On February 13, 2019, the Office of Personnel Management (OPM) issued a proposed rule (84 FR 3729) that amends the special appropriated fund wage schedules for U.S. insular areas in § 532.259(a) of title 5, Code of Federal Regulations, to designate DOD as the sole lead agency for American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Midway, and the U.S. Virgin Islands. The Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on matters concerning the pay of Federal Wage System employees, recommended by consensus that we adopt these changes. The 30-day comment period ended on March 15, 2019, during which OPM received no comments.

This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review;” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.

Accordingly, the Office of Personnel Management amends 5 CFR part 532 as follows:

Discussion

On May 8, 2018, at 83 FR 20751, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS332C, AS332C1, AS332L, and AS332L1 helicopters, with a cabin sliding plug door installed in accordance with Airbus Helicopters modification (MOD) 0722338, except helicopters with a plug door jettison system installed in accordance with MOD 0725366. The NPRM proposed to require inspecting the jettisoning mechanism of the LH and RH cabin sliding plug doors. The proposed requirements were intended to prevent the cabin sliding door from failing to jettison, which could prevent helicopter occupants from evacuating the helicopter during an emergency.

The NPRM was prompted by EASA AD No. 2017-0022, dated February 8, 2017, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters (previously Eurocopter) Model AS332C, AS332C1, AS332L, and AS332L1 helicopters equipped with a cabin sliding plug door modified in accordance with MOD 0722338. Helicopters with Eurocopter MOD 0725366 are exempt from the EASA AD's requirements.

EASA advises that the emergency jettison test of a cabin lateral sliding plug door failed during a scheduled inspection and test of the door's jettison mechanism. According to EASA, an investigation revealed that the jettison handle cable interfered with the cable clamps. EASA states that this condition could lead to jamming of the door jettisoning mechanism, preventing jettisoning of the affected door during an emergency, possibly obstructing evacuation of the occupants. The EASA AD consequently requires repetitive inspections of the jettisoning mechanism of the LH and RH door, followed by corrective actions if needed.

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM.

Theses helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to our bilateral agreement with the European Union, EASA has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The EASA AD requires that the initial inspection occur during the next jettisoning test of the doors or within 110 flight hours, whichever occurs first, and thereafter during certain maintenance tasks. This AD requires a one-time inspection within 110 hours TIS or prior to flying over water.

We reviewed Airbus Helicopters Alert Service Bulletin No. AS332-52.00.56, Revision 0, dated January 30, 2017, which specifies pulling on the inner jettison handle to determine whether the cables come into contact with the cable clamps. If there is contact, this service information specifies changing the position of the cable clamps to prevent interference.

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 also reviewed Eurocopter Service Bulletin No. 332-52.00.28, Revision 1, dated April 29, 1998, which contains procedures to improve the door jettison system. Eurocopter identifies compliance with this service information as MOD 0725366.

We estimate that this AD affects 19 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect that inspecting the jettisoning mechanism and changing the orientation of the cable clamps, if necessary, requires 4 work-hours. No parts are required for a total cost of $340 per helicopter and $6,460 for the U.S. fleet.

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 helicopters identified in this rulemaking action.

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 to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

We issued AD 2018-17-01 (83 FR 42205, August 21, 2018) (“AD 2018-17-01”), for Bell Model 212, 412, 412CF, and 412EP helicopters with an engine oil check valve part number (P/N) 209-062-520-001 or fuel check valve P/N 209-062-607-001 manufactured by Circor Aerospace, marked “Circle Seal” and with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015), except a check valve marked “TQL” next to the manufacturing date code, installed. AD 2018-17-01 resulted from a report that certain P/N 209-062-520-001 check valves manufactured by Circor Aerospace as replacement parts have been found cracked or leaking on several Bell Model 427 and Model 429 helicopters. At the time we issued AD 2018-17-01, we understood that these check valves may also be installed as engine oil check valves on Bell Model 212, 412CF and 412EP helicopters. Similar check valves, P/N 209-062-607-001, may be installed as fuel check valves on Bell Model 212, 412, 412CF, and 412EP helicopters. These check valves may have a condition induced during assembly that can cause the valve body to crack, resulting in oil or fuel leakage. This condition could result in loss of lubrication or fuel to the engine, failure of the engine or a fire, and subsequent loss of control of the helicopter. Consequently, AD 2018-17-01 required replacing the engine oil check valves on Model 212, 412CF, and 412EP helicopters and replacing the fuel check valves on Model 212, 412, 412CF, and 412EP helicopters. AD 2018-17-01 also prohibited installing an affected check valve on any helicopter.

On August 27, 2018, before the comment period for AD 2018-17-01 closed, we received a comment from the Japan Civil Aviation Bureau (JCAB). We responded to the JCAB and briefly discussed AD 2018-17-01 by email. The JRCB's comment during these discussions is addressed below. A copy of each email contact can be found in the rulemaking docket for AD 2018-17-01 at http://www.regulations.gov in Docket No. FAA-2018-0738.

We gave the public the opportunity to comment on AD 2018-17-01 after it became effective. We received comments from one commenter.

The JCAB requested that we clarify why the requirement in AD 2018-17-01 to replace the engine oil check valves does not apply to Model 412 helicopters, when the Bell service information requires replacing the engine oil check valve in that model.

The omission of Model 412 helicopters from the requirement to replace the engine oil check valve was an error. We are issuing this AD to correct that error and to require replacing the engine oil check valve in all applicable model helicopters.

We reviewed Bell Alert Service Bulletin (ASB) 212-15-153, Revision A, dated October 6, 2017 (212-15-153), and Bell ASB 212-15-155, Revision A, dated October 6, 2017 (212-15-155), for Model 212 helicopters; Bell ASB 412-15-165, Revision A, dated October 6, 2017 (412-15-165), and Bell ASB 412-15-168, Revision A, dated October 6, 2017 (ASB 412-15-168), for Model 412 and 412 EP helicopters; and Bell ASB 412CF-15-57, Revision A, dated October 6, 2017 (412CF-15-57), and Bell ASB 412CF-15-59, Revision A, dated October 6, 2017 (412CF-15-59), for Model 412CF helicopters. ASB 212-15-153, ASB 412-15-165, and ASB 412CF-15-57 contain procedures for inspecting and replacing engine oil check valve P/N 209-062-520-001. ASB 212-15-155, ASB 412-15-168, and ASB 412CF-15-59 contain procedures for inspecting and replacing fuel check valve P/N 209-062-607-001. Revision A of the service information clarifies that check valves identified with “TQL” are not affected by the ASB procedures.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This AD requires within 25 hours time-in-service (TIS), replacing each fuel check valve and each engine oil check valve. This AD also prohibits installing on any helicopter a check valve P/N 209-062-520-001 or P/N 209-062-607-001 manufactured by Circor Aerospace, marked “Circle Seal” and with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015), except for a check valve marked “TQL” next to the manufacturing date code.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because we believe action is needed within 25 hours TIS, a short interval for helicopters used in firefighting and logging operations. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0953 and product identifier 2018-SW-079-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

We estimate that this AD affects 186 (93 Model 212 and 93 Model 412) helicopters of U.S. Registry. We estimate that operators will incur the following costs to comply with this AD:

At an average labor rate of $85 per work-hour, replacing one check valve (engine oil or fuel) will require about 1 work-hour and a parts cost of $85. For replacing four valves (two engine oil valves and two fuel valves), we estimate a total cost of $680 per helicopter and $126,480 for the U.S. fleet.

According to Bell's service information some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Bell. Accordingly, we have included all 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 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 part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

On August 21, 2018, at 83 FR 42232, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Bell Model 206A, 206B, 206L, 206L-1, 206L-3, 206L-4, and 407 helicopters. The NPRM proposed to require inspecting and cleaning the freewheel oil supply system, and if there is blockage in the restrictor, disassembling and inspecting the freewheel assembly for condition and wear. Additionally, for Model 206A, 206B, 206L, 206L-1, 206L-3, and 206L-4 helicopters, the NPRM proposed to require replacing the reducer with a filter, part number 50-075-1. The proposed requirements were intended to detect blockage in the restrictor, which could cause failure of the freewheel assembly, failure of the main rotor mast, and subsequent loss of control of the helicopter.

The NPRM was prompted by Transport Canada AD No. CF-2016-13, dated May 2, 2016 (AD No. CF-2016-13), issued by Transport Canada, which is the aviation authority for Canada, to correct an unsafe condition for Bell Model 206A, 206B, 206L, 206L-1, 206L-3, 206L-4, and 407 helicopters. Transport Canada advises that they have received two reports of torsional overload failure of the main rotor mast caused by a blocked restrictor in the freewheel lubrication system. Transport Canada states the restrictor may become contaminated during maintenance, causing blockage. Transport Canada further states that a blocked restrictor could cause the freewheel assembly to malfunction and result in failure of the main rotor mast and loss of control of the helicopter.

Additionally, the Canadian AD advises that although certain later versions of these helicopters are equipped with a filter in the freewheel lubrication system that is designed to trap contaminants and prevent blockage of the restrictor, installation of the filter does not guarantee the restrictor will remain free of contaminants. According to Transport Canada, one occurrence of restrictor blockage resulted from contaminants being introduced downstream from the filter, which subsequently caused failure of the freewheel assembly. For these reasons, AD No. CF-2016-13 requires inspecting and cleaning the restrictors and filters, and depending on helicopter model, replacing the reducer with a filter. Additionally, AD No. CF-2016-13 requires a repetitive on-condition cleaning and inspection of the freewheel oil supply system.

The NPRM stated the incorrect date of May 16, 2016, for AD No. CF-2016-13. The correct issue date is May 2, 2016. We have corrected the date throughout this Final Rule.

In addition, the “Costs of Compliance” section in the preamble of the NPRM incorrectly provides the estimated cost “per inspection cycle.” However, the inspection and cleaning requirements are one-time requirements. “Per inspection cycle” has been removed in this section of the Final Rule. In this regard, we have added a section titled “Differences Between this AD and the Transport Canada AD” to this Final Rule to advise that the Transport Canada AD contains repetitive requirements and this AD does not.

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative, has notified us of the unsafe condition described in its AD. We are issuing this AD because we evaluated all of the information provided by Transport Canada and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The Transport Canada AD includes a repetitive on-condition cleaning and inspection of the freewheel oil supply system any time the freewheel oil supply system is opened upstream of the restrictor. This AD does not require this type of repetitive on-condition cleaning and inspection because it could be difficult to track.

Bell has issued Alert Service Bulletin (ASB) 206-14-132 for Model 206A/B and TH-67 helicopters; ASB 206L-14-174 for Model 206L, 206L-1, 206L-3, and 206L-4 helicopters; and ASB 407-14-106 for Model 407 helicopters. Each ASB is Revision A and dated February 9, 2016. This service information specifies removing, cleaning, inspecting, and reinstalling certain freewheel assembly components. ASB 206-14-132 and ASB 206L-14-174 also contain procedures for replacing the reducer with a filter if not already installed.

We estimate that this AD affects 2,227 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD.

At an average labor rate of $85 per work-hour, inspecting and cleaning the freewheel oil supply system requires about 1 work-hour, for a cost per helicopter of $85 and $189,295 for the U.S. fleet.

If required, inspecting the freewheel assembly requires about 1 work-hour, for a cost per helicopter of $85.

If required, replacing a restrictor with a filter requires about 1 work-hour and required parts cost $125, for a cost per helicopter of $210.

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 helicopters identified in this rulemaking action.

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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

Authority for This Rulemaking

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 Denison Municipal Airport in support of standard instrument approach procedures for IFR operations at the airport.

The FAA published a notice of proposed rulemaking in the Federal Register (84 FR 5622; February 22, 2019) for Docket No. FAA-2019-0037 to amend Class E airspace extending upward from 700 feet above the surface at Denison Municipal Airport. 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 6.5-mile radius of Denison Municipal Airport, Denison, IA and within 2.0 miles each side of the 124° bearing from the Denison Municipal Airport extending from the 6.5-mile radius to 10.9 miles southeast of the airport. This action is necessary due to the decommissioning of the Denison NDB and for the safety and management of instrument flight rules (IFR) operations at the airport. Additionally, the geographic coordinates are being updated to coincide with the FAA's aeronautical database.

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:

Authority for This Rulemaking

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 removes Class E airspace extending upward from 700 feet above the surface at Morgan City, LA.

The FAA published a notice of proposed rulemaking in the Federal Register (84 FR 9260; March 14, 2019) for Docket No. FAA-2019-0107 to remove Class E airspace extending upward from 700 feet above the surface at Morgan City, LA. 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 removed from 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: Removing the Class E airspace extending upward from 700 feet or more above the surface of the earth at Morgan City, LA.

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:

In FR Doc. 2019-07290 appearing on page 14865 in the Federal Register of Friday, April 12, 2019, the following correction is made:

I. Table of Abbreviations CFR Code of Federal Regulations FR Federal Register OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking (Advance, Supplemental) §  Section U.S.C. United States Code II. Background Information and Regulatory History

On April 26, 2018, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; Delaware River, Burlington NJ and Bristol, PA” in the Federal Register (83 FR 18226). This temporary deviation was in place to facilitate bridge maintenance and painting of the vertical lift span of the drawbridge from May 1, 2018, through September 30, 2018. During the planned maintenance period, a work platform reduced one half of the bridge span vertical clearance to approximately 58 feet above mean high water in the closed position and approximately 132 feet above mean high water in the open position.

