I. Background

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74)(“the Act”). The Act required agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rulemaking, and (2) make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties.

OPM has updated the agency's monetary penalties annually since the passage of the 2015 Act.

This rule takes into account adjustments for the year 2018 based on inflation for that year. These calculations were made based on guidance contained in Office of Management and Budget Memorandum M-17-11:

This rule makes additional adjustments for the year 2018 based on inflation for that year. These calculations were made based on guidance contained in Office of Management and Budget Memorandum M-19-04.

This final rule is being issued without prior public notice or opportunity for public comments. The 2015 Act's amendments to the Inflation Adjustment Act required the agency to adjust penalties initially through an interim final rulemaking, which did not require the agency to complete a notice and comment process prior to promulgating the interim final rule. The amendments also explicitly required the agency to make subsequent annual adjustments notwithstanding 5 U.S.C. 553 (the section of the Administrative Procedure Act that normally requires agencies to engage in notice and comment). The formula used for adjusting the amount of civil penalties is given by statute, with no discretion provided to OPM regarding the computation of the adjustments. OPM is charged only with performing ministerial computations to determine the amount of adjustment to the civil penalties due to increases in the Consumer Price Index for all Urban Consumers (CPI-U).

The Office of Management and Budget (OMB) issues guidance annually on calculating adjustments. Under this guidance, OPM has identified applicable civil monetary penalties and calculated the catch-up adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015CPI-U.

The Office of Management and Budget published guidance on adjusting penalties based on the increase in the CPI-U between October of 2017 and October of 2018. See December 14, 2018, Memorandum for the Heads of Executive Departments and Agencies, from Mick Mulvaney, Director, Office of Management and Budget, re: Implementation of Penalty Inflation Adjustments for 2019, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This guidance provided OPM with the level to which civil penalties should be adjusted as annual inflation adjustments following the initial necessary update to comply with the 2015 Act.

Office of Management and Budget Memorandum M-19-04 stated that the cost of living multiplier for calculating adjustments in 2018 was 1.02522. This multiplier is to be applied to the current level of civil monetary penalties for agencies. When OPM's current penalties of $11,181 are multiplied by 1.02522, the resulting penalty amount is $11,463.

OPM has examined the impact of this rule as required by Executive Order 12866 and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not “significant regulatory action,” under Executive Order 12866.

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

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires agencies to adjust civil penalties annually. No discretion is allowed. Thus, the RFA does not apply to this final rule.

This rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

This rule does not involve a Federal mandate 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 and that such rulemaking will not significantly or uniquely affect small governments.

This rule does not have takings implications.

This rule does not have federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Does not unduly burden the judicial system.

(b) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(c) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

In accordance with Executive Order 13175, OPM has evaluated this rule and determined that it has no tribal implications.

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

USDA is issuing this final rule to amend the definition of judge in the rules of practice and procedure governing formal rulemaking proceedings instituted by the Secretary. The current definition of judge in the rules of practice at 7 CFR 1.802 only includes administrative law judges. To provide the agency with more flexibility in overseeing formal rulemaking proceedings, and to better allocate resources within the Department, we are expanding the definition of judge to be consistent with how that term is defined in the Department's other rules of practice and procedure applicable to formal rulemaking proceedings ( i.e., 7 CFR part 900 (General Regulations) and 7 CFR part 1200 (Rules of Practice and Procedure Governing Proceedings Under Research, Promotion, and Information Programs)). Judge will now be defined as any administrative law judge appointed pursuant to 5 U.S.C. 3105 or any presiding official appointed by the Secretary, and assigned to conduct the proceeding.

This final rule modifies a definition in agency rules of practice and procedure. Under the Administrative Procedure Act, prior notice and opportunity for comment are not required for the promulgation of agency rules of practice and procedure. 5 U.S.C. 553(b)(3)(A). Only substantive rules require publication 30 days prior to their effective date. 5 U.S.C. 553(d). Therefore, this final rule is effective upon publication in the Federal Register .

Furthermore, under 5 U.S.C. 804, this rule is not subject to congressional review under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. In addition, because prior notice and opportunity for comment are not required to be provided for this final rule, this rule is exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

This rule does not meet the definition of a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563. Because this rule is not a significant regulatory action, it has not been reviewed by the Office of Management and Budget.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements of Executive Order 13771. See OMB's Memorandum on “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative proceedings that must be exhausted before parties may file suit in court challenging this rule.

This rule has been reviewed in accordance with the requirements of Executive Order 13132, Federalism. The review reveals that this rule does not contain policies with federalism implications sufficient to warrant federalism consultation under Executive Order 13132.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on tribal governments and would not have significant tribal implications.

This rule contains no information collections or recordkeeping requirements under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq. ].

For the reasons set forth in the preamble, 7 CFR part 1 is amended as follows:

The changes exempt Fuji apples from smooth net-like russeting as a grade-determining factor. These revisions also affect the grade requirements under the Export Apple Act.

This rule does not meet the definition of a significant regulatory action contained in section 3(f) of Executive Order 12866, and is not subject to review by the Office of Management and Budget (OMB). Because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017). Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments or significant Tribal implications.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

The current U.S. standards provide for apples to be sorted into various grades, including but not limited to U.S. Extra Fancy, U.S. Fancy, and U.S. No. 1. Each of the grades describes the qualities required for apples to meet the standards and those that are not to be scored against certain varieties of apples when determining grade. AMS proposed amending the U.S. standards for apples so that smooth net-like russeting of Fuji apples would not be scored in any grade ( See 84 FR 19743). Smooth net-like russeting is a cosmetic defect that affects the skin of the apple but not the internal quality of the fruit. Smooth net-like russeting, which is called flecking by the Pacific Northwest apple industry, is prevalent in the Fuji variety. U.S. apple standards restricted apples from exhibiting an aggregate area of smooth net-like russeting greater than 10 percent for U.S. Extra Fancy, 15 percent for U.S. Fancy, and 25 percent for U.S. No. 1 from meeting the grade requirements. The Export Apple Act regulations (7 CFR part 33) require that apples grade at least U.S. No. 1 or U.S. No. 1 Early (except apples for export to Pacific ports of Russia must grade at least U.S. Utility or U.S. No. 1 Hail for hail damaged apples, as specified in the U.S. Standards for Grades of Apples). Fuji apples that display smooth net-like russeting greater than the percentages allowed are therefore excluded from the export market due to current U.S. grade standards.

The Washington State Grade Standards for Apples (16 W.A.C. 403) do not consider smooth net-like russeting to be a defect for Fuji apples if the russeting does not rise above the surface of the skin and the skin is not rough to the touch. Apples grown in Washington account for nearly 75 percent of domestic production and more than 90 percent of U.S. export apples. Revising the U.S. apple standards to exclude scoring of smooth net-like russeting on Fuji apples as a quality defect, in alignment with the Washington State standards, will promote consistency across the apple market and remove barriers to the export market for growers of the Fuji variety.

In December 2016, the Northwest Horticultural Council (NHC) petitioned AMS to remove the requirement for scoring smooth net-like russeting from the U.S. Standards for Grades of Apples for the Fuji variety. In response, AMS asked the NHC to provide justification and evidence of industry support, which they did in a memorandum submitted in April 2018. The NHC provided research showing that Fuji apples have a propensity for smooth net-like russeting and that the feature does not negatively affect the internal quality of the fruit. In addition, the NHC stated that revising the U.S. apple standards would partially harmonize them with the Washington State apple standards, and help prevent sound Fuji apples from being rejected in domestic and international markets. The NHC petition was supported by the Washington Apple Commission, Idaho Apple Commission, California Apple Commission, and many other apple organizations. AMS conducted research on the proposal by meeting with Washington State and industry personnel in November 2018. Based on available data, AMS concluded that exempting Fuji apples from scoring smooth net-like russeting as a quality defect would provide the industry with greater flexibility, and align the U.S. standards with current state and industry practices.

On May 6, 2019, AMS published a proposed rule in the Federal Register (84 FR 19743) soliciting comments on removing smooth net-like russeting as a grade-determining factor from the U.S. Extra Fancy, U.S. Fancy, and U.S. No. 1 grades for Fuji apples. In addition, AMS proposed removing obsolete references to the location where color standards may be examined and purchased. The comment period closed on July 5, 2019. Three comments were received; all supported the proposed revisions.

One commenter was an association representing 7,500 apple growers throughout America as well as more than 400 individual firms involved in the apple business. They “strongly support[ed]” the revisions as they will remove an unnecessary obstacle to U.S.-grown Fuji apples accessing the global marketplace. Another commenter representing growers, shippers, and packers in the Pacific Northwest “fully supported” the proposed revisions and “encourage[d] its swift adoption.” The third commenter was anonymous and stated that the revisions were “ideal” since the changes would prevent sound apples from going to waste.

Based on the information gathered, AMS is making the following revisions to the U.S. Standards for Grades of Apples:

• Section 51.300 U.S. Extra Fancy: Revised to exempt the Fuji variety from scoring of smooth net-like russeting as a defect.

• Section 51.301 U.S. Fancy: Revised to exempt the Fuji variety from scoring of smooth net-like russeting as a defect.

• Section 51.302 U.S. No. 1: Revised to exempt the Fuji variety from scoring of smooth net-like russeting as a defect. The revision of the U.S. No. 1 grade also will affect the U.S. No. 1 Hail (§ 51.302(a)) grade and the permitted combination grades (§ 51.304).

• Section 51.305 Color Requirements: Revised to remove obsolete references to the location where color standards may be examined and purchased.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impacts of the revision to the U.S. Standards for Grades of Apples (7 CFR 51.300-51.322). The purpose of the RFA is to structure regulatory actions such that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this regulatory flexibility analysis.

The revision will result in a minor change to the current U.S. standards to allow smooth net-like russeting of the Fuji variety of apple. There will be little or no additional cost to implement this revision.

According to the Small Business Administration (SBA) (13 CFR 121.601), the definition of a small apple producer is one whose annual sales are less than $750,000. Based on this definition, data from the 2012 Agricultural Census show that at least 94 percent of farm operations that produce apples are considered small. These small growers will not be disproportionately affected by the rule as all changes to the standard will be applied uniformly on all market participants.

The proposal for the change to the U.S. Standards for Grades of Apples was submitted by the NHC, which represents apple growers, packers, and shippers in Washington, Oregon, and Idaho who account for 75 percent of domestic fresh apple production. This proposal was reviewed by the U.S. Apple Association and the U.S. Apple Export Council. The addition of smooth net-like russeting to the list of features that are not scorable against Fuji apples in the U.S. Standards for Grades of Apples will promote consistency in apple grading, increase U.S. Fuji apple access into export markets, and provide for greater price stability for the Fuji variety of apples.

For reasons set forth in the preamble, 7 CFR part 51 is amended as follows:

I. Background II. Summary of Comments III. Summary of the Final Rule IV. Statement of Legal Authority V. Section-by-Section Analysis VI. Regulatory Procedures I. Background

Federal credit unions (FCUs) provide individuals of modest means access to affordable credit for productive and provident purposes. 1 This core credit union mission puts FCUs in natural competition with short-term, small-dollar lenders that offer payday, vehicle title, and other high-cost installment loans to borrowers of modest means. 2

A “payday loan” generally refers to a short-term, small-dollar loan repayable in one or more installments with repayment secured by a pre- or post-dated check or a preauthorized electronic fund transfer (EFT) from the borrower's checking account. 3 A payday loan usually matures in 14 days, around the borrower's next payday, at which time the borrower is often required to repay the loan in a single balloon payment. The borrower typically does not pay interest on a payday loan. Rather, payday lenders charge high “application” fees relative to the amount borrowed, which typically range between $15 and $35 per 100 borrowed. 4 This pricing structure produces a triple-digit annual percentage rate (APR). 5

Despite marketing payday loans as a temporary lifeline to borrowers, most payday lenders refinance or “rollover” the borrower's initial payday loan charging additional fees without a significant economic benefit to the borrower. In fact, the Center for Responsible Lending estimates that 76 percent of payday loans are rollovers. 6 Borrowers most often rollover a payday loan because the borrower does not have the ability to repay the initial loan upon maturity or will have limited funds to meet other obligations. 7 This pattern of repeated borrowings creates a “cycle of debt” that can increase the borrower's risk of becoming unbanked, filing for bankruptcy, or experiencing severe financial hardship. 8

In 2010, the Board amended the NCUA's general lending rule, § 701.21, to provide a regulatory framework for FCUs to make viable alternatives to payday loans, the PALs I rule. 9 The PALs I rule, § 701.21(c)(7)(iii), permits an FCU to offer to its members a PAL loan, a form of closed-end consumer credit, at a higher APR than other credit union loans as long as the PAL has certain structural features, developed by the Board, to protect borrowers from predatory payday lending practices that can trap borrowers in repeated borrowing cycles.

