effort shifts to BFT fishing as a result of current recreational retention limits for New England groundfish and striped bass.

NMFS will continue to monitor the BFT fisheries closely through the mandatory landings and catch reports. HMS Charter/Headboat and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.). Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments or closures are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

HMS Angling and HMS Charter/Headboat category permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. Anglers are also reminded that all BFT that are released must be handled in a manner that will maximize survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the daily retention limit for the remainder of 2019 at this time is impracticable. Based on available BFT quotas, fishery performance in recent years, and the availability of BFT on the fishing grounds, immediate adjustment to the Angling category BFT daily retention limit from the default levels is warranted to allow fishermen to take advantage of the availability of fish and of quota. NMFS could not have proposed these actions earlier, as it needed to consider and respond to updated data and information from the 2018 Angling category. If NMFS was to offer a public comment period now, after having appropriately considered that data, it would preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria, and/or could result in selection of a retention limit inappropriately high or low for the amount of quota available for the period.

Fisheries under the Angling category daily retention limit are currently underway and thus prior notice would be contrary to the public interest. Delays in increasing daily recreational BFT retention limit would adversely affect those HMS Angling and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one school, large school, or small medium BFT per day/trip and may exacerbate the problem of low catch rates and quota rollovers. Analysis of available data shows that adjustment to the BFT daily retention limit from the default level would result in minimal risks of exceeding the ICCAT-allocated quota. NMFS provides notification of retention limit adjustments by publishing the notice in the Federal Register , emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the Atlantic Tunas Information Line and on hmspermits.noaa.gov. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For these reasons, there also is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under § 635.23(b)(3), and is exempt from review under Executive Order 12866.