On August 9, 2018, the Coast Guard published a cancellation of the temporary deviation entitled “Drawbridge Operation Regulation; Delaware River, Burlington NJ and Bristol, PA” in the Federal Register (83 FR 18226). The temporary deviation was cancelled due to delays in performing bridge maintenance outside the navigation span, thereby eliminating the need for maintaining the temporary deviation. Due to the cancellation of the work, the platform was not installed and the bridge is operating under its regular operating schedule in 33 CFR 117.716(a). In accordance with 33 CFR 117.35(e), the drawbridge was returned to its regular operating schedule immediately at the end of the cancellation date of the temporary deviation.

On March 1, 2019, the Coast Guard published a notice for proposed rulemaking entitled “Drawbridge Operation Regulation; Delaware River, Burlington, NJ and Bristol, PA” in the Federal Register (84 FR 6992). We received no comments on this rule.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499.

The SR 413/Burlington-Bristol Bridge across the Delaware River, mile 117.8, between Burlington, NJ and Bristol, PA, is a vertical lift span bridge, and has a vertical clearance of 61 feet above mean high water in the closed position and 135 feet above mean high water in the open position. The current operating schedule for the drawbridge is published in 33 CFR 117.716(a).

The Burlington County Bridge Commission, who owns and operates the SR 413/Burlington-Bristol Bridge across the Delaware River, mile 117.8, between Burlington, NJ and Bristol, PA, has requested this modification to allow the drawbridge to be maintained in the closed-to-navigation position to facilitate maintenance and painting of the vertical lift span of the drawbridge.

Under this temporary final rule, the drawbridge will be maintained in the closed-to-navigation position and open on signal if at least a two-hour notice is given, from June 19, 2019, through 7:59 a.m. on September 17, 2019. At all other times, the drawbridge will operate per 33 CFR 117.716 (a).

This temporary final rule is necessary to facilitate safe and effective bridge maintenance and painting of the vertical lift span of the drawbridge, while providing for the reasonable needs of navigation. Multiple work platforms will reduce the entire bridge span vertical clearance to approximately 58 feet above mean high water in the closed position and approximately 132 feet above mean high water in the open position. Maintenance personnel, equipment and materials will be located inside the work platforms while maintenance and painting is being performed. To facilitate an opening of the bridge, equipment and materials will need to be secured inside or removed from the work platforms and personnel will need to vacate the work platforms.

The Coast Guard provided a comment period of 30 days and no comments were received. No changes were made to the regulatory text of this temporary final rule.

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 protesters.

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, it 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 fact that vessels can still transit the bridge on signal if at least two-hour notice is given.

The Regulatory Flexibility Act of 1980 (RFA), 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 rule. 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 bridge 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 , above.

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 calls for no 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.

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 Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction. A Record of Environmental Consideration and a Memorandum for the Record are not required for this rule.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

The Coast Guard will enforce the safety zone described in 33 CFR 165.801, Table 5, line 2, as the St. John the Baptist Independence day fireworks display event from 8:45 p.m. through 9:45 p.m. on July 3, 2019. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801, specifies the location of the regulated area for the St. John the Baptist Independence day fireworks display between mile markers 137.5 and 138.5 on the Mississippi River near Reserve, Louisiana. During the enforcement period, as reflected in § 165.801(a)-(d), if you are the operator of a vessel in the safety zone, you must comply with directions from the Captain of the Port Sector New Orleans or a designated representative.

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 and marine information broadcasts.

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. It is impracticable to publish an NPRM because we must establish this safety zone by May 24, 2019, and we lack sufficient time to provide reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety.

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

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with a fireworks display taking place over this section of the Kanawha River will be a safety concern for anyone within a one-mile stretch of the waterway. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the scheduled fireworks display.

This rule establishes a temporary safety zone for the Live on the Levee fireworks display from 9:15 p.m. until 10:15 p.m. on May 24, 2019. The safety zone covers all navigable waters of the Kanawha River from mile marker (MM) 58.1 to MM 59.1, in Charleston, WV. The duration of this safety zone is intended to protect persons, vessels, and the marine environment in these navigable waters during the fireworks display.

No vessel or person is permitted to enter this safety zone without obtaining permission from the COTP or a designated representative. A designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port Sector Ohio Valley. To seek permission to enter, contact the COTP or designated representative via radio on channel 16 or by telephone at 1-800-253-7465. If permission is granted, all persons and vessels shall transit at their slowest safe speed and comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of any changes in the date and times of enforcement through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Safety Marine Information Broadcasts (SMIBs), as appropriate.

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

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

This regulatory action determination is based on the size, location, and duration of the temporary safety zone. This rule involves a temporary safety zone lasting only one hour and thirty minutes that will prohibit entry on a one-mile stretch of the Kanawha River on one evening. Moreover, the Coast Guard will issue a BNMs via VHF-FM marine channel 16 about the safety zone, and the rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies 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 temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only one hour that will prohibit entry on a one-mile stretch of the Kanawha River on one evening. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish these security zones by May 14, 2019 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to provide for the security of the vessel.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with Liquefied Natural Gas Carrier (LNGC) CADIZ KNUTSEN between May 14, 2019 and May 20, 2019 will be a security concern while the vessel is moored at the receiving facility and within a 500-yard radius of the vessel while the vessel is loaded with cargo.

This rule establishes two security zones around LNGC CADIZ KNUTSEN from May 14, 2019 through May 20, 2019. A fixed security zone will be in effect in the mooring basin bound by 27°52′53.38″ N, 097°16′20.66″ W on the northern shoreline; thence to 27°52′45.58″ N, 097°16′19.60″ W; thence to 27°52′38.55″ N, 097°15′45.56″ W; thence to 27°52′49.30″ N, 097°15′45.44″ W; thence west along the shoreline to 27°52′53.38″ N, 097°16′20.66″ W, while LNGC CADIZ KNUTSEN is moored. A moving security zone will cover all navigable waters within a 500-yard radius of the LNGC CADIZ KNUTSEN while the vessel transits outbound with cargo through the La Quinta Channel and Corpus Christi Ship Channel. No vessel or person will be permitted to enter the security zones without obtaining permission from the COTP or a designated representative.

Entry into these security zones is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Corpus Christi. Persons or vessels desiring to enter or pass through the zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 361-939-0450. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs) of the enforcement times and dates for these security zones.

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 location of the security zone. This rule will impact a small designated area of the Corpus Christi Ship Channel and La Quinta Channel while the vessel is moored at the receiving facility and during the vessel's transit while loaded with cargo. Moreover, the Coast Guard will issue BNMs via VHF-FM marine channel 16 about the zones and the rule allows vessels to seek permission to enter the zones.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary fixed security zone while LNGC CADIZ KNUTSEN is moored at the receiving facility mooring basin bound by 27°52′53.38″ N, 097°16′20.66″ W on the northern shoreline; thence to 27°52′45.58″ N, 097°16′19.60″ W; thence to 27°52′38.55″ N, 097°15′45.56″ W; thence to 27°52′49.30″ N, 097°15′45.44″ W; thence west along the shoreline to 27°52′53.38″ N, 097°16′20.66″ W, and a temporary moving security zone while the vessel transits with cargo within the La Quinta Channel and Corpus Christi Ship Channel, that will prohibit entry within 500-yard radius of LNGC CADIZ KNUTSEN. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard will enforce the safety zone in 33 CFR 165.1305 for the Tacoma Freedom Fair Air Show from noon until 4 p.m. on both July 3, 2019 and July 4, 2019. This action is being taken to provide for the safety of life on navigable waters during the air show.

The safety zone resembles a rectangle protruding from the shoreline along Ruston Way and will be marked by the event sponsor. The specific coordinates of the safety zone location is listed in 33 CFR 165.1305.

As specified in §  165.1305(c), during the enforcement period, no vessel may enter this regulated area without approval from the Captain of the Port Sector Puget Sound (COTP) or a COTP designated representative. The Captain of the Port may be assisted by other federal, state and local law enforcement agencies in enforcing this regulation.

In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide the maritime community with advanced notification of enforcement of the safety zone via the Local Notice to Mariners and marine information broadcasts on the day of the event. If the COTP determines that the safety zone need not be enforced for the full duration stated in this notice of enforcement, she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

This rulemaking amends 38 CFR part 0 to add Customer Experience Principles to Subpart A. Maintaining a sustained organizational commitment to, and institutionalized focus on, the voice of the customer is a critical component of modernizing VA to meet the needs and expectations of Veterans, their families, caregivers, and survivors. VA is privileged to serve a vast and diverse population: In Fiscal Year (FY) 2018 VA had 9.15 million enrollees in VA health care; 4.74 million Veterans receiving VA disability compensation (as of September 30, 2018); 3.12 million active VA home loan participants (as of September 30, 2018); and 946,829 VA education beneficiaries (FY17). With hundreds of facilities and over 350,000 employees, VA must provide consistent and exceptional experiences to every customer across all the different ways in which Veterans, servicemembers, their families, caregivers, and survivors interact with VA. Codifying these principles will ensure that they receive the proper emphasis at all levels within VA, are clearly understood by the workforce, and, most importantly, become an enduring part of the VA culture. Adding Customer Experience Principles to the Core Values and Characteristics further demonstrates that VA is a people-centric organization.

This final rule establishes internal guidelines relating to agency practice or procedure and sets forth general statements of agency policy. Accordingly, it is exempt from the prior notice-and-comment requirements of the Administrative Procedure Act pursuant to 5 U.S.C. 553(b)(A). Also, because this final rule only establishes internal guidelines relating to agency practice or procedure and sets forth general statements of agency policy, VA finds application of the delayed-effective-date requirement of 5 U.S.C. 553(d) is unnecessary, and consequently there is good cause to exempt this rule from that requirement in accordance with 5 U.S.C. 553(d)(3).

Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable to this rulemaking because notice of proposed rulemaking is not required. 5 U.S.C. 601(2), 603(a), 604(a). In any event, the Secretary hereby certifies that this rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http:// www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.” This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

There are no Catalog of Federal Domestic Assistance program numbers for this rule.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on April 8, 2019, for publication.

For the reasons stated in the preamble, Department of Veterans Affairs amends 38 CFR part 0 as follows:

In FR Doc. 2019-08991 appearing on page 18731 in the Federal Register of Thursday, May 2, 2019, the following corrections are made:

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

On January 30, 2014, the EPA promulgated a final rule titled, “Approval, Disapproval and Promulgation of Implementation Plans; State of Wyoming; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze,” approving, in part, a regional haze SIP revision submitted by the State of Wyoming on January 12, 2011. 1 In the final rule, the EPA also disapproved, in part, the Wyoming regional haze SIP, including the NO X BART emission limit of 0.21 lb/MMBtu (30-day rolling average) for Laramie River Units 1, 2 and 3, and promulgated a FIP that imposed a NO X BART emission limit of 0.07 lb/MMBtu (30-day rolling average) for each of the three Laramie River Units, among other actions.

On October 11, 2018, the EPA proposed to revise the FIP per the terms of the settlement agreement by amending the NO X and SO 2 emission limits for Laramie River. 2 Specifically, the EPA proposed to: (1) Revise the NO X emission limit and associated compliance date for Unit 1; (2) through a BART alternative, revise the NO X emission limits for Units 2 and 3, and add a SO 2 emission limit averaged annually across Units 1 and 2 along with the associated compliance dates; and (3) require selective catalytic reduction (SCR) on Unit 1 and selective non-catalytic reduction (SNCR) on Units 2 and 3. 3

The EPA also proposed to approve SIP revisions submitted by the State of Wyoming on April 5, 2018, that amended the SO 2 emissions reporting requirements for Laramie River Units 1 and 2 as they pertain to the Western Backstop Sulfur Dioxide Trading Program under 40 CFR 51.309. Wyoming was one of several states that elected to participate in the backstop trading program. The approved SIP revisions ensure that SO 2 emission reductions under the settlement agreement are not counted as reductions under the backstop trading program, and address how Basin Electric is required to calculate reportable SO 2 emissions, when Basin Electric is required to use the revised SO 2 emissions calculation method, and how the reported SO 2 emissions will be used within the context of the SO 2 emissions milestone inventory.