For example, the PALs I rule eliminates the potential for “loan churning,” the practice of inducing a borrower to repay an existing loan with another loan without significant economic benefit to the borrower, by prohibiting an FCU from rolling one PALs I loan into another PALs I loan. 10 As the Board previously explained, “these provisions of the [PALs I rule] will work to curtail a member's repetitive use and reliance on this type of product, which often compounds the member's already unstable financial condition . . . The Board recognizes that continuously `rolling-over' a loan can subject a borrower to additional fees and repayment amounts that are substantially more than the initial amount borrowed.”  11 However, to avoid the possibility of a default in cases where the borrower cannot repay the initial PAL loan, an FCU may extend the maturity of an existing PALs I loan to the maximum term limit permissible under the regulation as long as the borrower does not pay any additional fees or receive additional credit. An FCU may also refinance a traditional payday loan into a PALs I loan. 12

The PALs I rule also eliminates the underlying borrower payment shock from a single balloon payment, which often forces a borrower to rollover a payday loan, by requiring that each PAL loan fully amortize over the life of the loan. 13 As the Board previously stated in the preamble to the final PALs I rule, “balloon payments often create additional difficulty for borrowers trying to repay their loans, and requiring FCUs to fully amortize the loans will allow borrowers to make manageable payments over the term of the loan, rather than trying to make one large payment.”  14 Accordingly, an FCU must structure a PALs I loan so that a member repays principal and interest in approximately equal installments on a periodic basis until loan maturity. 15 While the Board does not prescribe a specific payment schedule— e.g., bi-weekly or monthly—the Board expects an FCU to structure the repayment of each PALs I loan to ensure that the member has a reasonable ability to repay the loan without the need for another PALs I loan or traditional payday loan. Accordingly, an FCU may not require that a borrower repay a PAL loan using a single balloon payment.

Moreover, the PALs I rule removes the economic incentive for an FCU to encourage a borrower to take out multiple PALs I loans by limiting the permissible fees that an FCU may charge that borrower to a reasonable application fee. 16 The non-credit union payday lending business model depends on repeated borrowings from a single borrower of small dollar amounts with high fees and associated charges. A traditional payday lender has every incentive to make multiple payday loans to that borrower to maximize the profitability of that relationship at the expense of the borrower. By limiting the scope of permissible fees, the PALs I rule realigns economic incentives to encourage an FCU to provide a PALs I loan as a pathway towards mainstream financial products and services rather than as a separate profit center for the credit union.

The Board recognizes that the PALs I rule contains recommended best practices that, when exercised in conjunction with a PALs I loan, help put credit union members on the pathway to mainstream financial products and services. This includes reporting to credit reporting agencies and providing financial education. As of December 2018, almost eighty-five percent of FCUs reported sharing PALs I loan information with credit reporting agencies and nearly forty-five percent reported providing financial education services to PALs I loan borrowers. The Board commends FCUs for undertaking these additional steps to assist their members.

As part of the 2010 rule making process, the Board indicated that it would review PALs I loan data collected on FCU call reports after one year to reevaluate the requirements of the PALs I rule. 17 As of September 2011, 372 FCUs offered PALs I loans with an aggregate balance of $13.6 million or 36,768 outstanding loans. Six months later, as of March 31, 2012, approximately 386 FCUs reported offering PALs I loans with an aggregate balance of $13.5 million on 38,749 outstanding loans. While the Board acknowledged at that time that some FCUs might make an independent business decision not to offer PALs I loans, it nevertheless sought to increase the number of FCUs making PALs I loans in a meaningful way and to ensure that all FCUs that chose to offer PALs I loans were able to recover the costs associated with making these types of loans.

For that reason, the Board issued an advanced notice of proposed rulemaking (PALs I ANPR) seeking comments on specific aspects of the PALs I rule at its September 2012 meeting. 18 These questions included, but were not limited to, asking whether the Board should allow an FCU to charge a higher application fee, whether the Board should increase the permissible PALs I loan interest rate, and whether the Board should expand the maximum permissible loan amount. The Board also asked commenters to provide information on any small dollar, short-term loans offered outside of the PALs I rule.

The Board received comments from trade organizations, state credit union leagues, consumer advocacy groups, lending networks, private citizens, and FCUs suggesting changes to at least one aspect of the PALs I rule. However, these commenters offered no consensus regarding which aspects of the PALs I rule the Board should modify. Consequently, the Board chose not to undertake any changes to the PALs I rule at that time.

In May 2018, the Board approved a notice of proposed rulemaking to amend the NCUA's general lending rule to allow FCUs to make an additional viable alternative to predatory payday loans (PALs II NPRM). 19 As of December 2017, 518 FCUs reported offering PALs I loans with 190,723 outstanding loans and an aggregate balance of $132.4 million. 20 These figures represent a significant increase in loan volume from 2012 when the Board issued the PALs I ANPR. However, the number of FCUs offering these products has only grown modestly.

The purpose of the PALs II NPRM was to provide FCUs with additional flexibility to offer PALs loans to their members. The PALs II NPRM did not propose to replace the PALs I rule. Rather, it allowed an FCU to offer a more flexible PALs loan while retaining key structural features of the PALs I rule designed to protect consumers from predatory payday lending practices, including restrictions on permissible fees, rollovers, and amortization. The Board intended the PALs I rule and proposed PALs II rule to create distinct products (referred to in this document, respectively, as PALs I and PALs II loans) that must satisfy similar regulatory requirements tailored to the unique aspects of each product.

The PALs II NPRM proposed to incorporate many of the structural features of the PALs I rule designed to protect borrowers from predatory payday lending practices. Those features included a limitation on rollovers, a requirement that each PALs II loan must fully amortize over the life of the loan, and a limitation on the permissible fees that an FCU may charge a borrower related to a PALs II loan. An FCU would also have had to structure each loan as closed-end consumer credit. As discussed in more detail below, the PALs II NPRM modified other features of the PALs I rule for PALs II loans. The purpose of these modifications was to encourage additional FCUs to offer PALs II loans as an alternative to predatory payday loans and to meet the needs of certain payday loan borrowers that may not be met by PALs I loans.

The PALs II NPRM proposed to allow an FCU to make a PALs II loan for a loan amount up to $2,000 without any minimum loan amount. The PALs I rule currently limits PALs I loan amounts to a minimum of $200 and a maximum of $1,000. 21 The PALs II NPRM noted that allowing a higher loan amount would give an FCU the opportunity to meet increased demand for higher loan amounts from payday loan borrowers and provide some borrowers with an opportunity to consolidate multiple payday loans into one PALs II loan. The Board was particularly interested in allowing a sufficient loan amount to encourage borrowers to consolidate payday loans into PALs II loans to create a pathway to mainstream financial products and services offered by credit unions.

Consistent with the proposal to increase the permissible loan amount to $2,000, the PALs II NPRM proposed increasing the maximum loan term for a PALs II loan to 12 months. The PALs I rule currently limits PALs I loan maturities to a maximum term of 6 months. 22 The increased loan term would allow a borrower sufficient time to repay their loans, thereby avoiding the types of borrower payment shock common in the payday lending industry that force borrowers to repeatedly rollover payday loans. The PALs II NPRM noted that an FCU would be free to choose an appropriate loan term, provided the loan fully amortized, and encouraged FCUs to select loan terms that were in the best financial interests of PALs II borrowers.

The PALs II NPRM also proposed to allow an FCU to offer a PALs II loan to any member regardless of the length of membership. The PALs I rule currently requires a borrower to be a member of the credit union for at least one month before receiving a PALs I loan. 23 The PALs II NPRM eliminated the membership time requirement to allow an FCU to make a PALs II loan to any member borrower that needed access to funds immediately and would otherwise turn to a payday lender to meet that need. Nevertheless, the PALs II NPRM still encouraged FCUs to consider a minimum membership requirement as a matter of prudent underwriting.

Finally, the PALs II NPRM proposed to remove the restriction on the number of PALs II loans that an FCU may make to a single borrower in a rolling 6-month period. The PALs I rule currently prohibits an FCU from making more than three PALs loans in a rolling 6-month period to a single borrower. 24 An FCU also may not make more than one PALs I loan to a borrower at a time. The Board suggested removing the rolling 6-month requirement for PALs II loans to provide FCU's with maximum flexibility to meet borrower demand. However, the PALs II NPRM proposed to retain the requirement from the PALs I rule that an FCU can only make one loan at a time to any one borrower. Accordingly, the PALs II NPRM did not allow an FCU to provide more than one PALs product, whether a PALs I or PALs II loan, to a single borrower at a given time.

In addition to the proposed PALs II framework, the PALs II NPRM asked general questions about PAL loans, including whether the Board should prohibit an FCU from charging overdraft fees for any PAL loan payments drawn against a member's account. The PALs II NPRM also asked questions, in the nature of an ANPR, about whether the Board should create an additional kind of PAL loan, referred to as PALs III, which would be even more flexible than what the Board proposed in the PALs II NPRM. Before proposing a PALs III loan, the PALs II NPRM sought to gauge industry demand for such a product, as well as solicit comment on what features and loan structures should be included in a PALs III loan.

The Board received 54 comments on the PALs II NPRM from 5 credit union trade organizations, 17 state credit union leagues, 5 consumer advocacy groups, 2 state and local governments, 2 charitable organizations, 2 academics, 2 attorneys, 3 credit union service organizations, 14 credit unions, and 2 individuals. A majority of the commenters supported the Board's proposed PALs II framework but sought additional changes to provide FCUs with more regulatory flexibility. These commenters focused on ways to increase the profitability of PALs loans such as by allowing FCUs to make larger loans with longer maturities, or charge higher fees and interest rates.

Some commenters strongly opposed the proposed PALs II framework. These commenters argued that the proposed framework could blur the distinction between PALs and predatory payday loans, which could lead to greater consumer harm. One commenter in particular argued that the Board has not fully explained why the proposed PALs II framework will encourage more FCUs to offer PALs loans to their members. Instead, these commenters urged the Board to focus on methods to curtail predatory lending by credit unions outside of the PALs I rule and to address potential abuses regarding overdraft fees.

Most commenters offered at least some suggestions on the creation of a PALs III loan. An overwhelming majority of these comments related to increasing the allowable interest rate for PALs III loans and giving FCUs greater flexibility to charge a higher application fee. The commenters that were opposed to the proposed PALs II framework similarly were opposed to the creation of a PALs III loan for the reasons noted above.

With the exception of reconsidering the proposed removal of the limit on the number of PAL loans in a rolling 6-month period, the Board is adopting the PALs II framework largely as proposed in the PALs II NPRM. The requirements for PALs II loans will be set out in a new paragraph of the NCUA's general lending rule, § 701.21(c)(7)(iv). The final rule allows an FCU to offer a PALs II loan to a member for any amount up to a maximum loan amount of $2,000. The PALs II loan must carry a loan term of at least 1 month with a maximum loan maturity of 12 months. The FCU may make such a loan immediately upon the borrower establishing membership in the credit union. However, an FCU may only offer one type of PALs loan to a member at any given time. All other requirements of the PALs I rule will continue to apply to PALs II loans including the prohibition against rollovers, the limitation on the number of PALs loans that an FCU can make to a single borrower in a given period, and the requirement that each PALs II loan fully amortize over the life of the loan.

Additionally, the final rule prohibits an FCU from charging any overdraft or non-sufficient funds (NSF) fees in connection with any PALs II loan payment drawn against a borrower's account. This includes overdraft fees or NSF fees that an FCU could assess against the borrower for paying items presented for payment after the PALs II loan payment creates a negative balance in the borrower's account. As discussed below, while the Board believes that reasonable and proportional fees assessed in connection with an overdraft loan are appropriate in most cases to compensate an FCU for providing an important source of temporary liquidity to borrowers, the Board has serious fairness concerns regarding this practice in connection with PAL loans given the unique characteristics of payday loan borrowers and the Board's stated goal of putting individuals on a path to mainstream financial products and services.

Lastly, the final rule does not take any immediate action with regard to PALs III loans. The Board has taken the comments regarding a PALs III loan under advisement and will determine whether future action is necessary.

The Board is issuing this final rule pursuant to its plenary regulatory authority to administer the Federal Credit Union Act (FCU Act)  25 and its specific authority to adopt rules and regulations that it deems necessary or appropriate to ensure the safety and soundness of the credit union system and the National Credit Union Share Insurance Fund (NCUSIF). 26 Given the historic mission of credit unions to serve individuals of modest means, the importance of providing these individuals with a realistic pathway towards mainstream financial products and services, and the high fixed costs associated with offering viable alternatives to payday loans, this final rule is an appropriate exercise of the Board's regulatory authority.