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes “as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.”  4

The EPA promulgated a rule to address regional haze on July 1, 1999. 5 The Regional Haze Rule (RHR) revised the existing visibility regulations  6 to integrate provisions addressing regional haze and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in the EPA's visibility protection regulations at 40 CFR 51.300 through 51.309. The EPA revised the RHR on January 10, 2017. 7

The CAA requires each state to develop a SIP to meet various air quality requirements, including protection of visibility. 8 Regional haze SIPs must assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. A state must submit its SIP and SIP revisions to the EPA for review and approval. Once approved, a SIP is enforceable by the EPA and citizens under the CAA; that is, the SIP is federally enforceable. If a state elects not to make a required SIP submittal, fails to make a required SIP submittal, or if we find that a state's required submittal is incomplete or not approvable, then we must promulgate a FIP to fill this regulatory gap. 9

Section 169A of the CAA directs states as part of their SIPs, or the EPA when developing a FIP in the absence of an approved regional haze SIP, to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states' implementation plans to contain such measures as may be necessary to make reasonable progress toward the natural visibility goal, including a requirement that certain existing major stationary sources built between 1962 and 1977 procure, install and operate the “best available retrofit technology” as determined by the states through their SIPs, or as determined by the EPA when it promulgates a FIP. Under the RHR, states (or the EPA) are directed to conduct BART determinations for such “BART-eligible” sources that may reasonably be anticipated to cause or contribute to any visibility impairment in a Class I area. 10 Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART. 11

An alternative program to BART must meet requirements under 40 CFR 51.308(e)(2) and (3). In order to demonstrate that the alternative program achieves greater reasonable progress than source-specific BART, a state, or the EPA if developing a FIP, must demonstrate that its SIP meets the requirements in 40 CFR 51.308(e)(2)(i) through (v). The state or the EPA must conduct an analysis of the best system of continuous emission control technology available and the associated reductions for each source subject to BART covered by the alternative program, commonly referred to as a “BART benchmark.” Visibility improvement under the BART benchmark is compared to improvement under an alternative using one of the three tests described below to determine whether that alternative achieves greater reasonable progress than source-specific BART. Where the alternative program has been designed to meet requirements other than BART, simplifying assumptions may be used to establish a BART benchmark.

Pursuant to 40 CFR 51.308(e)(2)(i)(E), the state or the EPA must also provide a determination that the alternative program achieves greater reasonable progress than BART under 40 CFR 51.308(e)(3) or otherwise based on the clear weight of evidence. Title 40 CFR 51.308(e)(3), in turn, provides specific tests applicable under specific circumstances for determining whether the alternative achieves greater reasonable progress than BART. If the distribution of emissions for the alternative program is not substantially different than for BART, and the alternative program results in greater emissions reductions of each of the pollutants covered by the alternative, then the alternative program may be deemed to achieve greater reasonable progress. If the distribution of emissions is significantly different, the differences in visibility between BART and the alternative program must be determined by conducting air quality modeling and evaluating visibility impacts on the best and worst 20 percent of days at each impacted Class I area. The modeling demonstrates “greater reasonable progress” if both of the two following criteria are met: (1) Visibility does not decline in any Class I area; and (2) there is overall improvement in visibility when comparing the average differences between BART and the alternative program across all the affected Class I areas. Alternatively, pursuant to 40 CFR 51.308(e)(2)(i)(E), states may show that the alternative achieves greater reasonable progress than the BART benchmark “based on the clear weight of evidence” determinations. 12

Generally, a SIP or FIP addressing regional haze must include emission limits and compliance schedules for each source subject to BART. In addition to the RHR's requirements, general SIP requirements mandate that the SIP or FIP include all regulatory requirements related to monitoring, recordkeeping, and reporting for the alternative's enforceable requirements. See CAA section 110(a); 40 CFR part 51, subpart K.

In addition to BART requirements, as mentioned previously, each regional haze SIP or FIP must contain measures as necessary to make reasonable progress towards the national visibility goal. Finally, the SIP or FIP must calculate reasonable progress goals (RPGs) for each Class I area within the state for the plan implementation period (or “planning period”), based on the measures included in the long-term strategy for making reasonable progress. 13 If an RPG provides for a slower rate of improvement in visibility than the rate under which the national goal of no anthropogenic visibility impact would be attained by 2064, the SIP or FIP must demonstrate, based on the four reasonable progress factors, why that faster rate is not reasonable and the slower rate provided for by the SIP or FIP's state-specific RPG is reasonable. 14

The RHR requires that a state, or the EPA if promulgating a FIP that fills a gap in the SIP with respect to this requirement, consult with FLMs before adopting and submitting a required SIP or SIP revision, or a required FIP or FIP revision. 15 Further, the EPA, or state when considering a SIP revision, must include in its proposal a description of how it addressed any comments provided by the FLMs.

The EPA's RHR provides two paths to address regional haze. One is 40 CFR 51.308, requiring states to perform source-specific BART determinations (or adopt a BART alternative that achieves greater visibility improvement than BART) and determine what additional measures are necessary to make reasonable progress. The other method for addressing regional haze is through 40 CFR 51.309, and is an option for nine states termed the “Transport Region States,” which include: Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah and Wyoming. By meeting the requirements under 40 CFR 51.309, a Transport Region State can be deemed, for the purposes of the first implementation period, to be making reasonable progress toward the national goal of achieving natural visibility conditions for the 16 Class I areas on the Colorado Plateau. 16

Section 309 requires those Transport Region States that choose to participate to adopt regional haze strategies that are based on recommendations from the Grand Canyon Visibility Transport Commission (GCVTC) for protecting the 16 Class I areas on the Colorado Plateau. The purpose of the GCVTC was to assess information about the adverse impacts on visibility in and around the 16 Class I areas on the Colorado Plateau and to provide policy recommendations to the EPA to address such impacts. The GCVTC determined that all Transport Region States could potentially impact the Class I areas on the Colorado Plateau. The GCVTC submitted a report to the EPA in 1996 for protecting visibility for the Class I areas on the Colorado Plateau, and the EPA codified these recommendations as an option available to states as part of the RHR. 17

The EPA determined that the GCVTC strategies would provide for reasonable progress in mitigating regional haze if supplemented by an annex containing quantitative emission reduction milestones and provisions for a trading program or other alternative measure. 18 In September 2000, the Western Regional Air Partnership (WRAP), which is the successor organization to the GCVTC, submitted an annex to the EPA. The annex contained SO 2 emissions reduction milestones and detailed provisions of a backstop trading program to be implemented automatically if voluntary measures failed to achieve the SO 2 milestones. The EPA codified the annex on June 5, 2003, at 40 CFR 51.309(h). 19

Five western states, including Wyoming, submitted implementation plans under section 309 in 2003. 20 The EPA was challenged by the Center for Energy and Economic Development (CEED) on the validity of the annex provisions. In CEED v. EPA, the U.S. Court of Appeals for the District of Columbia vacated the EPA's adoption of the WRAP annex. 21 In response to the court's decision, the EPA rescinded the annex requirements adopted under 40 CFR 51.309(h), but left in place the stationary source requirements in 40 CFR 51.309(d)(4). 22 The requirements under 40 CFR 51.309(d)(4) contain general requirements pertaining to stationary sources and market trading, and allow states to adopt alternatives to source-specific BART.

Thus, rather than requiring source-specific BART controls as explained previously in Section II.B, states have the flexibility to adopt an emissions trading program or other alternative program if the alternative provides greater reasonable progress than would be achieved by the application of BART, pursuant to 40 CFR 51.308(e)(2). Under 40 CFR 51.309, some states can satisfy the SO 2 BART requirements by adopting SO 2 emissions milestones and a backstop trading program. Under this approach, states must establish declining SO 2 emissions milestones for each year of the program through 2018. The milestones must be consistent with the GCVTC's goal of 50 to 70 percent reduction in SO 2 emissions by 2040. The backstop trading program would be implemented if a milestone is exceeded and the program is triggered. 23

The EPA routinely uses models as a part of our analytical methodology to provide for regularity, uniformity and to inform our decision-making process. The CAMx model is one such dispersion model and in particular it is a photochemical grid model  24 that uses and produces complex scientific data, including emissions from all sources, with a realistic representation of formation, transport, and processes that cause visibility degradation, estimating downwind concentrations paired in space and time. The EPA's guidance supports use of this particular model for this application. 25 The CAMx model simulates air quality over many geographic scales and treats a wide variety of inert and chemically active pollutants, including ozone, particulate matter, inorganic and organic PM 2.5 /PM 10 , mercury and other toxics. CAMx also has plume-in-grid and source apportionment capabilities. 26 At this point in time, use of a photochemical grid model is the best available method for predicting visibility improvement.

CAMx has a scientifically current treatment of chemistry to simulate transformation of emissions into visibility-impairing particles of species such as ammonium nitrate and ammonium sulfate and is often employed in large-scale modeling when many sources of pollution and/or long transport distances are involved. Photochemical grid models like CAMx include all emissions sources and have realistic representation of formation, transport and removal processes of the particulate matter that causes visibility degradation.

The starting point for assessing visibility impacts for different levels of emissions from Laramie River was the Three-State Air Quality Modeling Study (3SAQS) modeling platform that provides a framework for addressing air quality impacts in Colorado, Utah and Wyoming. The 3SAQS is a publicly available platform intended to facilitate air resources analyses. The 3SAQS developed a base year modeling platform using the year 2008 to leverage work completed during the West-wide Jump-start Air Quality modeling study (WestJump), which covered the entire western United States. For the Laramie River modeling, AECOM reduced the modeling domain to an area within 500 kilometers of the facility and performed additional modeling to refine the modeling domain from the 3SAQS 12-kilometer (km) grid resolution to a finer 4-km grid resolution. The refined spatial resolution was used to more accurately simulate the concentration gradients of gas and particulate species in the plumes emitted from the source facilities.

The CAMx modeling analysis established specific model configurations and other inputs. The model requires configuration and input data such as defined horizontal and vertical modeling domains, 27 gridded meteorological data, emissions data, and a set of files for the physical and chemical reaction calculations. 28 Meteorological inputs were developed using the Weather Research and Forecast (WRF) Model. 29 The Sparse Matrix Operator Kernal Emissions (SMOKE) model was used for emissions inputs. SMOKE is an emissions processing system that converts emission inventory data into the formatted emissions files required by an air quality simulation model. 30 Collectively the three models are referred to as the CAMx modeling system. 31

The three modeling scenarios conducted were:

• Baseline Scenario. This scenario included the actual emission rates for all three units of LRS during the 2001 to 2003 period. 32

• EPA FIP Scenario (BART). This scenario included the emission rates for all three units of Laramie River Station that correspond to the EPA proposed FIP control strategy. 33

• Basin Electric Scenario (BART alternative). This scenario included the emission rates for all three units of Laramie River Station that correspond to an alternative control strategy proposed by Basin Electric. 34

For the two-prong test, an existing projected 2020 emissions database was used to estimate emissions of sources within the modeling domains. The existing 2020 database was derived from the 3SAQS study, which projected emissions from 2008 to 2020. Since the BART alternative emissions reductions would not be fully in place until the end of 2018, the 2020 emissions projections are more representative of the air quality conditions that will be obtained while the BART alternative is being implemented than the 2008 database. In the three 2020 CAMx modeling scenarios, Laramie River emissions were modeled to represent the baseline, the BART 2014 FIP, and the proposed BART alternative.

The CAMx-modeled concentrations for sulfur, nitrogen, and primary particulate matter (PM) were tracked using the CAMx Particulate Source Apportionment Technology (PSAT) tool so that the concentrations and visibility impacts due to Laramie River could be separated out from those due to the total of all other modeled sources. AECOM computed visibility impairment due to Laramie River using the EPA's Modeled Attainment Test Software (MATS) tool which bias corrects CAMx outputs to available measurements of PM species and uses the revised Interagency Monitoring of Protected Visual Environments (IMPROVE) equation to calculate the 20 percent best and 20 percent worst days for visibility impacts. 35 Finally, a typical year modeling scenario (2008) was developed to enable calculation of the Relative Response Factors (RRF), 36 which were developed from monitoring data and used along with the EPA's MATS to correct for bias in the visibility results. 37

On January 30, 2014, the EPA promulgated a final rule titled, “Approval, Disapproval and Promulgation of Implementation Plans; State of Wyoming; Regional Haze State Implementation Plan; Federal Implementation Plan for Regional Haze,” approving, in part, a regional haze SIP revision submitted by the State of Wyoming on January 12, 2011. 38 In the final rule, the EPA also disapproved, in part, the Wyoming regional haze SIP, including the SIP NO X BART emission limit of 0.21 lb/MMBtu (30-day rolling average) for each of the three Laramie River Units, and promulgated a FIP that imposed a NO X BART emission limit of 0.07 lb/MMBtu (30-day rolling average) at each of the three Laramie River Units.

The Laramie River Station is in Platte County, Wyoming, and is comprised of three 550 megawatt (MW) dry-bottom, wall-fired boilers (Units 1, 2 and 3) burning subbituminous coal for a total net generating capacity of 1,650 MW. All three units are within the statutory definition of BART-eligible units and were determined to be subject to BART by Wyoming.

Basin Electric, the State of Wyoming, and others challenged the final rule. Basin Electric and Wyoming challenged our action as it pertained to the NO X BART emission limits for Laramie River Units 1, 2 and 3. 39 After mediated discussions through the U.S. Court of Appeals for the Tenth Circuit's Mediation Office, Basin Electric, Wyoming and the EPA reached a settlement in 2017 that, if fully implemented, would address all of Basin Electric's challenges to the 2014 final rule and Wyoming's challenges to the portion of the 2014 final rule regarding NO X BART emission limits for Laramie River Units 1, 2 and 3. 40 41

The settlement agreement required the EPA to propose a FIP revision to include three major items:

• First, an alternative (BART alternative) to the NO X BART emission limits in the EPA's 2014 FIP that includes:

○ Revised NO X emission limits for Laramie River Units 2 and 3 of 0.15 lb/MMBtu (30-day rolling average) commencing December 31, 2018, with an interim limit of 0.18 lb/MMBtu (30-day rolling average) commencing the date that the EPA's final revised FIP becomes effective and ending December 31, 2018; and

○ A new SO 2 emission limit for Laramie River Units 1 and 2 of 0.12 lb/MMBtu (annual) averaged annually across the two units commencing December 31, 2018.

• Second, a revised NO X emission limit for Laramie River Unit 1 of 0.06 lb/MMBtu on a 30-day rolling average commencing July 1, 2019, with an interim limit of 0.18 lb/MMBtu on a 30-day rolling average commencing the date that the EPA's final revised FIP becomes effective and ending June 30, 2019. 42

• Third, installation of SCR on Laramie River Unit 1 by July 1, 2019, (thereby revising the compliance date of the existing FIP) and installation of SNCR on Units 2 and 3 by December 30, 2018.

In accordance with other terms of the 2017 settlement, Wyoming submitted a SIP revision to the EPA on April 5, 2018, to revise the SO 2 annual reporting requirements for Laramie River Units 1 and 2 as they pertain to the backstop trading program under 40 CFR 51.309. Specifically, Wyoming determined that Basin Electric must use SO 2 emission rates of 0.159 lb/MMBtu for Laramie River Unit 1 and 0.162 lb/MMBtu for Laramie River Unit 2 and multiply those rates by the actual annual heat input during the year for each unit to calculate and report emissions under the SO 2 backstop trading program. The revisions ensure that the SO 2 emissions reductions that are part of the BART alternative for Units 1 and 2 are not double-counted as reductions under the backstop trading program.

We received seven comment submissions during the public comment period. After reviewing the comments, the EPA determined that four of the comments are outside the scope of our proposed action and fail to identify any material issue necessitating a response. One of the comments was a request to extend the comment period. 43 The remaining two comment letters—one from the National Parks Conservation Association, Powder River Basin Resource Council, Sierra Club, and Wyoming Outdoor Council (submitted collectively as the “Conservation Organizations”) and one from Basin Electric Power Cooperative—are summarized below with our responses.

According to the Conservation Organizations, the EPA failed to demonstrate that the BART alternative will achieve greater reasonable progress toward eliminating visibility impairment than would the implementation of BART and, as a result, the EPA may not finalize its proposed FIP revision for the following reasons:  44

Comment: The Conservation Organizations argue that the EPA's modeling is based on NO X emission rates that underestimate the visibility benefits of BART and overestimate the visibility benefits of the BART alternative. More specifically, the commenters argue, the EPA incorporated an inflated NO X emission rate for SCR in the BART scenario while failing to justify a low NO X emission rate for SNCR in the BART alternative, thereby biasing the analysis in favor of the BART alternative. According to the commenters, the comparison of the two scenarios must use a rational assessment of the emissions rates achievable with the controls constituting “the best system of continuous emission control technology available” for the relevant source(s), ( i.e., the BART benchmark and the BART alternative). 45 The EPA failed to conduct a rational assessment, the Conservation Organizations argue, when the EPA assumed SCR could achieve a controlled NO X annual emission rate of 0.05 lb/MMBtu when determining the BART scenario but using a controlled NO X annual emission rate of 0.04 lb/MMBtu under the BART alternative scenario thereby appearing to underestimate the visibility benefits of SCR in the BART benchmark. 46 Likewise, according to the commenters, the EPA failed to justify its assumption for the BART alternative NO X emission rate of 0.128 lb/MMBtu at Units 2 and 3 based on the operation of SNCR thereby appearing to overestimate the visibility benefits of the BART alternative. Specifically, it is not reasonable, according to the commenters, to apply the same percentage reduction from the NO X baseline emissions of 0.16 lb/MMBtu (as assumed for the proposed FIP revision) and 0.19 lb/MMBtu (as assumed in the 2014 FIP), because the control effectiveness of SNCR declines as baseline emission rates are reduced. Moreover, high furnace temperatures at Laramie River Station will further limit the possible NO X reduction. 47

Response: We disagree with the commenters' assertion that the EPA's modeling is based on NO X emission rates that underestimate the visibility benefits of BART and overestimate the visibility benefits of the BART alternative. We also disagree that our selection of NO X emission rates biased the analysis in favor of the BART alternative.

Regarding the NO X emission rate achievable with SCR, we disagree that we incorporated an inflated NO X emission rate or an “apples-to-oranges” comparison in the BART scenario. Instead, we used the emission limits that would be enforceable under the BART and BART alternative scenarios, respectively. For the BART scenario, we used the NO X emission limit of 0.07 lb/MMBtu (30-day rolling average) which we determined to be BART in our 2014 FIP, reflecting the installation and operation of SCR. 48 49 50 For the BART alternative scenario, we used the enforceable NO X emission limit of 0.06 lb/MMBtu (30-day rolling average) that Basin Electric voluntarily agreed to for Unit 1 as part of the settlement agreement. 51 While the 0.06 lb/MMBtu NO X limit for Unit 1 is not a component of the BART alternative, it is part of the package of revised emission limits that is now being considered as a replacement for the 2014 BART determinations. In order to meet the 0.06 lb/MMBtu (30-day) limit, Basin Electric will incur additional costs that were not included in the 2014 FIP's BART determination. 52 We are unaware of any provision of the CAA or RHR that would prevent a source from voluntarily requesting, and subsequently being required to comply with, a more stringent enforceable emission rate than prescribed under BART, as is the case here.

Regarding the NO X emission rate achievable with SNCR, we disagree that we failed to justify our assumption that SNCR can achieve an emission rate of 0.128 lb/MMBtu (annual) at Units 2 and 3. 53 As noted in the modeling protocol underlying the BART alternative, the annual emission rate of 0.128 lb/MMBtu is derived from the baseline annual emission rate of 0.16 lb/MMBtu multiplied by an assumed 20 percent reduction with SNCR ( i.e., 0.16 lb/MMBtu × [1−20%/100%] = 0.128 lb/MMBtu). 54 As the EPA recognized in our 2014 FIP and we continue to recognize now, “the effectiveness of SNCR is highly dependent upon the characteristics of each boiler, and those characteristics include furnace temperature, furnace carbon monoxide (CO) concentration, NO X level and other factors, but furnace temperature, CO concentration, and NO X level are most important.”  55 Therefore, it is difficult to predict the exact percent reduction in NO X that can be achieved by SNCR at a given boiler. Accordingly, in support of the 2014 FIP we used an approximation of the NO X reduction achievable based on the NO X inlet concentration given as a range: 30 percent for NO X greater than 0.25 lb/MMBtu, 25 percent for NO X between 0.20 and 0.25 lb/MMBtu, and 20 percent for NO X under 0.20 lb/MMBtu. 56 57 Thus, the assumption that SNCR can reduce NO X by 20 percent when baseline NO X emissions are under 0.20 lb/MMBtu—whether at a baseline of 0.19 lb/MMBtu or 0.16 lb/MMBtu—is consistent with our 2014 FIP. Put more simply, we do not expect any meaningful difference in the control effectiveness of SNCR between an inlet NO X emission rate of 0.19 lb/MMBtu and 0.16 lb/MMBtu. Moreover, the assumption that SNCR can reduce NO X by 20 percent from an annual baseline of 0.16 lb/MMBtu is consistent with the updated chapter of the EPA's Control Cost Manual (CCM) for SNCR. 58 Based on observed data taken from utility boilers equipped with SNCR, Figure 1.1c of the SNCR chapter shows a relationship between the inlet NO X emissions (x; lb/MMBtu) and the NO X reduction (y; %) of y = 22.554x + 16.725. 59 For a baseline emission rate of 0.16 lb/MMBtu, the CCM equation yields an estimated NO X reduction of 20.3 percent, which is nearly identical to our assumed reduction of 20 percent.

In our 2014 FIP, we also addressed the impact of furnace temperature on the effectiveness of SNCR. We concluded that the high furnace temperatures would have a negative impact on reagent utilization, 60 we maintained that a 20 percent reduction in NO X would be achievable. 61 Here again, the commenter has not provided any new information or analysis that would support a different conclusion regarding high furnace temperatures, and we are not aware of any such information.

In turn, the baseline annual emission rate of 0.16 lb/MMBtu is based on actual emissions data taken from the EPA's Clean Air Markets Division database for calendar year 2014, the most recent calendar year for which emissions data was available when the modeling protocol for the BART alternative was developed in 2015. 62 Finally, we are neither aware of any new information nor has the commenter provided any new information or analysis that would support a different conclusion regarding the annual emission rate achievable with SNCR.

Accordingly, and in consideration of the points we make above, we find that we have provided a rational assessment of the emissions rates achievable with SCR and SNCR control technologies for both the BART and BART alternative scenarios.

Comment: The Conservation Organizations argue that the EPA used an outdated and unrepresentative temporal allocation of Laramie River Station's SO 2 and NO X emissions, which they assert may underestimate the plant's impacts in summer and winter months. Specifically, the modeling protocol allocated total annual emissions based on a fairly constant level of operations without seasonality. However, the commenters assert the data available in the EPA's Clean Air Markets Division database show SO 2 and NO X emissions since January 2015 exhibit strong seasonality. By neglecting to reflect this changing temporal emissions profile, the modeling fails to accurately project visibility impacts, according to the commenters, and therefore the EPA lacks a basis to determine that the BART alternative is better than BART. Additionally, the commenters' assert that AECOM inexplicably projected future year (2020) emissions using the 2007 National Emission Inventory (NEI), Modeling Protocol, at 2-11, rather than the more current 2011 NEI. The EPA must explain whether the use of an outdated emissions inventory may have impacted AECOM's modeling results.

Response: We disagree. As noted previously, the CAMx modeling leveraged the 3SAQS  63 as the starting point to assess visibility impacts from Laramie River Station. The 3SAQS developed a base year modeling platform for the year 2008 that was in turn used in the CAMx modeling for Laramie River Station. Emissions for all sources are the same in the 3SAQS 2008 study, except for Laramie River Station emissions. The modeling uses annual average 2001-2003 emissions for two reasons. 64 First, using 2001-2003 annual emissions provides consistency with the baseline emissions used in the CALPUFF modeling when establishing BART in the 2014 FIP. Second, it allows the modeling to show the visibility benefits of all NO X and SO 2 reductions that have or will occur between 2001-2003 and the future modeled year of 2020. In turn, the temporal profile is taken from the same years as the annual emissions (2001-2003) as it is intended to reflect temporal variation in daily emissions during that time. It would not be logical to apply a temporal profile reflective of 2015-2018 emissions data for the years 2001-2003 as the commenter proposes. Furthermore, as a practical matter, the 2015-2018 emissions data referenced by the commenter was not available when AECOM began development of the CAMX protocol in 2014, and so could not have been used to establish the temporal profile for Laramie River Station.

Regarding the year of the NEI used to project emissions to the future year of 2020, the initial 3SAQS platform used a base year of 2008, which was in turn the basis of the CAMx modeling. 65 A subsequent 3SAQS platform, using a base year of 2011 with 2011 NEI data, was developed. However, the 2011 3SAQS modeling platform was not yet available when AECOM began preparation of the CAMx modeling protocol in 2014. 66 Even still, for the reasons stated above, actual annual emissions from 2001-2003 were used for Laramie River Station. As such, the question of whether future year emissions were projected from the 2007 or 2011 NEI is relevant only to other sources included in the modeling, and the same emissions for the other sources were used in all three scenarios. Therefore, any errors in the emissions from other sources were mitigated by the fact that the CAMx results were used to compare the relative visibility improvements in BART and the BART alternative.

Finally, even if the EPA had used a more recent temporal profile or emissions inventory as suggested by the commenters, the commenters do not provide any evidence or analysis to support a conclusion that doing so would alter the outcome of the analysis ( i.e., that the BART alternative achieves greater reasonable progress).

Comment: Third, the commenters state that, for the reasons summarized below and detailed in a memorandum submitted with their comments, 67 the results from the EPA's Comprehensive Air Quality Model with Extensions (CAMx) modeling do not rationally support the EPA's proposed determination that the BART alternative would achieve greater reasonable progress than BART:

• The Badlands National Park experiences the greatest visibility impact from Laramie River Station emissions of all modeled Class I areas and would suffer adverse visibility impacts from the implementation of the BART alternative when compared to BART. Other modeled Class I areas up to or exceeding 500 kilometers (km) away offset the negative impact of the BART alternative on visibility in Badlands National Park.

• the CAMx modeling software lacks the necessary precision to make accurate concentration predictions when the sulfate concentrations are so small (on the order of 10 −4 to 10 −5 micrograms per cubic meter). While the model will produce a numerical value at this scale, the EPA's use of those values as precise measurements of sulfate concentrations under the modeled scenario is out of step with accepted protocols in the field of air dispersion modeling and fails to account for the inherent uncertainty in the model. Thus, the visibility benefit claimed for the BART alternative is not supportable.