Because the PALs II NPRM proposed to apply many of the requirements of the PALs I rule to PALs II loans, the Board received numerous comments regarding the PALs I rule. The Board addresses those comments below in a section-by-section analysis of the PALs I rule, § 701.21(c)(7)(iii). With the exception of one clarification regarding the aggregate concentration limit set out in § 701.21(c)(7)(iii)(A)( 8 ), the Board is not adopting any changes to the PALs I rule. However, in response to questions raised by several commenters, the Board does provide additional guidance below regarding application fees and underwriting criteria. Specific comments related to the PALs II NPRM are discussed in the section-by-section analysis of § 701.21(c)(7)(iv), which contains the new PALs II rule.

Section 701.21(c)(7)(iii)(A) permits an FCU to charge an interest rate that is 1000 basis points above the usury ceiling established by the Board under the NCUA's general lending rule. The current usury ceiling is 18 percent inclusive of all finance charges. 27 For PALs I loans, this means that the maximum interest rate that an FCU may charge for a PAL is currently 28 percent inclusive of all finance charges.

Many commenters requested that the Board increase the maximum interest rate that an FCU may charge for a PALs loan to 36 percent. These commenters noted that a 36 percent maximum interest rate would mirror the rate used by the Consumer Financial Protection Bureau (CFPB or Bureau) to determine whether certain high-cost loans are “covered loans” within the meaning of the Bureau's Payday, Vehicle Title, and Certain High-Cost Installment Loans Rule (payday lending rule)  28 and maximum interest rate allowed for active duty service members under the Military Lending Act, 29 providing a measure of regulatory uniformity for FCUs offering PALs loans. These commenters also argued that increasing the maximum interest rate to 36 percent would allow FCUs to compete more effectively with insured depository institutions and payday lenders for market share in this market.

In contrast, two commenters argued that a 28 percent interest rate is sufficient for FCUs. These commenters stated that on higher dollar loans with longer maturities, the current maximum interest rate of 28 percent is enough to allow an FCU to make PALs loans profitably. Another commenter noted that many credit unions are able to make PALs loans profitably at 18 percent, which it believed is evidence that the higher maximum interest rate is unnecessary.

Since the Board originally adopted the PALs I rule, it has observed substantial ongoing changes in the payday lending marketplace. Given all of these developments, the Board does not believe it is appropriate to adjust the maximum interest rate for PALs loans, whether a PALs I loan or PALs II loan, without further study. Furthermore, the Board notes that both the Bureau's payday lending rule and the Military Lending Act use an all-inclusive interest rate limit that may or may not include some of the fees, such as an application fee, that are permissible for PALs loans. Accordingly, the Board will continue to consider the commenters' suggestions and may revisit the maximum interest rate allowed for PALs loans if appropriate.

Section 701.21(c)(7)(iii)(A)( 3 ) limits the number of PALs I loans that an FCU can make to three in a rolling 6-month period to any one borrower. An FCU also may not make more than one PALs I loan at a time to a borrower. To account for the adoption of the PALs II rule, the final rule amends this section to clarify that an FCU may not offer more than one PALs loan, whether a PALs I or PALs II loan, to a borrower at a time.

Some commenters argued that the limitation on the number of PALs loans that a borrower may receive at a given time would force borrowers to take out a payday loan if the borrower needs additional funds. However, the Board believes that this limitation places a meaningful restraint on the ability of a borrower to take out multiple PALs loans at an FCU, which could jeopardize the borrower's ability to repay each of these loans. While a pattern of repeated or multiple borrowings may be common in the payday lending industry, the Board believes that allowing FCUs to engage in such a practice would defeat one of the purposes of PALs loans, which is to provide borrowers with a pathway towards mainstream financial products and services offered by credit unions.

Section 701.21(c)(7)(iii)(A)( 7 ) permits an FCU to charge a reasonable application fee, not to exceed $20, to all members applying for a PALs I loan. The Board interprets the term “application fee,” as used in the PALs I rule, consistently with that of the CFPB's Regulation Z. Accordingly, in order to qualify as an “application fee” under the PALs I rule, an FCU must use the charge to recover actual costs associated with processing an individual application for credit such as credit reports, credit investigations, and appraisals. 30 An application fee that exceeds the actual cost of processing a borrower's application is a finance charge under Regulation Z that must be included in the APR and measured against the usury ceiling in the NCUA's rules. 31

In response to the PALs II NPRM, several commenters argued that the current application fee limit of $20 is too low to allow an FCU to recover the actual costs of processing applications. The majority of these commenters recommended that the Board set the application fee limit between $40 and $50 to create an incentive for more FCUs to offer PALs loans to their members. Because of the limited underwriting involved with a PALs loan, the Board does not believe that an application fee limit between $40 and $50 is appropriate. While one commenter provided a revenue model to help illustrate the potential cost of making a PALs loan, a majority of the commenters have not provided sufficient data to support their conclusion that the $20 application fee limit is too low to allow any FCU to recover the actual costs of processing applications. Furthermore, the Board believes that an increased application fee limit creates unnecessary potential for abuse by an FCU that may use a higher application fee as concealed interest to compensate the credit union for the risk of loss associated with making a PALs loan.

Other commenters asked the Board to clarify whether an application fee may reflect staff and technology costs, investing in loan processing automation, third-party service provider costs, and advertising. As noted above, the Board interprets the term “application fee” in the PALs I rule consistently with Regulation Z. An application fee must reflect the actual and direct costs associated with processing an individual application. While certain third-party service provider costs may be included in the application fee, especially if the FCU offers a PALs loan through a third-party vendor and passes any costs associated with using that vendor onto the member borrower, the Board does not believe that other costs, such as investing in loan processing automation or advertising costs, are actual and direct costs associated with processing a borrower's application. Rather, these costs are general business expenses incurred as part of credit union operations and do not relate to costs specifically incurred processing a borrower's PALs loan application.

One commenter stated that the Board should only permit one application fee per year. This commenter argued that the limited underwriting of a PALs loan does not justify allowing an FCU to charge an application fee for each PALs loan. Another commenter similarly requested that the Board adopt some limit on the number of application fees that an FCU may charge for PALs loans in a given year. The Board appreciates the commenters concerns about the burden excessive fees place on borrowers. This is particularly relevant in this area. However, the Board must balance the need to provide a safe product for borrowers with the need to create sufficient incentives to encourage FCUs to make PALs loans. The Board believes that its current approach of allowing FCUs to charge a reasonable application fee, consistent with Regulation Z, which does not exceed $20, provides the appropriate balance between these two objectives.

Several commenters also suggested that the Board permit an FCU to charge a monthly service fee for PALs loans. As noted above, the Board interprets the term “finance charge,” as used in the FCU Act, consistently with Regulation Z. A monthly service fee is a finance charge under Regulation Z. 32 Consequently, the monthly service fee would be included in the APR and measured against the usury ceiling in the NCUA's rules. Therefore, while the PALs I rule does not prohibit an FCU from charging a monthly service fee, the Board believes that such a fee will be of little practical value to an FCU because any monthly service fee income likely would reduce the amount of interest income an FCU could receive from the borrower or would push the APR over the applicable usury ceiling.

Section 701.21(c)(7)(iii)(A)( 8 ) requires an FCU to include a limit on the aggregate dollar amount of PALs I loans in its written lending policies. Under no circumstances may the total amount of PALs I loans be greater than 20 percent of the FCU's net worth. This provision also requires an FCU to adopt appropriate underwriting guidelines to minimize the risks related to PALs I loans. A set of best practices for PALs I loan underwriting is included as guidance in § 701.21(c)(7)(iii)(B)( 2 ).

The final rule amends § 701.21(c)(7)(iii)(A)( 8 ) to clarify that the 20 percent aggregate limit applies to both PALs I and PALs II loans. The Board adopted this limit in the PALs I rule as a precaution to avoid unnecessary concentration risk for FCUs engaged in this type of activity. While the Board indicated that it might consider raising the limit later based on the success of FCU PAL programs, the Board has insufficient data to justify increasing the aggregate limit for either PALs I or PALs II loans at this time. Rather, based on the increased risk to FCUs related to high-cost, small-dollar lending, the Board believes that the 20 percent aggregate limit for both PALs I and PALs II loans is appropriate. The final rule includes a corresponding provision in § 701.21(c)(7)(iv)( 8 ) to avoid any confusion regarding the applicability of the aggregate limit to PALs I and PALs II loans.

Many commenters asked the Board to exempt low-income credit unions (LICUs) and credit unions designated as community development financial institutions (CDFIs) from the 20 percent aggregate limit for PALs loans. These commenters argued that making PALs loans is part of the mission of LICUs and CDFIs and, therefore, the Board should not hinder these credit unions from making PALs loans to their members. Another commenter requested that the Board eliminate the aggregate limit for PALs loans entirely for any FCU that offers PALs loans to their members. The Board did not raise this issue in the PALs II NPRM. Accordingly, the Board does not believe it would be appropriate under the Administrative Procedure Act to consider these requests at this time. However, the Board will consider the commenters' suggestions and may revisit the aggregate limit for PALs loans in the future if appropriate.

Other commenters to the PALs II NPRM asked for clarification regarding the underwriting criteria that an FCU must use in connection with a PALs loan. Specifically, commenters requested guidance on whether an FCU should consider a borrower's debt burden in addition to monthly income or deposit activity when making a PALs loan. The Board has not historically required specific underwriting standards for PALs loans. Rather, the Board has allowed an FCU to develop its own lending policies based on its risk tolerance. 33 At a minimum, however, the Board has recommended that an FCU develop underwriting standards that “account for a member's need for quickly available funds, while adhering to principles of responsible lending.”  34 This includes examining a borrower's “proof of employment or income, including at least two recent paycheck stubs” to determine a borrower's repayment ability as well as “developing standards for maturity lengths and loan amounts so a borrower can manage repayment of the loan.”  35

The Board continues to believe that an FCU is in the best position to develop its own underwriting standards based on its risk tolerance as long as those standards are consistent with responsible lending principles. While the Board has historically only provided guidance on minimum standards for determining a borrower's recurring income as the key criteria for eligibility for a PALs loan, that does not mean that an FCU may ignore a borrower's debt burden when determining whether to grant a PALs loan. Rather, the FCU must consider the borrower's entire financial position, including debt burden, and make an informed judgment consistent with responsible lending principles regarding whether to extend a PALs loan to a borrower. Accordingly, the FCU should conduct some inquiry into whether the borrower can manage to repay the PALs loan without the need for additional PALs loans or traditional payday loans. When considering the application of a member with prior a history at the credit union, a review of credit and debit activity in their account may be sufficient to make this determination.

The final rule creates a new provision, § 701.21(c)(7)(iv), that sets forth the requirements for PALs II loans. In the PALs II NPRM, a majority of commenters asked that the Board combine the PALs I rule and proposed PALs II rule together in a single PALs regulation. Most of the commenters argued strongly that one PALs loan regulation would reduce confusion and provide FCUs with greater flexibility to structure their PAL programs in ways that best serve their members.

A small number of commenters raised serious concerns regarding the applicability of the CFPB's payday lending rule  36 should the Board adopt any changes to the PALs I rule. The CFPB's payday lending rule establishes consumer protections for certain high-cost credit products, including payday loans, and deems some credit practices related to those products to be unfair or abusive in violation of the Consumer Financial Practices Act. 37 However, the CFPB's payday lending rule provides a “safe harbor” for any loan that is made by an FCU in compliance with the PALs I rule with an explicit cross-reference to § 701.21(c)(7)(iii). 38 These commenters argued that any changes to the PALs I rule may eliminate the safe harbor for FCUs in the CFPB's rule. To allow FCUs to continue to avail themselves of the safe harbor, the commenters requested that the Board adopt the PALs II rule as a separate provision within the NCUA's general lending rule. 39

The CFPB has proposed amendments to certain aspects of its payday lending rule. 40 Because the regulatory landscape with respect to payday lending remains somewhat uncertain until the Bureau completes the rulemaking process, the Board believes that adopting the PALs II rule as a separate provision within the NCUA's general lending rule is appropriate at this time to preserve the availability of the safe harbor for FCUs that offer PALs loans that conform to the requirements of the PALs I rule.