• the results of the EPA's modeling  68 indicating measurable visibility impacts at the Yellowstone-region Class I areas because of the BART alternative are inconsistent with published data on pollutant trajectories that show sources in eastern Wyoming, where Laramie River Station is located, influence visibility in the western Wyoming Yellowstone area only once in approximately every 3 years. 69 Furthermore, the back-trajectories indicate that on the rare days when emissions would reach the Yellowstone region, they would first pass through and impact the Bridger and Fitzpatrick wilderness areas; yet on the days when the AECOM 2016 modeled visibility impacts at Yellowstone, it modeled zero impact at Bridger/Fitzpatrick.

Response: We disagree with the commenters' assertion that the CAMx modeling results do not support the EPA's proposed determination that the BART alternative would achieve greater reasonable progress than BART.

First, with respect to the commenters' assertions regarding the inclusion of Class I areas up to or exceeding 500 km, the inclusion of these Class I areas is consistent with previous analysis using CAMx simulations. 70 Whereas CALPUFF simulations have often been limited to 300 km (unless further considerations are taken into account in evaluating that modeling), due to the increasing potential for model error across long distances, CAMx more readily allows for the inclusion of more distant Class I areas. 71 Furthermore, while we recognize that visibility impact at Badlands National Park under the BART alternative scenario (0.0138 deciviews) was greater than the impact under the BART scenario (0.0131 deciviews) on the 20 percent best days, 72 the regional haze regulations do not require greater visibility improvements at every Class I area when comparing the BART alternative to BART. Instead, the regulations require that (1) visibility does not decline in any Class I area, 73 and (2) there is an overall improvement in visibility, determined by comparing the average differences between BART and the BART alternative over all affected Class I areas. Consistent with regulations, we determined that none of the Class I areas experienced a decline in visibility from the baseline under the BART alternative scenario, and there was a greater improvement in visibility under the BART alternative compared to BART averaged over all affected areas. 74

Second, with respect to the commenters' concerns regarding the precision of the CAMx modeling software, CAMx has a scientifically current treatment of chemistry to simulate transformation of emissions into visibility-impairing particles and its use for modeling cumulative air quality impacts in the U.S., including for regional haze SIPs, is well-established; CAMx has been used in several previous EPA assessments for evaluating greater reasonable progress. 75 While we agree with the commenters that modeling uncertainties such as correctly simulating the meteorological data fields are inherent to all air quality models and are not unique to CAMx, 76 we disagree that the visibility improvements associated with either the BART alternative or the BART scenario are not supportable due to these inherent and unavoidable uncertainties. The only changes among the modeling scenarios was due to different emission rates for the Laramie River Station. The uncertainties inherent in the model apply to both the BART and the BART alternative, and thus, while there is some uncertainty in the absolute visibility impacts and benefits, our use of CAMx here provides an accurate assessment of the relative improvement expected from two different control scenarios and whether the BART alternative is better than BART. Additionally, while commenters suggest the concentrations are out of step with accepted protocols, they fail to cite a specific protocol.

Indeed, given the highly complex nature of predicting how chemicals combine in the atmosphere and impact visibility, it is not surprising that the CAMx model performance is not completely precise and accurate. Comments with regard to CAMx precision and accuracy have been addressed in previous applications of CAMx for evaluating regional haze in FIPs and in SIPs. 77 Consistent with those applications of CAMx and the EPA's regulations and guidance, the CAMx modeling performed for this action used several approaches that specifically address concerns about precision and accuracy:

• CAMx modeled concentration results were processed in order to isolate the changes to visibility conditions as a result of emissions controls applied to the Laramie River Station. 78 To convert model concentrations into visibility estimates and account for quantifiable model bias, the EPA's Modeled Attainment Test Software (MATS) is used. 79 MATS is primarily intended as a tool to implement modeling for several CAA programs, including visibility for regional haze. 80 The use of MATS also helps mitigate model bias by pairing model estimates with actual measured conditions and adjusts the model predictions based on the measured concentrations. 81

• The CAMx Particulate Source Apportionment Technology (PSAT), one of the extension tools in CAMx, 82 was used in conjunction with MATS to isolate Laramie River Station's visibility impacts for each of the three modeled scenarios. 83 PSAT was used in the modeling analysis to tag and track the chemical transformations and transport of particulate matter (PM) precursor emissions from the Laramie River Station within the modeling domain, which is useful to understand model performance. 84 PSAT was used for each of three scenarios to track and account for particulate matter concentrations that originate or are formed as a result of emissions form Laramie River Station. 85 This approach substantially reduces the model numerical errors (sometimes referred to as “artifacts” associated with very small modeled pollutant concentrations) in the estimates of visibility impairment caused by the Laramie River Station and improves the precision in the model estimates of visibility benefits. As explained in the Appendix to the Final Report, AECOM also evaluated modeling artifacts and based on several factors determined that the PSAT analysis was not affected by modeling artifacts and thus could be appropriately used in assessing the merits of the scenarios. 86 The PSAT configuration setup used the following tracers: sulfur (sulfate tracers), nitrogen (nitrate and ammonium tracers) and primary PM (elemental carbon, organic aerosol, crustal PM tracers). 87 The results of the CAMx PSAT analysis are described in detail in the supporting documentation. 88

• Concerns about model accuracy and bias are further addressed in the modeling analysis by using the scaling factors called RRF to correct model results for bias. 89 In the RRF approach, the impacts of each emissions control scenario on sulfate and nitrate are estimated by multiplying the model percent change in sulfate and nitrate in each control strategy simulation by the measured concentrations of sulfate and nitrate at the Class I areas. 90 This is the same approach that is used in all regulatory applications of CAMx for regional haze, ozone, and PM 2.5 SIPs and FIPs. 91

Additionally, both qualitative and quantitative model performance evaluations were performed to determine whether the meteorological fields were sufficiently accurate for the model to properly characterize the transport, chemistry, and removal processes. The model performance evaluation study concluded that the application exhibited reasonably good model performance that was as good or better than other recent prognostic model applications used in air quality planning. 92 Finally, a number of quality assurance files were prepared and used to check for errors in the emission inputs. 93

While the CAMx PSAT, RRF and other methodologies do not fully eliminate all model error, these techniques do correct for errors and bias consistently for each emissions control scenario evaluated here, and this increases confidence that the model results are reliable in estimating greater relative benefits for the BART alternative scenario compared to the BART scenario. Additionally, the EPA's chosen visibility modeling need not be perfect, but only reasonable, 94 and it was reasonable to use the CAMx model, which is a satisfactory predictive tool, to ascertain whether it is more likely than not that the BART alternative is better than the BART scenario, information essential to inform the EPA's analysis and decision-making. Moreover, 40 CFR 51.308(e)(3) allows for a straight numerical test regardless of the magnitude of the computed differences and does not specify a minimum delta deciview difference between the modeled scenarios that must be achieved for a BART alternative to achieve greater reasonable progress than BART. Furthermore, the BART versus BART alternative visibility impacts presented here represent average impacts from two periods (the 20 percent best days and 20 percent worst days). Thus, some of the individual day impacts are much larger than reflected in the average and “measure” larger impacts than implied here.

Finally, we disagree with the commenters' statement that pollutant trajectories for air masses reaching the Yellowstone region are not accurately reflected in the modeling. The commenter claims that “[p]ublished back-trajectories list the frequency of transport for Laramie River Station emissions toward Yellowstone and nearby areas at essentially zero (less than one day every 3 years)” and argues that therefore, the CAMx modeling overestimates the benefits of any emissions control scenarios in the Yellowstone region. To support this claim, the commenter provided an extended abstract titled “Preliminary Back Trajectory Analysis of GrandTReNDS Reactive Nitrogen” that was presented at a 2014 Air & Waste Management Association conference. However, we find the extended abstract does not support the commenters' claims for several reasons. The commenters' extended abstract relied on mean 24-hour data, and the abstract concluded that “[s]trong diurnal patterns in the winds in this region mean 24-hour data are probably not adequate for source apportionment analyses”  95 and noted that the commenter intended to address this limitation by using 4 kilometer (km) resolution weather research and forecast (WRF) data that would be available in the future, which were both used in the CAMx modeling. Finally, we note that on page 13 of the extended abstract, the plots show relatively greater transport from eastern Wyoming to Yellowstone on the lowest concentration days at Yellowstone, which is consistent with the finding in the CAMx modeling that the Laramie River Station can contribute to visibility impairment on the best visibility days at Yellowstone.

Furthermore, the CAMx modeling uses the finer and more accurate 4 km resolution WRF meteorological modeling that was evaluated against surface meteorological observations of wind speed, wind direction, temperature and humidity. 96 Contrary to the commenters' assertions, the 4 km WRF CAMx modeling results indicate that there were days on which wind trajectories transported emissions from the Laramie River Station to the Yellowstone region. 97 Thus, we do not find that there is adequate evidence to support the commenters' assertion that the Laramie River Station does not contribute to visibility impairment in the Yellowstone region.

Comment: Finally, the commenters argue that multiple features of the EPA's modeling exacerbate the uncertainty inherent in CAMx and compound the unreliability of the results on which the EPA relies upon in its BART alternative determination, including:  98

• The inherent inaccuracies of the CAMx model are multiplied at large transport distances, which further undermines the EPA's reliance on extremely small modeled visibility benefits and associated changes in pollutant concentrations to conclude that the BART alternative improves visibility at these locations;

• the EPA utilized modeled results from Yellowstone to quantify purported visibility benefits at multiple Class I areas that lack their own IMPROVE monitors, which further compounds the errors introduced by the Yellowstone results; and

• the use of the particulate source apportionment technology (PSAT) to track emissions in the EPA's modeling further compounded the unreliability of modeled visibility “benefits” arising from the BART alternative as PSAT has been shown to overestimate the true sulfate contribution assigned to individual emission sources. Accordingly, PSAT likely introduced “false positives” in the model results by modeling visibility impacts from changing emissions at Laramie River Station under the BART alternative that would not bear out in reality.

Response: We disagree with the commenters' arguments that multiple features of our modeling, including large transport distances, lack of IMPROVE monitors, and the use of PSAT exacerbated the uncertainty inherent in CAMx and compounded the unreliability of the results on which we relied upon in our BART alternative determination. In fact, we utilized multiple tools, as discussed previously, to further evaluate the modeling results to determine whether the results represent “real” modeled visibility differences.

Specifically, it is true that in some geographic areas, single IMPROVE monitors represent multiple Class I areas, based on expected similarities between the airsheds (Figure 1). This approach is consistent with the EPA's Guidance for Tracking Progress Under the Regional Haze Rule that areas without a monitor are assigned a representative monitor, 99 and other requirements to include all Class I areas in the modeling domain. 100 Therefore, the Yellowstone IMPROVE monitor was used to represent several other Class I areas in the analysis. We note that the IMPROVE data from the nearby Class I area is used for the RRF correction for model bias for Class I areas that do not have a dedicated IMPROVE monitor. This nearby monitor approach is used by the EPA and states for all regulatory and planning requirements for Class I areas that lack IMPROVE monitors, and the estimates represent visibility improvements at these Class I areas. 101 Furthermore, without data showing the monitors are not representative, we have no reason to find that this assumption should not apply.

We disagree with the comment that PSAT has been shown to overestimate the true sulfate contribution assigned to individual emission sources and that PSAT likely introduced “false positives” in the model results of impacts from changing emissions at Laramie. The commenter did not cite any specific sources or studies that PSAT can introduce false positives. Moreover, we note that PSAT was subject to testing and evaluation by the model developer, 102 as well as for this particular application. 103 While the CAMx model and PSAT can at times be biased either high or low for sulfate, the model relative response factor approach, which has the effect of anchoring the future estimated visibility results to a “real” measured ambient value, 104 is used to help correct for model bias. Additionally, we note that any errors in the CAMx model will apply to both the BART and the BART alternative scenarios. Thus, the effects of any systematic errors in the model are mitigated by the fact that the CAMx and PSAT results are being used to compare the relative visibility improvements in the BART and BART alternative.

As supported by our preceding responses, it was reasonable for the EPA to: (1) Use the CAMx modeling results as the basis for our determination; and (2) rely on the results of the CAMx model that predicted a visibility improvement associated with the BART alternative relative to BART. 105

Our responses regarding the uncertainties associated with the CAMx model across large distances and “extremely small” modeled visibility benefits are found elsewhere in this document.

Finally, the commenters fail to provide an alternative analysis or basis demonstrating that any changes made to the commenters' perceived uncertainties inherent in CAMx or otherwise would alter the outcome of the BART alternative analysis.