Current § 701.21(c)(7)(iii)(A)( 6 ) requires a borrower to be a member of an FCU for at least one month before the FCU can make a PALs I loan to that borrower. 41 However, an FCU may establish a longer period as a matter of business judgment. The PALs II NPRM proposed to remove this minimum membership time requirement for PALs II loans. The purpose of this change was to allow an FCU to make a PAL II loan to any member borrower that needs access to funds immediately and would otherwise turn to a payday lender to meet that need.

Many of the commenters that addressed this issue favored removing the minimum membership time requirement with respect to PALs II loans. These commenters argued that this change would provide an FCU with the flexibility necessary to serve member borrowers that need immediate access to temporary liquidity who might otherwise turn to a payday lender. In contrast, a few commenters argued against this change, noting that that a minimum membership requirement is a prudent lending practice that helps an FCU establish a meaningful relationship with a potential borrower before offering a PALs II loan to that borrower.

The Board agrees that establishing a meaningful relationship with a potential borrower is a prudent lending practice and protects an FCU from certain risks. Accordingly, the Board encourages FCUs to consider establishing a minimum membership requirement as a matter of sound business judgment. However, the Board believes that granting PALs II loans to member borrowers, who need immediate access to funds, is a better alternative than having those borrowers take out predatory payday loans and wait for 30 days before rolling that predatory payday loan over into a PALs II loan, or worse, never applying for a PALs II loan. Therefore, the Board is adopting this aspect of the PALs II NPRM as proposed. The Board notes, however, that this final rule does not prohibit a credit union from setting a minimum membership term, but it is not required to do so.

The PALs I rule limits the principal amount of a PALs I loan to not less than $200 or more than $1,000. 42 In contrast, the PALs II NPRM proposed to allow an FCU to offer a PALs II loan with a loan amount up to $2,000 without any minimum loan amount. The Board believes that a higher maximum and no minimum loan amount will allow an FCU to meet the demands of more segments of the payday loan market. Furthermore, the PALs II NPRM provided that a higher maximum loan amount will allow some borrowers to cover a larger financial emergency or to consolidate multiple payday loans into a PALs II loan, thereby providing a pathway to mainstream financial products and services offered by credit unions.

Many commenters argued against the $2,000 maximum loan amount as too low. These commenters argued that $2,000 is insufficient to cover most large financial emergencies that prompt a borrower to resort to a payday loan or to allow a borrower to consolidate all of the borrower's payday loans. Some of these commenters, however, also argued that a larger maximum loan amount would be more profitable and allow an FCU to make sufficient interest to cover the cost of this type of lending.

In contrast, some commenters argued that allowing an FCU to charge a 28 percent APR for a $2,000 PALs II loan is a slippery slope to allowing an FCU to operate outside of the usury ceiling. These commenters noted that larger, longer-term loans provide increased revenue to the credit union and, therefore, the Board should not adopt a special exception from the general usury ceiling for these types of products.

While the Board recognizes that $2,000 may be insufficient to cover a larger financial emergency or to allow a borrower to consolidate a considerable number of payday loans, it nevertheless believes that allowing an FCU to offer a $3,000 or $4,000 loan at 28 percent interest is too high a limit and would violate the spirit of the FCU Act. In adopting the PALs I rule, the Board reluctantly established a separate usury ceiling for PALs I loans after a careful determination than an FCU could not provide a reasonable alternative to a payday loan under the general usury ceiling. By allowing an FCU to charge a higher interest rate, the Board sought to create a regulatory structure that allowed an FCU to offer a responsible payday loan alternative to members in a prudent manner.

The Board believes that $2,000 is a reasonable limit for the vast majority of PALs II loan borrowers. Accordingly, the Board is also adopting this aspect of the PALs II NPRM as proposed.

Several commenters expressed support for removing the minimum loan amount as a means of allowing an FCU to tailor its PALs II program to the unique needs of its members. In contrast, other commenters argued that removing the minimum loan amount would result in a triple digit APR comparable to a traditional payday loan for any PALs II loan under $100 where the credit union also charges an application fee.

The Board believes that an FCU should have the flexibility to meet borrower demand to avoid the need for those borrowers to resort to a traditional payday loan. While the total cost of credit may be high for these loans, the PALs II rule provides significant structural safeguards not present in most traditional payday loans.

Furthermore, the Board does not believe it is prudent for an FCU to require a member to borrow more than necessary to meet the borrower's demand for funds. Establishing a minimum PALs II loan amount would require a borrower to carry a larger balance and incur additional interest charges to avoid an apparently high APR when a smaller PALs II loan would satisfy that borrower's need for funds without the additional interest charges. On balance, the Board believes that the borrower's real need to avoid additional charges outweighs the need to avoid the appearance of a higher APR for smaller PALs II loans. Accordingly, the Board is adopting this aspect of the PALs II NPRM as proposed.

Nevertheless, the Board is mindful that allowing an FCU to charge an application fee up to $20 in connection with a PALs II loan less than $100 is problematic. Depending on the facts and circumstances, the Board believes that charging a $20 application fee for a low amount financed may take unfair advantage of the inability of the borrower to protect his or her interests, especially where minimal underwriting is expected to be performed. The Board reminds commenters that the application fee is to recoup the actual costs associated with processing an application. And more importantly, the $20 maximum amount allowed under this rule is the ceiling, not the floor. Any application fee charged by an FCU should be commensurate with the level of underwriting necessary to process a PALs II loan. Accordingly, the NCUA Board will instruct examiners to thoughtfully scrutinize the application fee charged for a PALs II loan less than $200.

The PALs I rule currently limits loan maturities to a minimum of one month and a maximum of 6 months. 43 The PALs II NPRM proposed to allow an FCU to make a PALs II loan with a minimum maturity of one month and a maximum maturity of 12 months. The PALs II NPRM provided that the longer loan term will allow an FCU making a larger PALs II loan to establish a repayment schedule that is affordable for the borrower while still fully amortizing the loan.

All of the commenters that addressed this issue favored a maximum loan term of at least one year. A few commenters believed that a maximum loan term of one year is too short, allowing borrowers insufficient time to pay off larger PALs II loans. These commenters favored a more flexible maximum loan term to allow an FCU to establish a repayment schedule that is appropriate for the unique needs of each individual borrower. Other commenters advocated for the removal of any maximum maturity limit to allow an FCU the greatest amount of flexibility to establish an affordable repayment schedule. A few commenters also suggested that the Board increase the minimum loan term to 90 days to make PALs II loans safer for borrowers.

Each group of commenters made a reasonable argument why the Board should adopt a flexible maximum loan term. After considering these varied viewpoints, the Board has determined to finalize this aspect of the PALs II NPRM as proposed. Should the Board engage in any future rulemaking regarding PALs loans, it will further consider the commenters' suggestions along with any applicable data gathered on PALs II loans.

The PALs I rule currently prohibits an FCU from making more than three PALs I loans in a rolling 6-month period to a single borrower. 44 The PALs II NPRM proposed to remove that restriction for PALs II loans. However, an FCU would not be allowed not make more than one of any type of PALs loan, whether a PALs I or PALs II loan, to a single borrower at a time.

Many of the commenters that addressed this issue favored removing the limit on the number of PALs II loans that an FCU may make to a borrower over 6 months as long as the Board retained the restriction of making no more than one PALs loan to a single borrower at a time. These commenters argued that this would provide FCUs with added flexibility to meet the needs of their members, particularly those members that currently use payday loans as a source of temporary liquidity. Other commenters also favored removing the limit, but opposed retaining the limit of one loan per borrower at a time.

Some commenters opposed removal of the limit on the number of PALs II loans an FCU can make to a borrower in a 6-month period. These commenters argued that such a change would allow an FCU to churn loans each month, charging an application fee for each PALs loan, with little economic benefit to the borrower similar to a predatory payday loan. According to these commenters, this would create a strong incentive for FCUs to adopt a business model that maximizes application fee revenue at the expense of the borrower contrary to the purposes of PALs loans.

The Board has reconsidered this aspect of the proposed rule and agrees that removing the limit on the number of PALs II loans an FCU may make to a single borrower at a time may encourage some FCUs to adopt a business model that maximizes fee revenue at the expense of the borrower. The Board fashioned the structural safeguards in the PALs I rule to eliminate the business practices common in the predatory payday lending industry that trap borrowers in cycles of repeated borrowings. Accordingly, the Board is not adopting this aspect of the PALs II NPRM in the final rule.

The final rule adds a new § 701.21(c)(7)(iii)(A)( 8 ) prohibiting an FCU from charging an overdraft or NSF fee in connection with a PALs II loan payment drawn against a borrower's account. 45 In the PALs II NPRM, the Board asked whether the NCUA should prohibit overdraft or NSF fees charged in connection with any PALs loan payments. Half of the commenters that responded to this question answered in the affirmative, arguing that an FCU could use overdraft fees in a predatory manner to extract additional revenue from a PALs loan borrower. These commenters also felt that allowing overdraft fees related to a PALs loan is contrary to providing borrowers with a meaningful pathway towards mainstream financial products and services because additional fees can have a devastating impact on the borrower's financial health and leave the borrower trapped in a “cycle of debt.”

The remainder of the commenters that responded to this question opposed prohibiting an FCU from charging overdraft fees related to PALs loans. These commenters argued that the decision to extend an overdraft loan and charge overdraft fees should be business decisions for each individual FCU and that the Board should not treat overdraft or NSF fees charged in connection with a PALs loan payment any differently from other circumstance when a borrower overdraws an account to make a loan payment. Finally, some cautioned that prohibiting overdraft or NSF fees could pose a safety and soundness risk to an FCU if a borrower routinely overdraws an account because of a PALs loan.

The Board agrees that the decision to extend an overdraft loan to a borrower is a business decision for each FCU to make in accordance with its own risk tolerance. Generally, the Board also believes that an FCU charging a reasonable and proportional overdraft fee in connection with an overdraft loan is appropriate in most cases to compensate the credit union for providing an important source of temporary liquidity to borrowers. However, the Board has serious fairness  46 concerns regarding the potential harm to borrowers caused by allowing an FCU to charge overdraft or NSF fees in connection with a PALs II loan payment given the increased principal amount allowed for PALs II loans.

Charging overdraft fees related to a PALs II loan payment is likely to cause substantial borrower harm. 47 The Board envisions PALs II loan borrowers typically will be in a vulnerable financial position and unable to take on additional expenses. Charging an overdraft fee in this situation will likely weaken the borrower's financial position further and can have cascading consequences including an inability to repay the PALs II loan. Moreover, charging an overdraft fee in addition to requiring repayment of the overdrawn balance makes the borrower even less likely to meet other expenses or obligations.

This type of harm is also not reasonably avoidable by the borrower. 48 A borrower cannot reasonably avoid injury that results from an unpredictable event. 49 The decision whether to extend an overdraft loan and charge an overdraft fee, rests entirely with the FCU and not with the borrower. Accordingly, the borrower does not have an ability to anticipate which items that could overdraw the account that the FCU will honor and take appropriate action to minimize the potential for overdraft fees. Even if the borrower, in the abstract, should have the ability to anticipate such an event, behavioral economics research shows that borrowers are prone to hyperbolic discounting of the risk of potential negative events, making such an ability to anticipate the overdraft more theoretical than actual. 50

Moreover, a borrower cannot reasonably avoid injury that results from an involuntary event. 51 The Federal Trade Commission (FTC) has compiled an extensive factual record showing that “the precipitating cause of default is usually a circumstance or event beyond the debtor's immediate control.”  52 Accordingly, “among those defaults that do occur, the majority are not reasonably avoidable by consumers. Instead, default is a response to events that are largely beyond the consumer's control.”  53 Although some precaution “can reduce the risk of default . . . no reasonable level of precautions can eliminate the risk. Moreover, some consumers are unable to take various precautionary steps.”  54 While an overdraft loan prevents a borrower from defaulting, many of the same circumstances that would cause a borrower to default would also cause a borrower to overdraw an account. Furthermore, in the case of PALs II loan borrowers, the member borrower may have limited ability to take precautionary steps to limit the harm caused by overdrafts given the borrower's financial position.

Allowing an FCU to charge overdraft fees related to a PALs II loan payment offers an insubstantial benefit to borrowers or competition in the payday lending marketplace when measured against the potential for substantial borrower harm. 55 The Board recognizes that allowing overdraft or NSF fees will make an FCU more likely to extend an overdraft loan to provide temporary liquidity for a PALs II loan borrower. However, the tradeoff for that liquidity is the potential for additional overdraft fees that could cause the borrower to experience other negative consequences such as the loss of a vehicle or eviction while trying to pay off overdraft fees. Moreover, while the Board acknowledges that this provision could result in borrowers receiving less overdraft loans or FCUs receiving less fee income, the Board believes that overdraft loans related to PALs II loans leave the borrower less financially stable and that FCUs already receive sufficient income through application fees and higher APRs charged on PALs II loan balances. Accordingly, the Board believes, on balance, that potential borrower harm outweighs potential tangible benefits.

Finally, the Board believes that allowing overdraft fees related to a PALs II loan payment is contrary to one of the goals of PALs loans, 56 which is to provide borrowers with meaningful pathways towards mainstream financial products and services offered by credit unions. Accordingly, the Board is adopting a provision in the final rule to prohibit an FCU from charging an overdraft or NSF fee in connection with a PALs II loan payment drawn against a borrower's account. It may consider imposing similar requirement on all PALs loans in a future rulemaking should the Board determine that such a restriction is necessary for all PALs loans.

The Board recognizes that certain automated internal processes may cause an FCU to violate this prohibition on charging an overdraft or NSF fee in connection with a PALs II loan payment inadvertently. The Board notes that any FCU that charges an overdraft or NSF fee in connection with a PALs II loan payment should immediately refund the charge to the borrower. If the FCU refunds the charge to the borrower, the Board will not consider the FCU to have violated this aspect of the PALs II rule.

The Regulatory Flexibility Act requires the NCUA to prepare an analysis to describe any significant economic impact a regulation may have on a substantial number of small entities (primarily those under $100 million in assets). 57 This rule will provide a limited number of FCUs making PALs with additional flexibility to make such loans. Accordingly, the Board believes that the rule will not have a significant economic impact on a substantial number of small credit unions. Therefore, a regulatory flexibility analysis is not required.

The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) provides generally for congressional review of agency rules. The NCUA triggers a SBREFA reporting requirement when the agency issues a final rule as defined by section 551 of the Administrative Procedure Act. As required by SBREFA, the NCUA submitted this final rule to the Office of Management and Budget (OMB) for it to determine if the final rule is a “major rule” for purposes of SBREFA. The OMB determined that the rule is not major. The NCUA also will file appropriate reports with Congress and the Government Accountability Office so this rule may be reviewed.

In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ) (PRA), the NCUA may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid OMB control number. For purposes of the PRA, an information collection may take the form of a reporting, recordkeeping, or a third-party disclosure requirement, referred to as a paperwork burden. The information collection requirements of § 701.21 of NCUA's regulations are assigned OMB control number 3133-0092 and this rule would not impose any new paperwork burden.

The NCUA has determined that this final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999. 58

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. 59 The NCUA, an independent regulatory agency, as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. The final rule 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. The NCUA has therefore determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

For the reasons stated above, the National Credit Union Administration amends 12 CFR part 701 as follows:

Discussion

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0276R1, dated January 11, 2019; corrected January 15, 2019 (“EASA AD 2018-0276R1”) (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A330-200 Freighter, A330-200, and A330-300 series airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A330-200 Freighter, A330-200, and A330-300 series airplanes. The NPRM published in the Federal Register on May 16, 2019 (84 FR 22075). The NPRM was prompted by an analysis conducted on Airbus SAS Model A330-200 Freighter, A330-200, and A330-300 series airplanes that identified structural areas that are susceptible to WFD. The NPRM proposed to require reinforcement modifications of various structural parts of the fuselage, and applicable related investigative and corrective actions if necessary.

The FAA is issuing this AD to address structural areas that are susceptible to WFD, which, if not corrected, could lead to crack initiation and undetected propagation, reducing the structural integrity of the airplane, possibly resulting in rapid depressurization and consequent injury to occupants. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment. Commenters Christopher Cracraft, Samuel Hazo, and American Airlines (AAL) stated that they support the NPRM.

AAL requested that the FAA provide a statement in the final rule confirming its approval of later-approved service information since the FAA rarely allows such practice without an alternative method of compliance (AMOC).

This AD does not exclude the “Ref. Publications” section of EASA AD 2018-0276R1, so that section is applicable to this AD, which addresses the commenter's concern. The FAA does not find it necessary to provide an additional statement regarding this issue in this AD. Therefore, the FAA has not changed this AD regarding this issue.

Delta Airlines (DAL) generally supported the NPRM but requested that the FAA allow operators to use their CICs, which are controlled by their FAA-principal maintenance inspector (PMI), for their corrosion prevention and control program (CPCP). DAL stated that the instructions in the service information include the reapplication of CICs. DAL commented that the CICs do not always align with the CIC products specified in the service information, which forces operators to apply for an AMOC for use of their preferred CICs.

In addition, DAL stated that corrosion is not the subject of the unsafe condition in the proposed AD, and operators should be able maintain their airplanes at their discretion through their FAA-accepted programs. DAL commented that CICs that are PMI accepted have shown an equivalent level of safety, and their use should continue to be accepted since they are not the subject of the unsafe condition in the NPRM.

The FAA disagrees with the commenter's request. The CICs are identified in certain Airbus service information under tasks that are identified as “required for compliance” (RC), and that service information is specified in the MCAI, which is incorporated by reference in this AD. Therefore, any substitutions or changes to procedures or tests identified as RC require approval of an AMOC. Under the provisions of paragraph (j)(1) of this AD, the FAA will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that the change provides an acceptable level of safety. The FAA has not changed this AD regarding this issue.

AAL requested that the FAA issue one proposed AD for each of the 24 service documents specified in EASA AD 2018-0276R1 as a way to control the actions and thresholds. AAL stated that one proposed AD per service document would alleviate the need for multiple revisions to a single “master” AD if issues arise in a particular service document. AAL also commented that if the “master” AD is revised or superseded, it must revise each internal document ( i.e., engineering orders (E.O.)) that affects that AD versus just the one specific E.O. that matches the service information that resulted in the AD revision. AAL commented that revising internal documents also affects AMOCs. AAL stated that revising internal documents is a heavy burden on the operator and on the local FAA authority tasked to review its documents for compliance.

AAL commented that issuing one “master” AD places a burden on its information technology (IT) system. AAL stated that its maintenance tracking system (“SCEPTRE”) permits the creation of one tracking method for one AD, and will not sufficiently be able to track multiple service information thresholds under one AD as its system does not support this.

In addition, AAL stated that it must report its AD status to the FAA and that ADs for all airplane numbers must show the AD compliance date or forecasted due date on the report. AAL commented that the thresholds on several of the service documents are so far out that they may never be reached, and the AD report would never show compliance even though the operator is taking actions on the lower-threshold service information.

The FAA disagrees with the commenter's request. The FAA has determined that in general, issuing one AD for the same unsafe condition (as EASA has done in this case) is more efficient and provides adequate time to correct the specified unsafe condition. While it is understandable that a manufacturer would like to minimize IT issues involving its AD tracking system, the FAA typically follows the recommendations of the State of Design Authority (in this case EASA) for the compliance time and method for addressing the unsafe condition. In addition, issuing one AD per service document would require additional public notice and comment period, further delaying the actions required to address the specified unsafe condition. The FAA has not changed this AD in this regard.

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

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

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

EASA AD 2018-0276R1 describes procedures for reinforcement modifications of various structural parts of the fuselage, and applicable related investigative and corrective actions if necessary. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 104 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A300 series airplanes; Model A300-600 series airplanes; and Airbus SAS Model A310 series airplanes. The NPRM published in the Federal Register on June 25, 2019 (84 FR 29821). The NPRM was prompted by a report indicating that the THS actuator ball nut trunnion lower attachment was missing parts. The NPRM proposed to require a one-time detailed inspection of the THS actuator right-hand spherical bearing and retaining parts (bolt, tab washer, and end cap) for correct installation of the retaining parts and correct bolt position, and applicable corrective actions.

The FAA is issuing this AD to address missing THS actuator right-hand spherical bearings and retaining parts from the THS actuator ball nut trunnion lower attachment, which could lead to THS actuator failure, possibly resulting in loss of control of the airplane.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0078, dated March 29, 2019 (“EASA AD 2019-0078”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 series airplanes; Airbus SAS Model A300-600 series airplanes; and Airbus SAS Model A310 series airplanes. The MCAI states:

The FAA has given the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. FedEx stated that it has no objection to the NPRM.

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

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

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

EASA AD 2019-0078 describes procedures for a one-time detailed inspection of the THS actuator right-hand spherical bearing and retaining parts for correct installation of the retaining parts and correct bolt position, and applicable corrective actions. Corrective actions include torqueing and securing the bolt with new lockwire, or installing a new dowel, end cap, washer, and bolt, and securing with new lockwire. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition repairs that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition repairs:

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-22-13, Amendment 39-19486 (83 FR 55617, November 7, 2018) (“AD 2018-22-13”). AD 2018-22-13 applied to certain Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on April 8, 2019 (84 FR 13843). The NPRM was prompted by a technical issue detected on the inboard aileron electrohydrostatic actuators that caused potential erroneous monitoring of those actuators. The NPRM proposed to continue to require revising the existing AFM to provide the flightcrew with updated procedures related to inboard aileron fault operations. The NPRM also proposed to require modifying the ECAM procedures by installing an ATQC and activating an ECAM temporary change. The FAA is issuing this AD to address possible in-flight loss of inboard aileron control, consequent increased fuel consumption due to the resulting drag, and reduced control or performance of the airplane if one engine is also inoperative.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, issued EASA AD 2018-0213R1, dated November 9, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2019-0193.

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

The Air Line Pilots Association, International (ALPA), and commenters Christian Maldonado, Claudia Galica, and Cristian Silva supported the NPRM.

Delta Airlines, Inc. (Delta), requested that the FAA revise paragraph (h)(1)(ii) of the proposed AD to allow installation of ATQC version 5 for FWS standard S5/2.2, in accordance with Airbus Service Bulletin A350-31-P032, dated February 28, 2019, instead of ATQC version 4. Delta asserted that version 5 is the next evolution and encompasses the items in version 4, so compliance would be maintained with the version 4 improvements. Delta added that allowing installation of version 5 in the proposed AD would prevent the need to request approval of an alternative method of compliance to install version 5.

The FAA partially agrees with the commenter's request. ATQC version 5 has also been found to mitigate the unsafe condition and is an acceptable method of compliance for this AD. However, version 5 cannot be installed if version 4 has not yet been installed. Therefore, all airplanes must install version 4, and any airplane may have version 5 installed afterwards. The FAA has revised paragraph (h)(1)(ii) accordingly.

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

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

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

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

Airbus issued the following service information:

Service Bulletin A350-31-P028, dated September 17, 2018, describes procedures for installing ATQC standard V4 for FWS standard S4/2.0.

Service Bulletin A350-31-P029, dated September 17, 2018, describes procedures for installing ATQC standard V4 for FWS standard S5/2.2.

Service Bulletin A350-31-P030, dated September 17, 2018, describes procedures for activating ECAM temporary change code No. 27AF.

Service Bulletin A350-31-P032, dated February 28, 2019, describes procedures for installing ATQC standard V5 for FWS standard S5/2.2.

Airbus A350 Temporary Revision (TR) 113, Issue 1, dated August 17, 2018, provides updated procedures related to inboard aileron fault operations. (This document was originally incorporated by reference in AD 2018-22-13 as of November 23, 2018 (83 FR 55617, November 7, 2018). However, AD 2018-22-13 had identified this TR with an incorrect, pre-approval date of July 27, 2018. The FAA has provided the correct date of the TR throughout this AD.)

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

The FAA estimates that this AD affects 11 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0093, dated April 26, 2019 (“EASA AD 2019-0093”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A330-202, -243, -243F, -302, -323, and -343 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-202, -243, -243F, -302, -323, and -343 airplanes. The NPRM published in the Federal Register on July 3, 2019 (84 FR 31772). The NPRM was prompted by a report that cracks have been found within the ring gears of the SGRAs due to a change in the manufacturing process and inadequate post-production non-destructive testing for potential cracking. The NPRM proposed to require an inspection to determine the part number and serial number of the SGRAs, and replacement of each affected SGRA with a serviceable part.

The FAA is issuing this AD to address cracking of an SGRA, which, in combination with an independent failure on the second SGRA of the same slat surface, could lead to an uncontrolled movement of the affected slat surface in flight, or detachment of the slat surface, and could possibly result in damage to the stabilizers and reduced controllability of the airplane. See the MCAI for additional background information.

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

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

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

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

EASA AD 2019-0093 describes procedures for an inspection to determine the part number and serial number of the SGRAs, and replacement of each affected part with a serviceable part.