In addition to the conservation organizations' comments, we also received several comments from Basin Electric:

Comment: First, the commenter stated that the EPA's BART alternative, under the two-prong test found at 40 CFR 51.308(e)(3), results in greater reasonable progress and demonstrated compliance with each of the five elements of the BART alternative. 106 Specifically, the commenters agree with the EPA's findings that the CAMx modeling demonstrated that emission reductions associated with the BART alternative in the proposed FIP revision will provide greater reasonable progress towards natural visibility conditions than the implementation of BART alone. Furthermore, reliance on the CAMx model, including the inclusion of Laramie River Unit 1 NO X emissions, actual anticipated emissions, Modeled Attainment Test Software (MATS), and PSAT plots, was appropriate according to the commenter.

Response: For the reasons explained elsewhere in this action, we agree with the commenter's assertion that, under the two-pronged test found at 40 CFR 51.308(e)(3), the BART alternative results in greater reasonable progress than BART and complies with each of the five elements of the BART alternative.

Comment: Second, the commenter encouraged the EPA to consider, as part of its approval of the revised FIP, the factors set forth in the weight of evidence test under 40 CFR 51.308(e)(2)(i)(E), including: (1) Earlier emission reductions, (2) reductions in SO 2 emissions, (3) additional NO X emissions reductions at Unit 1, (4) overall greater reasonable progress, (5) greater visibility benefit with lower costs, and (6) avoidance of litigation risk.

Response: While we appreciate the commenters' encouragement to conduct an additional analysis, the regional haze rule requires the BART alternative to achieve greater reasonable progress under either: (1) A determination under 40 CFR 51.308(e)(3) based on greater emission reductions if the distribution of emissions is not substantially different than BART; (2) a determination under 40 CFR 51.308(e)(3) based on the use of dispersion modeling if the distribution of emissions is significantly different; or (3) a determination under 40 CFR 51.308(e)(2)(i)(E) based on the clear weight of evidence. 107 Thus, only one analysis is necessary to determine that the BART alternative achieves greater reasonable progress than BART.

Furthermore, we cannot, in fact, incorporate a new key analysis, such as a weight of evidence determination, into our final rulemaking without first introducing it through the public rulemaking process as part of a proposed rule.

Comment: Third, the commenter asserts that the regional haze regulations support consideration of costs in the determination of a BART alternative. Since under the CAA, a BART determination must “take into consideration the cost of compliance” and a determination of reasonable progress toward achieving the national goal of improving visibility must “consider the cost of compliance,” so, too, should BART alternatives be predicated on consideration of compliance costs and any differential between the costs of BART and the costs of the BART alternative. Thus, the commenter encourages the EPA to consider that the BART alternative will achieve greater visibility benefits for less cost than BART.

Response: The EPA disagrees that we should perform a cost analysis of the BART alternative emission control strategy. While the cost of compliance is a factor under both the BART and reasonable progress analyses (CAA 169A(g)(2) and (1), respectively), the regulatory “greater reasonable progress” requirements for BART alternatives focus on whether an alternative will achieve greater visibility improvement than BART ( see 40 CFR 51.308(e)(2)(i)). Specifically, the test on which the EPA is relying to demonstrate that the BART alternative here makes greater reasonable progress than BART (40 CFR 51.308(e)(3)) is based solely on visibility impacts of the alternative versus BART.

Comment: Finally, the commenter identifies an error to the NO X emission reduction for Unit 1 found in Table 4 of the proposed rule. The NO X emission reduction for Unit 1 in Table 4 is shown as 4,880 tons per year but should be 5,179 tons per year, as correctly reflected in the text, according to the commenter.

Response: While the modeled NO X emissions reductions of 5,179 tons per year were correctly used in the modeling analysis, 108 we agree with the commenter that the NO X emission reduction for Unit 1 in Table 4 of the proposed rule should read 5,179 tons per year as reflected in the text at the bottom of page 51408. We appreciate the commenter bringing this inadvertent error in the text of the proposed rule to our attention.

In this action, the EPA is finalizing approval of SIP amendments, shown in Table 1, to the Wyoming Air Quality Standards and Regulations, Chapter 14, Emission Trading Program Regulations, Section 3, Sulfur dioxide milestone inventory, revising the backstop trading program SO 2 emissions reporting requirements for Laramie River Units 1 and 2.

We are also finalizing amendments to the Wyoming regional haze FIP contained in 40 CFR 52.2636 to remove the 2014 FIP's NO X emission limits and instead incorporate the BART alternative and associated NO X and SO 2 emission limits for Laramie River Units 1, 2 and 3, revise the NO X emission limit for Unit 1, and add control technology requirements. Specifically, the EPA is revising the NO X emission limits and control technologies for Laramie River Units 1, 2 and 3 and adding SO 2 emission limits for Laramie River Units 1 and 2 in Table 2 of 40 CFR 52.2636(c)(1). We are also adding associated compliance dates in 40 CFR 52.2636(d)(4) for Laramie River Units 1, 2 and 3. Finally, we are referencing SO 2 in the following sections: Applicability (40 CFR 52.2636(a)); Definitions (40 CFR 52.2636(b)); Compliance determinations for NO X (40 CFR 52.2636(e)); Reporting (40 CFR 52.2636(h)); and Notifications (40 CFR 52.2636(i)). We are not amending any other regulatory text in 40 CFR 52.2636.

Although we are finalizing revisions to the Wyoming regional haze FIP, Wyoming may always submit a new regional haze SIP to the EPA for review, and we would welcome such a submission. The CAA requires the EPA to act within 12 months on a SIP submittal from the time that it is determined to be complete. If Wyoming were to submit a SIP revision meeting the requirements of the CAA and the regional haze regulations, we would propose approval of the State's plan as expeditiously as practicable.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SIP amendments described in Section IV of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the state implementation plan, have been incorporated by reference by the 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 the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 109

This action is not a “significant regulatory action” under the terms of Executive Order 12866  110 and was therefore not submitted to the Office of Management and Budget (OMB) for review. This final rule revision applies to only one facility in the State of Wyoming. It is therefore not a rule of general applicability.

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

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA). 111 A “collection of information” under the PRA means the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. 112 Because this final rule revises the NO X and SO 2 emission limits and associated reporting requirements for one facility, the PRA does not apply.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This rule does not impose any requirements or create impacts on small entities as no small entities are subject to the requirements of this rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local and tribal governments and the private sector. Under section 202 of UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for actions with “Federal mandates” that may result in expenditures to state, local and tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory actions with significant federal intergovernmental mandates, and informing, educating and advising small governments on compliance with the regulatory requirements.

Under Title II of UMRA, the EPA has determined that this action does not contain a federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million  113 by state, local or tribal governments or the private sector in any one year. The revisions to the 2014 FIP would reduce private sector expenditures. Additionally, we do not foresee significant costs (if any) for state and local governments. Thus, because the revisions to the 2014 FIP reduce annual expenditures, this final rule is not subject to the requirements of sections 202 or 205 of UMRA. This final rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

Executive Order 13132, Federalism, 114 revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.”  115 “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”  116 Under Executive Order 13132, the EPA may not issue a regulation “that has federalism implications, that imposes substantial direct compliance costs, . . . and that is not required by statute, unless [the federal government provides the] funds necessary to pay the direct [compliance] costs incurred by the State and local governments,” or the EPA consults with state and local officials early in the process of developing the final regulation. 117 The EPA also may not issue a regulation that has federalism implications and that preempts state law unless the agency consults with state and local officials early in the process of developing the final regulation.

This action does not have federalism implications. The FIP revisions will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this action.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”  118 This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. However, the EPA did send letters to each of the Wyoming tribes explaining our regional haze proposed FIP revision and offering consultation; however, no tribe asked for consultation. 119

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997). The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the executive order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. Section 12(d) of NTTAA, Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to consider and use “voluntary consensus standards” in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

This action involves technical standards. The EPA has decided to use the applicable monitoring requirements of 40 CFR part 75. Part 75 already incorporates a number of voluntary consensus standards. Consistent with the agency's Performance Based Measurement System (PBMS), part 75 sets forth performance criteria that allow the use of alternative methods to the ones set forth in part 75. The PBMS approach is intended to be more flexible and cost-effective for the regulated community; it is also intended to encourage innovation in analytical technology and improved data quality. At this time, the EPA is not recommending any revisions to part 75. However, the EPA periodically revises the test procedures set forth in part 75. When the EPA revises the test procedures set forth in part 75 in the future, the EPA will address the use of any new voluntary consensus standards that are equivalent. Currently, even if a test procedure is not set forth in part 75, the EPA is not precluding the use of any method, whether it constitutes a voluntary consensus standard or not, as long as it meets the performance criteria specified; however, any alternative methods must be approved through the petition process under 40 CFR 75.66 before they are used.

Executive Order 12898 establishes federal executive policy on environmental justice. 120 Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.

I certify that the approaches under this final rule will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous/tribal populations. As explained previously, the Wyoming Regional Haze FIP, as revised by this action, will result in a significant reduction in emissions compared to current levels. Although this revision will allow an increase in future emissions as compared to the 2014 FIP, the revisions to the FIP, as a whole, will still result in overall NO X and SO 2 reductions compared to those currently allowed. In addition, the area where Laramie River Station is located has not been designated nonattainment for any NAAQS. Thus, the FIP will ensure a significant reduction in NO X and SO 2 emissions compared to current levels and will not create a disproportionately high and adverse human health or environmental effect on minority, low-income, or indigenous/tribal populations.

This rule is exempt from the CRA because it is a rule of particular applicability.

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 19, 2019. Pursuant to CAA section 307(d)(1)(B), this section is subject to the requirements of the CAA section 307(d) as it promulgates a FIP under CAA section 110(c). Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

40 CFR part 52 is amended as follows:

States that have received final approval from the EPA under RCRA section 9004(b) of RCRA, 42 U.S.C. 6991c(b), must maintain an underground storage tank program that is equivalent to, consistent with, and no less stringent than the Federal underground storage tank program. When the EPA makes revisions to the regulations that govern the UST program, states must revise their programs to comply with the updated regulations and submit these revisions to the EPA for approval. Most commonly, states must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) part 280. States can also initiate changes on their own to their underground storage tank program and these changes must then be approved by the EPA.

On July 6, 2018, in accordance with 40 CFR 281.51(a), Colorado submitted a complete program revision application seeking the EPA's approval of Colorado's revisions corresponding to the EPA final rule published on July 15, 2015, (80 FR 41566), which revised the 1988 UST regulations and the 1988 State program approval (SPA) regulations (2015 Federal Revisions). As required by 40 CFR 281.20, the State application contains the following: A transmittal letter from the Governor requesting approval, a description of the program and operating procedures, a demonstration of the State's procedures to ensure adequate enforcement, a Memorandum of Agreement outlining the roles and responsibilities of the EPA and the implementing agency, a statement of certification from the Attorney General, and copies of all relevant State statutes and regulations. We have reviewed the State application and determined that the revisions to Colorado's UST program are equivalent to, consistent with, and no less stringent than, the corresponding Federal requirements in subpart C of 40 CFR part 281, and that the Colorado program provides for adequate enforcement of compliance (40 CFR 281.11(b)). Therefore, the EPA grants Colorado final approval to operate its UST program with the changes described in the program revision application and as outlined below in Section I.G of this document.

This action does not impose additional requirements on the regulated community because the regulations being approved by this rule are already in effect in the State of Colorado, and are not changed by this action. This action merely approves the existing State regulations as meeting the Federal requirements and renders them federally enforceable.

The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and we anticipate no adverse comment. Colorado did not receive any comments during its comment period when the rules and regulations being considered were proposed at the State level.

Along with this direct final rule, the EPA is publishing a separate document in the “Proposed Rules” section of this Federal Register that serves as the proposal to approve the State's UST program revisions and provides an opportunity for public comment. If the EPA receives comments that oppose this approval, the EPA will withdraw this direct final rule by publishing a document in the Federal Register before it becomes effective. The EPA will base any further decision on approval of the State application on the proposal to approve after considering all comments received during the comment period. The EPA will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this approval, you must do so at this time.

On April 23, 2007, the EPA finalized a rule approving the UST program that Colorado proposed to administer in lieu of the Federal UST program. The State's program has not previously been codified.

In order to be approved, each state program application must meet the general requirements in 40 CFR 281.11, and specific requirements in the following subparts of 40 CFR part 281: Subpart B (Components of a Program Application); subpart C (Criteria for No Less Stringent); and subpart D (Adequate Enforcement of Compliance). This also is true for proposed revisions to approved state programs.

As more fully described below, the State has made the changes to its approved UST program to reflect the 2015 Federal Revisions. The EPA is approving the State's changes because they are equivalent to, consistent with, and no less stringent than the Federal UST program and because the EPA has confirmed that the Colorado UST program will continue to provide for adequate enforcement of compliance as described in 40 CFR 281.11(b) and part 281, subpart D after this approval.

The Colorado Department of Labor and Employment, Division of Oil and Public Safety (Department) is the lead implementing agency for the UST program in Colorado, except in Indian country.