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

The FAA estimates that this AD affects 2 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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 the Class E airspace extending upward from 700 feet above the surface at St. James Municipal Airport, St. James, MN, to support IFR operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (84 FR 35043; July 22, 2019) for Docket No. FAA-2019-0550 to amend the Class E airspace extending upward from 700 feet above the surface at St. James Municipal Airport, St. James, MN. 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 7400.11D, dated August 8, 2019, and effective September 15, 2019, 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 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D 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 amends the Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile radius (decreased from a 7-mile radius) of the St. James Municipal Airport, St. James, MN; adds an extension 1.1 miles each side of the 147° bearing from the airport extending from the 6.4-mile radius to 10.4 miles southeast of the airport; and adds an extension 1 mile each side of the 327° bearing from the airport extending from the 6.4-mile radius to 10.2 miles northwest of the airport.

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

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

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

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

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 the 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 updates the legal descriptions of RNAV routes to avoid the use of similar sounding waypoint names.

RNAV routes Q-121 and Q-156 both include the waypoint TOUGH in their descriptions. Q-156 also includes a waypoint named TUFFY. Recently, with the extensive use of the routes, air traffic control facilities have identified a problem whereby TOUGH is being confused with TUFFY. To eliminate any confusion and enhance safety, the FAA is changing the TOUGH waypoint name to SWTHN in the descriptions of both Q-121 and Q-156. This action is a name change only. The geographic position of the waypoint is not changing and the current alignments of Q-121 and Q-156 are not affected.

United States Area Navigation Routes are published in paragraph 2006, of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

This document amends FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by changing the TOUGH waypoint name in the descriptions of RNAV routes Q-121 and Q-156 to SWTHN.

Since this action involves only editorial changes to the legal descriptions of RNAV routes and does not change the dimensions or operating requirements of the affected routes, I find that notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

The RNAV route modifications accomplished by this action are outlined below.

Q-121: Q-121 change the TOUGH waypoint name from “TOUGH” to “SWTHN.”

Q-156: Q-156 change the TOUGH waypoint name from “TOUGH” to “SWTHN.”

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. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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 airspace action of modifying two high altitude RNAV Q-routes by updating the waypoint name TOUGH to SWTHN has no potential to cause any significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment. Therefore, this proposed airspace action qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500-1508, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that 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:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Act requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The Act requires agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, without needing to provide notice and the opportunity for public comment required by 5 U.S.C. 553. The Act provides that any increase in a CMP shall apply to CMPs that are assessed after the date the increase takes effect, regardless of whether the underlying violation predated such increase. 1

The 2018 annual adjustment for FinCEN's regulations was published March 19, 2018 (83 FR 11876). That document inadvertently used the 2017 annual adjustment dates in the headings of columns 4 and 5 of the penalty table.

DoD now has a single DoD-level Privacy Program rule at 32 CFR part 310 (84 FR 14728) that contains all the codified information required for the Department. The DISA Privacy Act Program regulation at 32 CFR part 316, last updated on February 20, 1992 (57 FR 6074), is no longer required and can be removed.

It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since because it is based on the removal of policies and procedures that are either now reflected in another CFR part, 32 CFR 310, or are publicly available on the Department's website. To the extent that DISA internal guidance concerning the implementation of the Privacy Act within DISA is necessary, it will be issued in an internal document.

This rule is one of 20 separate component Privacy rules. With the finalization of the DoD-level Privacy rule at 32 CFR part 310, the Department eliminated the need for this component Privacy rule, thereby reducing costs to the public as explained in the preamble of the DoD-level Privacy rule published on April 11, 2019, at 84 FR 14728-14811.

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.

This final rule removes 32 CFR part 887, “Issuing of Certificates in Lieu of Lost or Destroyed Certificates of Separation,” which was codified on January 14, 1988 (53 FR 876), and never updated. It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing content which is covered in the NARA regulation at 36 CFR part 1233, “Transfer, Use, and Disposition of Records in a NARA Federal Records Center,” codified on October 2, 2009 (74 FR 51014), and most recently updated on March 30, 2018 (83 FR 13655). Part 1233 outlines the requirement to fill out a Standard Form 180, “Request Pertaining to Military Records.” NARA's regulation also directs military veterans and their next of kin to its website, which outlines procedures for requesting copies of military records held by the Services as well as NARA (Source: http://www.archives.gov/veterans/evetrecs ).

To the extent that internal Air Force procedures concerning military records are necessary, it will continue to be published in Air Force Instruction 36-2608, “Military Personnel Records System,” which was updated on October 26, 2015, and is available at http://static.e-publishing.af.mil/production/1/af_a1/publication/afi36-2608/afi36-2608.pdf.

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.

The Coast Guard will enforce special local regulations in 33 CFR 100.721 for the Clearwater Super Boat National Championship regulated area from 11:30 a.m. to 4 p.m. on September 29, 2019. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for the Clearwater Super Boat National Championship, § 100.721, specifies the location of the regulated area for the event which encompasses portions of the Gulf of Mexico. During the enforcement period only authorized race participants will be permitted to enter, transit through, anchor in, or remain in the Race Area. If you are an authorized operator of a vessel in the Race Area you must comply with the instructions of the Captain of the Port or a designated representative. On-scene designated representatives will direct spectator vessels to the Spectator Area and are to be anchored or operating at a “no wake speed” during the enforcement period. Persons or vessels wishing to obtain authorization to enter or remain within the regulated areas may contact the COTP by telephone at (727) 824-7506 or a designated representative via VHF radio on channel 16.

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

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 and contrary to the public interest. We must establish this safety zone immediately in order to ensure the safety of the public 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 impracticable and contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with salvage and over-water bridge repairs of the I-10 bridge.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Houston-Galveston (COTP) has determined that potential hazards associated with salvage and over-water bridge repairs that began on September 19, 2019, are a safety concern for vessel traffic transiting the navigable waterway of the San Jacinto River from the southern end of Southwest Shipyard, extending north of the I-10 bridge, just abreast of Buoy #14. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone from potential hazardous from salvage and over-water bridge repairs.

This rule establishes a safety zone from September 25, 2019, through December 24, 2019. The safety zone will cover the navigable waters of the San Jacinto River from the southern end of Southwest Shipyard, extending north of the I-10 bridge, just abreast of Buoy #14. The duration of the zone is intended to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone from potential hazardous from salvage and over-water bridge repairs. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. This rule will impact a small designated area of the San Jacinto River in order to support salvage and over-water bridge repairs from September 25, 2019 through December 24, 2019. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channels 13 and 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry to the navigable waters of the San Jacinto River from the southern end of Southwest Shipyard, extending north of the I-10 bridge, just abreast of Buoy #14, without prior approval from Coast Guard Sector Houston-Galveston COTP. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

To support its regulatory reform efforts as a participant in the Task Force, the USPTO assembled a Working Group on Regulatory Reform (Working Group), consisting of subject-matter experts from each of the business units that implement the USPTO's regulations, to consider, review, and recommend ways that the regulations could be improved, revised, and streamlined. In considering the revisions, the USPTO, through its Working Group, incorporated into its analyses all presidential directives relating to regulatory reform. The Working Group reviewed existing regulations, both discretionary rules and those required by statute or judicial order. The USPTO also solicited comments from stakeholders through a web page established to provide information on the USPTO's regulatory reform efforts and through the Department's Federal Register Notice titled “Impact of Federal Regulations on Domestic Manufacturing” (82 FR 12786, Mar. 7, 2017), which addressed the impact of regulatory burdens on domestic manufacturing. These efforts led to the development of candidate regulations for removal, based on the USPTO's assessment that these regulations were not needed and/or that elimination could improve the USPTO's body of regulations. This rule removes certain patent- and PTAB-related regulations in 37 CFR part 1 and part 42. As described below, USPTO also considered comments received on the proposed rule, which was published on January 19, 2018 (83 FR 2159). This final rule makes no changes to the repeals included in the proposed rule. Other rules removing regulations on other subject areas have been published separately.

This rule removes the regulations concerning reservation clauses, petitions from the refusal of a primary examiner to admit an amendment, and publication of amendments to the regulations in 37 CFR part 1. The rule also removes the regulations concerning limits that the Director can impose on the number of inter partes reviews and post-grant reviews in 37 CFR part 42.

In particular, this rule removes 37 CFR 1.79. Section 1.79 prohibits reservation clauses, i.e., it prohibits a pending patent application from containing a reservation for a future patent application of subject matter disclosed but not claimed in the pending application. An applicant's ability to claim benefit of a prior application is affirmatively provided elsewhere in statute and regulation, and the explicit prohibition of § 1.79 on reservation clauses (which do not confer this benefit) dates from a time when the mechanism for properly claiming benefit of a prior application was less clear and less fully developed in USPTO's regulations and guidance. The removal of § 1.79 is not an endorsement of reservation clauses nor an invitation for applicants to include reservation clauses in applications. The Office does not expect the use of reservation clauses to significantly increase, because such reservation clauses provide no legal benefit, regardless of § 1.79. For example, the inclusion of a reservation clause in a pending application would not change any of the requirements for a future application to benefit from the earlier filing date of the pending application. The authority for the future application to benefit from the earlier filing date of the pending application would stem, as it does now, from the fulfillment of requirements set forth in statutory and regulatory provisions in which a reservation clause plays no role, e.g., 35 U.S.C. 120 and 37 CFR 1.78. Nor would the inclusion of a reservation clause protect against rejections for statutory or nonstatutory double patenting. In view of the fact that the inclusion of a reservation clause provides no legal benefit, and given that the affirmative ability to claim benefit of a prior application is more fully and completely described elsewhere in USPTO's regulations and guidance (unlike when § 1.79 was first adopted), the prohibition of reservation clauses in § 1.79 is unnecessary.

Section 1.79 also permits a patent application disclosing unclaimed subject matter to contain a reference to a later-filed application of the same applicant or owned by a common assignee disclosing and claiming that subject matter. This provision of § 1.79 is duplicative and therefore unnecessary. Section 1.78 provides for cross-references to other applications, including cross-references to applications for which a benefit is not claimed, which encompasses the later-filed applications identified in § 1.79. Thus, applicants will continue to be able to include in a pending application a reference to a later-filed application as currently provided for in § 1.79.

This rule removes § 1.127, which also is duplicative. Section 1.127 indicates that a petition to the Director under 37 CFR 1.181 may be filed upon a refusal by a primary examiner to admit an amendment, in whole or in part. Section 1.127 is unnecessary. The language of § 1.181(a)(1) makes clear that any action or requirement of any examiner in the ex parte prosecution of an application, or in ex parte or inter partes prosecution of a reexamination proceeding, which is not subject to appeal to the PTAB or to a court, is petitionable to the Director. A refusal by a primary examiner to admit an amendment constitutes an action or requirement of an examiner and is not subject to appeal to the PTAB or to a court. Thus, applicants will continue to be able to petition to the Director under § 1.181 the refusal by a primary examiner to admit an amendment, in whole or in part.

This rule additionally removes 37 CFR 1.351. Section 1.351 states that all amendments to the regulations in 37 CFR part 1 will be published in the Official Gazette and in the Federal Register . Section 1.351 is unnecessary. In accordance with the requirements of the Administrative Procedure Act (APA) and guidance from the Office of Management and Budget (OMB), the Office publishes any amendments to 37 CFR part 1 in the Federal Register . The APA generally requires the Office to give public notice of any regulatory change, and OMB's guidance with respect to rulemaking makes clear that publication in the Federal Register is the required means for giving public notice. Given that publication in the Official Gazette is entirely duplicative of publication in the Federal Register , the Office no longer intends to make these duplicate publications of amendments to regulations in the Official Gazette.

Finally, this rule removes 37 CFR 42.102(b) and 42.202(b), both of which are now out of date. Section 42.102(b) provides that the Director may impose a limit on the number of inter partes reviews that may be instituted during each of the first four one-year periods that the Leahy-Smith America Invents Act (AIA) is in effect. Section 42.202(b) has a similar provision for post-grant reviews. Neither rule remains necessary because the fourth anniversary of the effective date of the AIA has passed.

Removal of the regulations identified in this rule achieves the objective of making the USPTO regulations more effective and more streamlined, while enabling the USPTO to fulfill its mission goals. The USPTO's economic analysis shows that while the removal of these regulations is not expected to substantially reduce the burden on the impacted community, the regulations are nonetheless being eliminated because they are “outdated, unnecessary, or ineffective” regulations encompassed by the directives in Executive Order 13777.

The USPTO published a proposed rule on January 19, 2018, at 83 FR 2759, soliciting comments on the proposed amendments. In response, the USPTO received eight comments relevant to the proposed rule from five commenters. None of the comments expresses disapproval for the proposed amendments. Four of the comments propose additional rules for revision or removal. The comments are addressed below.