The Department continues to have broad statutory authority to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases under Colorado Revised Statutes (C.R.S.) (2018), Title 8 Labor and Industry, Article 20 Fuel Products, selected provisions from Sections 8-20-101, et seq. and Article 20.5 Petroleum Storage Tanks, Sections 8-20.5-101, et seq. The Colorado UST Program enforcement authority arises from the powers and duties granted to the Department Director (Director), which grants are found in C.R.S. Sections 8-20-102(1), 8-20-104, 8-20-209(1), 8-20.5-107, 8-20.5-202(1), 8-20.5-208(4) and 8-20.5-209. C.R.S. Sections 8-20-104 and 8-20.5-107 provide the Director with broad enforcement authority. Under C.R.S. Section 8-20-209(1), any duly authorized agent or employee of the Division of Oil and Public Safety has the authority to enter an UST facility during regular business hours for inspections. In the case of a release, C.R.S. Section 8-20.5-208(4) provides the Director the authority to take such action as necessary, including the authority to enter any property, premises, or place where an UST is located for inspection, to conduct monitoring and testing, and to require an owner to furnish records, conduct monitoring or testing and provide access to tanks. C.R.S. Sections 8-20-228 and 8-20.5-209 provide the Director with specific corrective action authority. Notices of violation may be issued, and penalties for non-compliance with Colorado's UST Act may be assessed under C.R.S. Section 8-20.5-107. A delivery prohibition tag may be placed on each tank that has been determined to meet any of the criteria for delivery prohibition as described in 7 Code of Colorado Regulations 1101-14, Section 6-2-1.

Specific authorities to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases are found under C.R.S. Section 8-20-228, 8-20.5-102(1) and (2), and Title 8, Article 20.5, Part 2 Underground Storage Tanks, in addition to the regulatory provisions of 7 CCR 1101-14, Article 2, Underground Storage Tanks, as amended effective May 1, 2018; Reporting and recordkeeping requirements are found under 7 CCR 1101-14, Section 2-3-7. The aforementioned statutory and regulations sections satisfy the requirements of 40 CFR 281.40 and 281.41.

Through a Memorandum of Agreement between the State of Colorado and the EPA, signed by the EPA Region 8 Regional Administrator on February 13, 2018, the State maintains procedures for receiving and ensuring proper consideration of information about violations submitted by the public. The State agrees to comply with public participation provisions contained in 40 CFR 281.42, including: The provision that the State will not oppose intervention under Rule 24 of the Colorado Rules of Civil Procedure for Courts of Record in Colorado on the grounds that the applicant's interest is adequately represented by the State; and the right of aggrieved parties to be admitted as party to agency proceedings under C.R.S. Title 24, Article 4, Part 1, Section 24-4-105(2)(c). Colorado has met the public participation requirements found in 40 CFR 281.42.

To qualify for final approval, revisions to a state's program must be “equivalent to, consistent with, and no less stringent” than the 2015 Federal Revisions. In the 2015 Federal Revisions the EPA addressed UST systems deferred in the 1988 UST regulations and added, among other things, new operation and maintenance requirements; secondary containment requirements for new and replaced tanks and piping; operator training requirements; and a requirement to ensure UST system compatibility before storing certain biofuel blends. In addition, the EPA removed past deferrals for emergency generator tanks, field constructed tanks, and airport hydrant systems.

The EPA analyzes revisions to approved state programs pursuant to the criteria enumerated in 40 CFR 281.30 through 281.39, and has concluded that the Department has revised its regulations to help ensure that the State's UST program continues to be equivalent to, consistent with, and no less stringent than the 2015 Federal Revisions. In particular, the Department has amended the Code of Colorado Regulations to incorporate the revised requirements of 40 CFR part 280, including the requirements added by the 2015 Federal Revisions. The State, therefore, has ensured that the criteria found in 40 CFR 281.30 through 281.38 are met.

Title 40 CFR 281.39 describes the state operator training requirements that must be met in order to be considered equivalent to, consistent with, and no less stringent than Federal requirements. Colorado has promulgated and is implementing its own operator training provisions under Code of Colorado Regulations 7 CCR 1101-14 Section 2-3-1, et seq. After a thorough review, the EPA has determined that Colorado's operator training requirements are equivalent to, consistent with, and no less stringent than Federal requirements.

As part of the State Application, the Colorado Attorney General certified that the State revisions meet the “equivalent to, consistent with, and no less stringent” criteria in 40 CFR 281.30 through 281.39. The EPA is relying on this certification in addition to the analysis submitted by the State in making our determination.

For further information on the EPA's analysis of the State's application, see the chart in the Technical Support Document (TSD) contained in the docket for this rulemaking.

Where an approved state program has a greater scope of coverage than required by Federal law, the additional coverage is not part of the federally approved program and are not federally enforceable (40 CFR 281.12(a)(3)(ii)). The following regulatory requirements are considered broader in coverage than the Federal program, as these State-only regulations are not required by Federal regulation and are implemented by the State in addition to the federally approved program:

7 Code of Colorado Regulations (CCR) 1101-14, Section 1-5 Definitions “motor fuel” because, and to the extent that the State includes fuel products not restricted to use as fuel in UST systems.

7 CCR 1101-14, Sections 2-2-3(a) and 2-2-3(j) are broader in scope because fees are not imposed by the Federal program.

7 CCR 1101-14, Section 2-3-7(d) is broader in scope because the State requires extra documentation and recordkeeping to support the reimbursement of funds from the State Petroleum Storage Tank fund.

Where an approved state program includes requirements that are considered more stringent than required by Federal law, the more stringent requirements become part of the federally approved and enforceable program (40 CFR 281.12(a)(3)(i)).

The following regulatory requirements are considered more stringent than the Federal program, and on approval, they become part of the federally approved program and are federally enforceable:

Under 7 Code of Colorado Regulations (CCR) 1101-14:

At Section 1-5, definition of “replace” and 2-2-1(b) introductory paragraph, third sentence, Colorado has a shorter threshold for the length of piping that triggers a designation of replacement than the Federal program.

At Section 2-2-1(c)(1)(ii), Colorado maintains more restrictive overfill prevention equipment requirements than the Federal program.

At Sections 2-2-2-3(a), 2-3-6-2(a)(1) and (2), and 2-3-6-2(a)(7) and (c), Colorado has State-only inspection requirements that are additional to those found in the Federal program.

At Sections 2-2-1(d)(1), introductory paragraph—(d)(1)(iii), the State has additional criteria for defining new dispenser systems, which would regulate as new more types of dispenser systems than Federal.

At Sections 2-2-3(a) and (b), Colorado has an additional State-only annual tank registration requirement.

At Sections 2-3-7(b)(9), 2-4-3(e), 4-1(a) and (e), and in the lack of a State analog to Federal § 280.50(b)(1), Colorado maintains reporting requirements additional to those found in the Federal program.

Colorado does not have an analog to the Federal recordkeeping timeline requirement found at § 280.45(b)(1) and (3); therefore, the State requirement for maintaining the records until the UST system is permanently closed or undergoes a change in service must be observed, which is more stringent than the 3 years required under the Federal program for these types of records.

At Sections 2-4-1(a), (f), and (g), 2-4-3(a)-(c), and due to the lack of a State analog to the last sentence of § 280.70(a) and the exception to the spill and overfill requirements at § 280.70(c), the Colorado program sets forth additional requirements relative to the State's temporary tank closure requirements that are not found in the Federal regulations.

At Section 2-3-1-6(c), Colorado has additional requirements for the identification and designation of Class A and B operators.

At Section 7-3(d)(2)(i), the State has an additional filing option for the required financial responsibility filing and a shorter timeline under which the filing must take place than the Federal program.

The EPA's approval of Colorado's program does not extend to Indian country as defined in 18 U.S.C. 1151. Indian country generally includes all lands within the exterior boundaries of the following Indian reservations located within Colorado: The Ute Mountain Ute and Southern Ute Indian Reservations; any land held in trust by the United States for an Indian tribe; and any other areas that are “Indian country” within the meaning of 18 U.S.C. 1151. Any lands removed from an Indian reservation status by Federal court action are not considered reservation lands even if located within the exterior boundaries of an Indian reservation. The EPA will retain responsibilities under RCRA for underground storage tanks in Indian country. Therefore, this action has no effect in Indian country. See 40 CFR 281.12(a)(2).

Codification is the process of placing a state's statutes and regulations that comprise the State's approved UST program into the CFR. Section 9004(b) of RCRA, as amended, authorizes the EPA to approve state UST programs to operate in lieu of the Federal program. The EPA codifies its authorization of state programs in 40 CFR part 282 and incorporates by reference state regulations that the EPA will enforce under sections 9005 and 9006 of RCRA and any other applicable statutory provisions. The incorporation by reference of state authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the federally approved state program and state requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the approved program in each state.

The EPA has not previously incorporated by reference and codified Colorado's approved UST program. Through this action, the EPA is incorporating by reference and codifying Colorado's State program in 40 CFR 282.55 to include the program and the approved revisions.

In this rule we are finalizing the Federal regulatory text that incorporates by reference the federally authorized Colorado UST program. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the Colorado rules described in the amendments to 40 CFR part 282 set forth below. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and/or in hard copy at the EPA Region 8 office (see the ADDRESSES section of this preamble for more information).

One purpose of this Federal Register document is to codify Colorado's approved UST program. The codification reflects the State program that would be in effect at the time the EPA's approved revisions to the Colorado UST program addressed in this direct final rule become final. If, however, the EPA receives substantive comment on the proposed rule, then this codification will not take effect, and the State rules that are approved after the EPA considers public comment will be codified instead. By codifying the approved Colorado program and by amending the Code of Federal Regulations (CFR), the public will more easily be able to discern the status of the federally approved requirements of the Colorado program.

The EPA is incorporating by reference the Colorado approved UST program in 40 CFR 282.55. Section 282.55(d)(1)(i)(A) incorporates by reference for enforcement purposes the State's regulations.

Section 282.55 also references the Attorney General's Statement, Demonstration of Adequate Enforcement Procedures, the Program Description, and the Memorandum of Agreement, which are approved as part of the UST program under Subtitle I of RCRA. These documents are not incorporated by reference.

The EPA retains the authority under sections 9003(h), 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d and 6991e, and other applicable statutory and regulatory provisions to undertake corrective action, inspections, and enforcement actions, and to issue orders in approved states. If the EPA determines it will take such actions in Colorado, the EPA will rely on Federal sanctions, Federal inspection authorities, and other Federal procedures rather than the State analogs. Therefore, though the EPA has approved the State procedures listed in 40 CFR 282.55(d)(1)(ii), the EPA is not incorporating by reference Colorado's procedural and enforcement authorities.

The public also needs to be aware that some provisions of the State's UST program are not part of the federally approved state program. Such provisions are not part of the RCRA Subtitle I program because they are “broader in coverage” than Subtitle I of RCRA. Title 40 CFR 281.12(a)(3)(ii) states that where an approved state program has provisions that are broader in coverage than the Federal program, those provisions are not a part of the federally approved program. As a result, state provisions which are “broader in coverage” than the Federal program are not incorporated by reference for purposes of enforcement in part 282. Title 40 CFR 282.55(d)(1)(iii) lists for reference and clarity the Colorado statutory and regulatory provisions which are “broader in coverage” than the Federal program and which are not, therefore, part of the approved program being codified. Provisions that are “broader in coverage” cannot be enforced by EPA. The State, however, will continue to implement and enforce such provisions under State law.

This action only applies to Colorado's UST program requirements pursuant to RCRA Section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable EOs and statutory provisions as follows:

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, Oct. 4, 1993) and 13563 (76 FR 3821, Jan. 21, 2011). This action approves and codifies state requirements for the purpose of RCRA Section 9004 and imposes no additional requirements beyond those imposed by state law. Therefore, this action is not subject to review by OMB.

This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as this final approval of Colorado's revised underground storage tank program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Because this action approves and codifies preexisting requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, this action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, Aug. 10, 1999), because it merely approves and codifies state requirements as part of the State RCRA Underground Storage Tank Program without altering the relationship or the distribution of power and responsibilities established by RCRA.

This action also is not subject to Executive Order 13045 (62 FR 19885, Apr. 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks.

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

Under RCRA section 9004(b), the EPA grants a state's application for approval as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a state approval application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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

The EPA has complied with Executive Order 12630 (53 FR 8859, Mar. 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). “Burden” is defined at 5 CFR 1320.3(b).

Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule approves preexisting State rules which are at least equivalent to, consistent with, and no less stringent than existing Federal requirements and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document 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 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). However, this action will be effective July 19, 2019 because it is a direct final rule.

For the reasons set forth in the preamble, EPA is amending 40 CFR part 282 as follows:

This document announces the deadline and other details for filing the certifications and information required by the Order, FCC 18-91, 1 published at 83 FR 42043, August 20, 2018.