Two comments propose revising or removing 37 CFR 1.83(a). According to these comments, § 1.83(a), which states that “[t]he drawing in a nonprovisional application must show every feature of the invention specified in the claims,” is inconsistent with 35 U.S.C. 113, which states that “[t]he applicant shall furnish a drawing where necessary for the understanding of the subject matter sought to be patented.” The Office has considered the comments concerning § 1.83(a) but is not revising or removing the regulation. Consistent with 35 U.S.C. 113, Office regulations already limit the requirement to furnish a drawing to cases where the drawing is necessary for the understanding of the subject matter sought to be patented. See 37 CFR 1.81(a). Section 1.83(a) merely adds that when a drawing is required in accordance with 35 U.S.C. 113 and § 1.81(a), the drawing must show every feature of the invention specified in the claims. Moreover, § 1.83(a) permits conventional features, a detailed illustration of which is not essential for a proper understanding of the invention, to be illustrated in the drawing in the form of a graphical drawing symbol or a labeled representation ( e.g., a labeled rectangular box). Thus, § 1.83(a) strikes a balance between maintaining a high level of quality for prior art (drawings in accordance with § 1.83 improve the understanding of the claimed subject matter in pre-grant publications and issued patents) and mitigating the drawing burden on applicants.

Two comments propose revising or removing the requirement for a certified copy of the foreign application to be filed when making a claim for foreign priority under 37 CFR 1.55. One of the two comments proposes removing each instance of “certified” from § 1.55, such that § 1.55 instead would require only a copy of the foreign application. The other comment proposes allowing applicants to submit certified copies of foreign applications electronically through the Office's Electronic Filing System (EFS-Web), or in the alternative, eliminating the requirement for a certified copy.

The Office has considered the comments concerning § 1.55 but is not revising or removing the requirement for a certified copy of the foreign application to be filed when making a claim for foreign priority. A critical reason for the requirement under § 1.55 to provide a certified copy of a foreign patent application is that the foreign priority date could be a prior art date under 35 U.S.C. 102(a)(2). Without the requirement, the examiner and any member of the public interested in evaluating a 35 U.S.C. 102(a)(2) prior art date would be burdened with obtaining an actual certified copy of the priority document to do a complete analysis. This burden would be particularly acute for an examiner or member of the public seeking a certified copy from a jurisdiction with poor record-keeping practices.

Furthermore, the Office continues to make progress on alleviating applicants' burden of providing a certified copy under § 1.55 through its electronic priority document exchange (PDX) program. The PDX program facilitates compliance with the certified copy requirement under § 1.55 through two modes of exchange with participating foreign offices: Direct bilateral exchange and exchange via the World Intellectual Property Organization (WIPO) Digital Access Service (DAS) for Priority Documents. As of December 1, 2018, the Office electronically retrieves certified copies of foreign applications filed with 18 WIPO DAS depositing offices. For more information on the PDX program, visit https://www.uspto.gov/patents-getting-started/international-protection/electronic-priority-document-exchange-pdx. For instances in which the certified copy required by § 1.55 must be obtained from a jurisdiction not currently participating in the PDX program, the burden of providing the certified copy is mitigated by 37 CFR 1.55(j). Section 1.55(j) provides for an “interim copy” procedure that gives an applicant more time to obtain and file the actual certified copy.

One comment proposes revising the requirement for an assignee to establish its right to take action under 37 CFR 3.73(c) so that it no longer applies “to the original applicants named in patent applications subject to the AIA.” The Office has considered the comment concerning § 3.73(c) but is not revising the regulation. The language of § 3.73(c)(1) already excludes an assignee who is the original applicant from the purview of § 3.73(c) (“In order to request or take action in a patent matter, an assignee who is not the original applicant must establish its ownership of the patent property of paragraph (a) of this section to the satisfaction of the Director.”). As stated in § 3.73(a), “[t]he original applicant is presumed to be the owner of an application for an original patent, and any patent that may issue therefrom.”

One comment identifies a number of initiatives undertaken by the Office, including the Collaborative Search Pilot Program, the Cooperative Patent Classification system, Global Dossier, and the Patent Prosecution Highway. The comment states that as a result of the initiatives, the requirement under 37 CFR 1.98(a)(2) for an applicant to provide the Office copies of foreign patent documents is unnecessarily burdensome where the documents have been cited in the prosecution of another application, including an international application, for which the applicant has notified the Office. The comment proposes either removing § 1.98(a)(2) or revising § 1.98(d) so that it would not be necessary to provide a copy of any patent, publication, pending U.S. application or other information, if the patent, publication, pending U.S. application or other information was previously submitted to, or cited by, the Office in another application, including later-filed or co-filed U.S. or international applications and applications not relied on for an earlier effective filing date under 35 U.S.C. 120, and the other application has been properly identified in an information disclosure statement (IDS).

The Office has considered the comment concerning § 1.98(a)(2) and (d) but is not removing § 1.98(a)(2) or revising § 1.98(d). The relevant initiatives that the Office currently is undertaking, including relevant initiatives identified by the comment, are not sufficient to permit removing § 1.98(a)(2) or revising § 1.98(d) in the proposed manner. The Office, however, continues to make progress on reducing applicants' burden in connection with the duty of disclosure. As of November 1, 2018, the Office has implemented the first phase of the Access to Relevant Prior Art Initiative (RPA Initiative). See Access to Relevant Prior Art Initiative, 83 FR 53853 (Oct. 25, 2018). The RPA Initiative leverages electronic resources to improve examiners' access to relevant information from applicants' other related applications. In the first phase, the Office is importing the citations listed on forms PTO/SB/08 (or equivalents) and PTO-892 in the immediate parent application into the continuing application. The first phase consists of a targeted release of a newly developed interface to a subgroup of examiners from a limited number of selected art units. In subsequent phases of the RPA Initiative, the Office will consider providing examiners access to citation information from other sources such as other related U.S. applications, international applications under the PCT, and counterpart foreign applications of the same applicant. The selection of these sources and the timetable for expansion will be dictated, at least in part, by evaluating the first phase, including feedback on the RPA Initiative from the public and examiners. In addition, the USPTO plans to include more examiners in subsequent phases when the RPA Initiative proves scalable.

One comment notes that 37 CFR 1.53(f)(3)(ii) requires applicants to file an oath or declaration in compliance with 37 CFR 1.63, or a substitute statement in compliance with 37 CFR 1.64, no later than the date on which the issue fee for the patent is paid. The comment proposes revising § 1.53(f)(3)(ii) to provide a time period to correct a defective oath, declaration, or substitute statement submitted no later than the date on which the issue fee for the patent is paid, but found defective after the date at which the issue fee is paid. The Office has considered the comment concerning § 1.53(f)(3)(ii) but is not revising the regulation. The requested revision is precluded by statute. Specifically, 35 U.S.C. 115(f) states that “[t]he applicant for patent shall provide each required oath or declaration under subsection (a), substitute statement under subsection (d), or recorded assignment meeting the requirements of subsection (e) no later than the date on which the issue fee for the patent is paid.”

One comment generally supports the proposed amendments as meeting the stated objectives. The USPTO appreciates this input.

All of the comments are posted on the USPTO's website at https://www.uspto.gov/patent/laws-and-regulations/comments-public/comments-changes-eliminate-unnecessary-regulations.

Section 1.79: Section 1.79 is removed and reserved.

Section 1.127: Section 1.127 is removed and reserved.

Section 1.351: Section 1.351 is removed and reserved.

Section 42.102(b): Section 42.102(b) is removed and reserved.

Section 42.202(b): Section 42.202(b) is removed and reserved.

A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (Rule that clarifies interpretation of a statute is interpretive.); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (DC Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))). However, the Office chose to seek public comment before implementing the rule to benefit from the public's input.

B. Regulatory Flexibility Act: For the reasons set forth herein, the Senior Counsel for Regulatory and Legislative Affairs, Office of General Law, of the USPTO has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

This rule removes the provisions at 37 CFR 1.79, concerning the prohibition of reservation clauses, § 1.127, concerning petitions from refusal to admit amendment, and § 1.351, concerning the publication of amendments to rules. These regulations are removed because they are not necessary. This rule also removes 37 CFR 42.102(b) and 42.202(b), which provide that the Director may impose a limit on the number of inter partes reviews and post-grant reviews that may be instituted during each of the first four one-year periods that the AIA is in effect. These regulations are no longer necessary because the fourth anniversary of the effective date of the AIA has passed.

Removing these regulations achieves the objective of making the USPTO regulations more effective and more streamlined, while enabling the USPTO to fulfill its mission goals. The removal of these regulations is not expected to substantively impact parties. Parties either will continue to be able to take the same action under a different regulatory provision, or the rights or obligations of the parties will not change in any way. For these reasons, this rulemaking will not have a significant economic impact on a substantial number of small entities.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs): This rule is a deregulatory action under Executive Order 13771 (Jan. 30, 2017).

F. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

G. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

H. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

I. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

J. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

K. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

L. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), prior to issuing any final rule, the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this notice are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this notice is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

M. Unfunded Mandates Reform Act of 1995: The changes set forth in this notice do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

N. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

O. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

P. Paperwork Reduction Act: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This rulemaking does not involve an information collection that is subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549).

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

For the reasons stated in the preamble, the Office amends parts 1 and 42 of title 37 as follows:

The Postal Service published a final rule on October 9, 2009, (74 FR 52147-52148) announcing restrictions on the mailing of pieces weighing over 13 ounces bearing only postage stamps as the postage payment method.

To enhance the safety and security of Postal Service employees and customers, the Postal Service is now updating the Aviation Security Program, also known as the Anonymous Mail Program, to restrict the method of deposit for all mailpieces bearing stamps as the only postage payment method that weigh more than 10 ounces or that measure more than one half inch in thickness. Under the revised standards set forth below, domestic and international mailpieces that weigh more than 10 ounces or measure more than one half inch in thickness and bear only postage stamps as the postage payment method, may not be deposited into collection receptacles, including street, lobby, and apartment boxes, or other unattended locations. These stamped mailpieces also may not be picked up by a city, rural, or highway contract letter carrier for delivery, or through Pickup on Demand® service. Instead, mailpieces that bear only stamps as the postage payment method and that weigh more than 10 ounces or measure more than one half inch in thickness, must be presented by the sender at a Post Office® location.

For most consumers and businesses, there should be little impact. These restrictions do not apply to any mailpiece that weighs 10 ounces or less and measures one half inch or less in thickness, nor do they affect any mailpieces, regardless of weight or thickness, for which postage is paid with a method other than stamps, such as a postage evidencing system (meter or PC Postage®) or a permit imprint. Customers also will retain the opportunity to obtain a full range of mailing services at their local post offices. In view of these factors, and because of the need to act expeditiously to protect the safety and security of the public, customers, postal employees, and the mail, the Postal Service has determined that the notice and public comment procedure on this change would be impracticable and inconsistent with the public interest, and that this change should take effect as quickly as possible.

In addition, the Postal Service will update Mailing Standards of the United States Postal Service, International Mail Manual (IMM®), Hazardous, Restricted, and Perishable Mail, Publication 52, and applicable Quick Service Guides (QSGs) under separate cover.

For the above reasons, the Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1. We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

Accordingly, 39 CFR part 111 is amended as follows:

EPA is taking final action to approve changes to the Jefferson County portion of the Kentucky SIP that were provided to EPA through a letter dated March 15, 2018. 1 Specifically, EPA is finalizing approval of these SIP revisions that make changes to Jefferson County Regulation 6.13, Standard of Performance for Existing Storage Vessels for Volatile Organic Compounds, and Regulation 7.12, Standard of Performance for New Storage Vessels for Volatile Organic Compounds. 2 The SIP revisions update the current SIP-approved versions of Regulation 6.13 (Version 6) and Regulation 7.12 (Version 6) to Version 7 of each. The changes to Jefferson County Regulations 6.13 and 7.12 are administrative in nature and will better align the two regulations, reconciling their respective applicability based on the date of a facility's construction, modification, or reconstruction.

In a notice of proposed rulemaking (NPRM) published on June 5, 2019 (84 FR 26030), EPA proposed to approve the aforementioned changes to Regulations 6.13 and 7.12 in the Jefferson County portion of the Kentucky SIP, which address the control of emissions from existing and new VOC storage vessels, respectively. The NPRM provides additional details regarding EPA's action. Comments on the NPRM were due on or before July 5, 2019.

EPA received two comments from one commenter on its June 5, 2019, NPRM. These comments are provided in the docket for this final action. EPA has summarized and responded to the comments below.