On July 13, 2018, the Commission released an Order that contained information collection requirements for earth station and satellite licensees regarding their current use of the 3.7-4.2 GHz band. 2 The Commission and the public will use the information collected to evaluate future use of the band. 3 On January 28, 2019, the Office of Management and Budget approved these information collection requirements in accordance with the Paperwork Reduction Act. 4 In this document (Public Notice), the International Bureau, the Wireless Telecommunications Bureau, and the Office of Engineering and Technology announce the deadline and other details for filing the certifications and information required by the Order. 5

Earth-station certifications. Operators of fixed-satellite service (FSS) earth stations in the 3.7-4.2 GHz band that are licensed or registered (authorized) in the International Bureau Filing System (IBFS), including temporary-fixed or transportable earth stations, 6 must certify the accuracy of all information reflected on their licenses or registrations in IBFS. The certification must include the relevant call sign(s), file numbers, and applicant or registrant name, along with the following signed statement: “The undersigned, individually and for the applicant, licensee, or registrant, hereby certifies that all information reflected in his or her licenses or registrations in IBFS, including any attached exhibits, are true, complete and correct to the best of his or her knowledge and belief, and have been made in good faith.” The certification must be signed by an authorized representative for the licensee or registrant.

Earth station operators that filed for new or modified licenses or registrations between April 19, 2018 and October 31, 2018, using the processes outlined in the Earth Station Filing Window Public Notices, 7 are exempt from this certification requirement. 8

Temporary fixed or transportable earth stations. Operators of temporary-fixed or transportable FSS earth stations in the 3.7-4.2 GHz band that are licensed or registered (authorized) in IBFS must also provide the following information regardless of when they were licensed or registered:

• Earth station call sign (or IBFS file number if a registration filed between April 19, 2018, and October 31, 2018, is pending);

• Address where the equipment is typically stored;

• The area within which the equipment is typically used;

• How often the equipment is used and the duration of such use ( i.e., please provide examples of typical deployments, e.g., operation x days a week at sports arenas within a radius of y miles of its home base);

• Number of transponders typically used in the 3.7-4.2 GHz band and extent of use on both the uplink and downlink; and

• Licensee/registrant and point of contact information. 9

All earth station operators, including those exempt from the requirements of this Public Notice, are required to update their information in IBFS in the event of a change in contact information or any of the operational parameters. 10

Operators with existing FSS space station licenses with coverage of the United States or grants of United States market access in the 3.7-4.2 GHz band must provide the following information:

• Satellite call sign, name, and orbital location;

• Expected end-of-life for satellite;

• The approximate dates that any additional C-band (3.7-4.2 GHz band) satellites with a currently pending application in IBFS are planned for launch to serve the United States market (note whether this satellite is a replacement);

• Any additional C-band satellites that do not have a currently pending application in IBFS that are planned for launch to serve the United States market and the approximate date of such launch (note whether this satellite is a replacement);

• For each transponder on each satellite operating in the 3.7-4.2 GHz range that is operational and legally authorized to serve customers in the United States, provide the following for the most recent month, i.e., for March 2019:

• The frequency range of the transponder and the transponder number;  11

• The total capacity (megahertz) and in terms of the number of megahertz on each transponder that are currently under contract (also provide this data for one month in 2016);

• For each day in March 2019, the average percentage of each transponder's capacity (megahertz) utilized and the maximum percentage of capacity utilized on that day. Parties may supplement this required daily data for March 2019 with historical trend data over recent months up to three years (provide the date range at which the data was collected) to show utilization variances; and

• For all data reported regarding capacity under contract and capacity utilization, specify the percentage (if any) only for customers outside of the United States.

• The center frequency and bandwidth of the Telemetry Tracking and Command (TT&C) beam(s); and

• The call sign and geographic location (using NAD83 coordinates) of each TT&C receive site.

All information required by the Order, and repeated in the Public Notice, must be submitted electronically in IBFS, https://licensing.fcc.gov/myibfs, using the “Pleadings and Comments” link. Fixed, temporary fixed, and transportable earth station licensees must file certifications as a pleading type “C-band certification” for each call sign. Temporary fixed and transportable earth station licensees and space station licensees must file the additional earth station and space station data requested above using the pleading type “Other” for each call sign.

We have estimated that your response to this collection of information will take 6 hours per response ( additional information on temporary fixed earth stations in 3.7-4.2 GHz ) and 40 hours per response ( additional information on space stations in 3.7-4.2 GHz ). 12 Our estimate includes the time to read the instructions, look through existing records, gather and maintain required data, and actually complete and review the form or response. If you have any comments on this estimate, or on how we can improve the collection and reduce the burden it causes you, please write the Federal Communications Commission, Office of Managing Director, AMD PERM, Washington, DC 20554, Paperwork Reduction Act Project (3060 0678). We will also accept your PRA comments via the internet if you send an email to PRA@fcc.gov. Please DO NOT SEND COMPLETED CERTIFICATIONS OR DATA TO THIS ADDRESS.

You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid OMB control number and/or we fail to provide you with this document. This collection has been assigned an OMB control number of 3060-0678.

This document is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. 3507.

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 Atlantic 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.

The baseline quota for the General category is 555.7 mt. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a portion of the annual General category quota. Although it is called the “January” subquota, the regulations allow the General category fishery under this quota to continue until the subquota is reached or March 31, whichever comes first. The baseline subquotas for each time period are as follows: 24.7 mt for January; 233.3 mt for June through August; 123.7 mt for September; 60.7 mt for October through November; and 24.3 mt for December. Any unused General category quota rolls forward within the fishing year, which coincides with the calendar year, from one time period to the next, and is available for use in subsequent time periods. This action would adjust the daily retention limit for the second time period in 2019, June through August.

Unless changed, the General category daily retention limit starting on June 1 would be the default retention limit of one large medium or giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) per vessel per day/trip (§ 635.23(a)(2)). This default retention limit would apply to General category permitted vessels and to HMS Charter/Headboat category permitted vessels when fishing commercially for BFT.

Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of five per vessel based on consideration of the relevant criteria provided under § 635.27(a)(8). NMFS has considered these criteria and their applicability to the General category BFT retention limit for June through August 2019. These considerations include, but are not limited to, the following:

Regarding 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 General category fishermen and provided by BFT dealers continue to provide NMFS with valuable 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 also considered the catches of the General category quota to date (including landings and catch rates during the last several years) and the likelihood of closure of the General category if no adjustment is made (§ 635.27(a)(8)(ii)). Commercial-size BFT are anticipated to migrate to the fishing grounds off the northeast U.S. coast by early June. Based on General category catch rates during the June through August time period over the last several years, it is unlikely that the June through August subquota will be filled with the default daily retention limit of one BFT per vessel. NMFS set the June through August 2018 time period limit at three fish initially and reduced it to one fish effective August 23 through August 31. Due to a combination of fish availability and extremely favorable fishing conditions, NMFS needed to close the General category fishery in the September subquota time period and the October through November time period (including two subsequent reopenings and closures of the October through November time period) to allow for harvest of the subsequent subquotas without exceeding the adjusted General category quota while simultaneously maintaining equitable distribution of fishing opportunities. NMFS is setting the June through August 2019 limit in such a way that NMFS believes, informed by past experience, increases the likelihood that the fishery will remain open throughout the subperiod and year.

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)). The adjusted retention limit 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 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 General 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)). Adjustment of the retention limit is also supported by the Environmental Analysis for the 2011 final rule regarding General and Harpoon category management measures, which increased the General category maximum daily retention limit from three to five fish.

Despite elevated General category limits, the vast majority of successful trips ( i.e., General or Charter/Headboat trips on which at least one BFT is landed under General category quota) land only one or two BFT. For instance, the landings data for 2018 show that, under the three-fish limit that applied June 1 through August 22, the proportion of trips that landed one, two, or three bluefin tuna was as follows: 84 percent landed one; 12 percent landed two; and 4 percent landed three. In the last few years, NMFS has received conflicting comments that a high daily retention limit (specifically five fish) is needed to optimize General category fishing opportunities and account for seasonal distributions by enabling vessels to make overnight trips to distant fishing grounds. Others have noted that a higher General category limit at the start of the June-August period would reduce the likelihood of effort shifting into the Harpoon category, which has a relatively small quota. NMFS also has received general comment that a lower limit increases the likelihood that opportunities will extend through the late fall and the end of the calendar year, as well as improve market conditions. Although this may sometimes be true, 2018 landings data did not indicate that the fall fishery could have been extended substantially through implementation of a lower limit starting June 1. Requests tend to vary depending on actual fish behavior, weather, and availability ( i.e., abundance and proximity to shore) in any given year.

NMFS anticipates that some underharvest of the 2018 adjusted U.S. BFT quota will be carried forward to 2019 to the Reserve category, in accordance with the regulations, this summer when complete BFT catch information for 2018 is available and finalized. Because such quota would be available to be transferred from the Reserve category to the General category, and such transfers have occurred in the past, the carryover of underharvest would make it more likely that General category quota will remain available through the end of 2019 for December fishery participants, despite the transfer of 19.5 mt from the 28.9-mt General category December 2019 subquota period to the January 2019 period (83 FR 67140, December 28, 2018); 26 mt from the Reserve category effective February 8, 2019 (84 FR 3724, February 13, 2019); and 25 mt from the Reserve category effective February 25, 2019 (84 FR 6701, February 28, 2019).

General category landings were relatively high in the summer and fall of 2018, due to a combination of fish availability, favorable fishing conditions, and higher daily retention limits. NMFS transferred 60 mt from the Reserve category (83 FR 447843, September 21, 2018), transferred 40 mt from the Harpoon category and 15 mt from the Reserve category (83 FR 50857, October 10, 2018), and later transferred 9.9 mt from the Harpoon category and 129.2 mt from the Reserve category (83 FR 62512, December 4, 2018). Although NMFS needed to close the September and the October-November fisheries to prevent further overharvest of the adjusted 2018 General category subquotas, NMFS anticipates that General category participants in all areas and time periods will have opportunities to harvest the General category quota in 2019, through more proactive inseason management such as retention limit adjustments and/or the timing and amount of quota transfers (based on consideration of the determination criteria regarding inseason adjustments), as practicable. NMFS will closely monitor General category catch rates associated with the various authorized gear types ( e.g., harpoon, rod and reel) during the June through August period and actively adjust the daily retention limit as appropriate to enhance scientific data collection from, and ensure fishing opportunities in, all respective time-period subquotas as well as ensure available quota is not exceeded.

A limit lower than three fish at the start of the June through August period could result in diminished fishing opportunities for those General category vessels using harpoon gear based on past fish behavior early in the season. Lower limits may also result in effort shifts from the General category to the Harpoon category, which could result in premature closure of the Harpoon category, and potentially additional inseason adjustments. General category harpoon gear participants land approximately five to seven percent of the General category landings each year and these landings occur early in the season. A three-fish retention limit for an appropriate period of time will provide a greater opportunity to harvest the June through August subquota with harpoon gear without exceeding it while also maintaining equitable distribution of fishing opportunities for harpoon and rod and reel participants. NMFS also considered general input on 2019 General category limits from the HMS Advisory Panel at its September 2018 meeting.

Based on these considerations, we have determined that a three-fish General category retention limit is warranted for the beginning of the June-August 2019 subquota period. This limit would provide a reasonable opportunity to harvest the full U.S. BFT quota (including the expected increase in available 2019 quota based on 2018 underharvest), without exceeding it, while maintaining an equitable distribution of fishing opportunities; help optimize the ability of the General category to harvest its full quota; allow the collection of a broad range of data for stock monitoring purposes; and be consistent with the objectives of the 2006 Consolidated HMS FMP and amendments. Therefore, NMFS increases the General category retention limit from the default limit (one) to three large medium or giant BFT per vessel per day/trip, effective June 1, 2019, through August 31, 2019.

Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example (and specific to the June through August 2019 limit), whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the daily limit of three fish may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, where NMFS prohibits targeting fishing for BFT, and applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT fishing commercially for BFT. For information regarding the HMS Charter/Headboat commercial sale endorsement, see 82 FR 57543, December 6, 2017.

NMFS will actively monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat vessel owners are required to report their own 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, by 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 adjustments 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.

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. The timing of this rulemaking will allow approximately two weeks' prior notice to the regulated community. Affording additional prior notice and an opportunity for public comment on the change in the daily retention limit from the default level for the June through August 2019 subquota period would be impracticable. Based on available BFT quotas, fishery performance in recent years, and the availability of BFT on the fishing grounds, responsive adjustment to the General category BFT daily retention limit from the default level is warranted to allow fishermen to take advantage of 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 about fishery conditions and this year's landings. 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 inappropriate to the amount of quota available for the period.

Fisheries under the General category daily retention limit will commence on June 1 and thus prior notice would be contrary to the public interest. Delays in increasing these retention limits would adversely affect those General and Charter/Headboat category vessels that would otherwise have an opportunity to harvest more than the default retention limit of one BFT per day/trip and may result in 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. With quota available and fish available on the grounds, and with no expected impacts to the stock, it would be contrary to the public interest to require vessels to wait to harvest the additional fish allowed through this action. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment.

Adjustment of the General category retention limit needs to be effective June 1, 2019, or as soon as possible thereafter, to minimize any unnecessary disruption in fishing patterns, to allow the impacted sectors to benefit from the adjustment, and to not preclude fishing opportunities for fishermen in geographic areas with access to the fishery only during this time period. Foregoing opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen that depend upon catching the available quota within the time periods designated in the 2006 Consolidated HMS FMP and amendments. Therefore, the AA finds there is also 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(a)(4) and is exempt from review under Executive Order 12866.