Comment 1: The commenter notes the change of applicability dates in Regulation 6.13 and states that the Jefferson County regulations are based on Federal New Source Performance Standards (NSPS), Subpart K. “However, Subpart K only applies to vessels constructed, reconstructed, or modified after June 11, 1973 and prior to May 19, 1978,” states the commenter. The commenter also states that “Jefferson County's regulations seem to require more stringent standards” and suggests that EPA “confirm through formal notification from Kentucky and Jefferson County that they are allowed to impose more stringent standards than those by the federal government.”

Response 1: The change of applicability dates in Version 7 of Regulation 6.13 was made to eliminate an overlap that existed with respect to the applicability dates of Regulations 6.13 and 7.12. Under the previous versions of Regulations 6.13 and 7.12, facilities constructed, reconstructed, or modified after April 19, 1972, and before September 1, 1976, were subject to both Regulation 6.13 and 7.12. This redundancy prompted the District to change the date for Regulation 6.13 so that Regulation 6.13 applies to VOC storage vessels that commenced construction, modification, or reconstruction on or before April 19, 1972.

Regulations 6.13 and 7.12 are similar to the Federal NSPS, subpart K. However, by virtue of the VOC-storage-vessel capacity and the dates identified in Section 1, Applicability, of Regulations 6.13 and 7.12, both Regulations cover a wider range of facilities than does subpart K. The commenter seems to suggest that the larger applicability scope of the Jefferson County regulations as compared to that of subpart K makes the Jefferson County regulations more stringent than federal requirements. Regardless of whether or not that is true, state and local agencies are allowed under federal law to adopt regulations that are more stringent than those required by the CAA, and EPA is required by the Act to approve such SIP revisions if they meet the applicable requirements of the Act, as these revisions do. See Union Elec. Co. v. EPA, 427 U.S. 246, 262-65 (1976); 42 U.S.C. 7410(k)(3).

Likewise, with respect to state and local law, Kentucky law includes a stringency restriction with respect to regulations adopted by the Cabinet, 3 but the regulations of the District are not subject to such a limitation. Indeed, Kentucky law authorizes the District, through its Air Pollution Control Board, to adopt and enforce all orders, rules, and regulations necessary or proper to accomplish the purposes of Kentucky Revised Statutes Chapter 77. See Ky. Rev. Stat. § 77.180. Kentucky law also provides that an air pollution control district like the District is not prohibited from adopting regulations stricter than the state statutory or regulatory provisions that would otherwise apply to sources of air pollution within a district. See id. at § 77.170.

Comment 2: The commenter states, “Regulation 6.13 and 7.12 require sources to remain in compliance with this regulation for the rest of time unless the source changes its process to one not covered by this regulation.” The commenter believes this is “an attempt at codifying the `once in, always in' policy,” which EPA recently rescinded. The commenter states, “EPA should not allow the county or state to include this requirement into its SIP as EPA itself has stated it is illegal under the MACT standards so therefore it must be illegal under SIP rules.”

Response 2: The “once in always in” policy addressed the classification of major sources of hazardous air pollutants (HAPs) under section 112 of the CAA. EPA issued a new memorandum on January 25, 2018, which withdrew and replaced the “once in, always in” policy with guidance that sources of hazardous air pollutants previously classified as “major sources” may be reclassified as “area” sources when the facility limits its potential to emit HAP below major source thresholds. 4 EPA subsequently proposed to codify that guidance. See 84 FR 36304 (July 26, 2019). Here, the regulations that are being incorporated into the Kentucky SIP are local VOC ( i.e., precursor of ozone, a criteria pollutant) regulations being approved by EPA pursuant to CAA section 110, and thus are not subject to the “once in, always in” policy or its more recent replacement, which apply to sources of HAPs regulated pursuant to CAA section 112.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Jefferson County Regulation 6.13, Standard of Performance for Existing Storage Vessels for Volatile Organic Compounds, Version 7, and Regulation 7.12, Standard of Performance for New Storage Vessels for Volatile Organic Compounds, Version 7, both state effective January 17, 2018. These revisions are administrative in nature and will better align the two regulations, reconciling their respective applicability based on the date of a facility's construction, modification, or reconstruction, and the true vapor pressure. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 5

EPA is taking final action to approve the SIP revisions that make changes to the District's Regulation 6.13 and Regulation 7.12. These SIP revisions update the current SIP-approved versions of Regulation 6.13 (Version 6) and Regulation 7.12 (Version 6) to Version 7 of each in the Jefferson County portion of the Kentucky SIP. These rule revisions will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the Act. The changes are administrative in nature and clarify the regulations' applicability.

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

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” or “our” each mean “the EPA.”

Each state is required to submit to the EPA an implementation plan addressing regional haze visibility impairment for the first implementation period under 40 CFR 51.308. Under 40 CFR 51.308(g), 1 each state is then required to submit a progress report that evaluates visibility progress toward the RPGs for each Class I area within the state  2 and each Class I area outside the state  3 which may be affected by emissions from within the state. In addition, 40 CFR 51.308(h) requires states to submit, at the same time as the progress report, a determination of adequacy of the existing regional haze implementation plan. 4 The progress report for the first planning period is due five years after submittal of the initial regional haze SIP and must take the form of a SIP revision. Arkansas submitted its regional haze SIP for the first implementation period on September 9, 2008, 5 and the EPA partially approved and partially disapproved portions of it on March 12, 2012. 6 On June 2, 2015, Arkansas submitted its progress report regarding the initial 2008 regional haze SIP to the EPA in the form of a SIP revision under 40 CFR 51.308. The EPA promulgated a FIP (the Arkansas Regional Haze FIP) on September 27, 2016 to address the disapproved portions of the 2008 Arkansas Regional Haze SIP and then approved successive SIP revisions (the 2017 Arkansas Regional Haze NO X SIP revision and the 2018 Arkansas Regional Haze SO 2 and PM SIP revision)  7 that replaced a portion of those FIP elements. 8

On March 28, 2019, we published a notice of proposed rulemaking (NPRM) proposing to approve Arkansas' regional haze five-year progress report SIP, submitted by ADEQ on June 2, 2015. 9 In that document we proposed to approve Arkansas' regional haze progress report SIP since it meets the applicable regional haze requirements set forth in 40 CFR 51.308(g) and meeting the determination of adequacy provision under 40 CFR 51.308(h) for the first implementation period. We also proposed to find that the State of Arkansas fulfilled its requirement in 40 CFR 51.308(i) regarding state coordination with Federal Land Managers (FLMs). The published proposal provides a detailed description of Arkansas' progress report SIP submittal and the rationale for our proposed approval of it.

The public comment period for the proposal closed on April 29, 2019. We received two public comments concerning our proposed action. The comments are included in the publicly posted docket associated with this action at https://www.regulations.gov. We received an anonymous comment regarding the Mercury and Air Toxics Standards which is outside the scope of this action. We also received a comment letter dated April 29, 2019, from the Arkansas Affordable Energy Coalition (AAEC) regarding our proposal. The AAEC expressed general support for the proposed approval but also submitted a copy of the comments it previously submitted on December 31, 2018 on our proposed approval action on the August 8, 2018 Arkansas Regional Haze SO 2 and PM SIP revision (located in Docket No. EPA-R06-OAR-2015-0189). We have responded to those submitted comments as part of our final action on that SIP revision. 10 Our detailed responses can be found in the response-to-comment (RTC) documents for the Arkansas Regional Haze SO 2 and PM SIP Revision. 11 After careful consideration, we have determined that the comments received do not raise any issues specific to the progress report. We are approving the Arkansas regional haze progress report SIP submittal, as proposed.

We are approving Arkansas' regional haze progress report SIP revision (submitted on June 2, 2015) since we have found that it meets the applicable regional haze requirements set forth in 40 CFR 51.308(g) and the determination of adequacy provision under 40 CFR 51.308(h). We also find that the State of Arkansas fulfilled its requirement in 40 CFR 51.308(i) regarding state coordination with Federal Land Managers (FLMs). This action is being taken under section 110 of the Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

On June 2, 2010, the EPA Administrator signed a final rule establishing a new SO 2 primary NAAQS as a 1-hour standard of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations. See 75 FR 35520 (June 22, 2010), codified at 40 CFR 50.17. This action also provided for revocation of the existing 1971 primary annual and 24-hour standards, subject to certain conditions. 1 Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1)-(2) of the CAA. On August 5, 2013, EPA promulgated initial air quality designations for 29 areas for the 2010 SO 2 NAAQS (78 FR 47191), which became effective on October 4, 2013, based on violating air quality monitoring data for calendar years 2009-2011, where there were sufficient data to support a nonattainment designation. 2

Effective on October 4, 2013, the Beaver Area was designated as nonattainment for the 2010 SO 2 NAAQS for an area that encompasses the primary SO 2 emitting source Bruce Mansfield and the nearby SO 2 monitor (Air Quality Site ID: 42-007-0005). The final designation triggered a requirement for Pennsylvania to submit a SIP revision with an attainment plan for how the Area would attain the 2010 SO 2 NAAQS as expeditiously as practicable, but no later than October 4, 2018, in accordance with CAA section 192(a).

For a number of areas, including the Beaver Area, EPA published a document on March 18, 2016, effective April 18, 2016, that Pennsylvania and other pertinent states had failed to submit the required SO 2 attainment plan by this submittal deadline. See 81 FR 14736. This finding initiated a deadline under CAA section 179(a) for the potential imposition of new source review and highway funding sanctions. However, pursuant to Pennsylvania's submittal of September 29, 2017, and EPA's subsequent letter dated October 5, 2017 to Pennsylvania finding the submittal complete and noting the stopping of the sanctions clock, these sanctions under section 179(a) will not be imposed as a consequence of Pennsylvania's having missed the SIP submission deadline. Additionally, under CAA section 110(c), the March 18, 2016 finding triggered a requirement that EPA promulgate a Federal implementation plan (FIP) within two years of the effective date of the finding unless, by that time, the state has made the necessary complete submittal and EPA has approved the submittal as meeting applicable requirements. This FIP obligation will not apply as a result of this action to finalize this SIP approval.

Attainment plans for SO 2 must meet the applicable requirements of the CAA, and specifically, CAA sections 110, 172, 191, and 192. The required components of an attainment plan submittal are listed in section 172(c) of Title I, part D of the CAA, and in EPA's implementing regulations at 40 CFR part 51. On April 23, 2014, EPA issued guidance (hereafter 2014 SO 2 Nonattainment Guidance) recommending how state submissions could address the statutory requirements for SO 2 attainment plans. 3 In this guidance, EPA described the statutory requirements for an attainment plan, which include: An accurate base year emissions inventory, of current emissions, for all sources of SO 2 within the nonattainment area (172(c)(3)); an attainment demonstration that includes a modeling analysis showing that the enforceable emissions limitations and other control measures taken by the state will provide for expeditious attainment of the NAAQS (172(c)); demonstration of RFP (172(c)(2)); implementation of RACM, including RACT (172(c)(1)); Nonattainment NSR requirements (172(c)(5)); and adequate contingency measures for the affected area (172(c)(9)).

In accordance with section 172(c) of the CAA, the Pennsylvania attainment plan for the Beaver Area includes: (1) An emissions inventory for SO 2 for the plan's base year (2011); and (2) an attainment demonstration. The formal SIP revision was submitted by Pennsylvania on September 29, 2017. The attainment demonstration includes the following: Analyses that locate, identify, and quantify sources of emissions contributing to violations of the 2010 SO 2 NAAQS; a determination that the control strategy for the primary SO 2 source within the nonattainment area constitutes RACM/RACT; a dispersion modeling analysis of an emissions control strategy for the primary SO 2 source (Bruce Mansfield), showing attainment of the SO 2 NAAQS by the October 4, 2018 attainment date; requirements for RFP toward attaining the SO 2 NAAQS in the Area; contingency measures; the assertion that Pennsylvania's existing SIP-approved NSR program meets the applicable requirements for SO 2 ; and the request that emission limitations and compliance parameters for Bruce Mansfield be incorporated into the SIP. On October 5, 2018 (83 FR 50314), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Pennsylvania. In the NPRM, EPA proposed approval of the attainment plan for the Beaver Area for the 2010 SO 2 NAAQS. Comments on EPA's proposed rulemaking were due on or before November 5, 2018.

Other specific requirements of the Beaver Area attainment plan and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. This final action incorporates the rationale provided in the NPRM, except to the extent necessary to reflect any changes in the rationale in response to the public comments. Multiple comments on the NPRM were received from one entity. Several of the comments had various points and are addressed point by point by EPA. To review the full set of comments received, refer to the Docket for this rulemaking, as identified above. A summary of the comments received and EPA's responses are provided below.

Comment 1. The commenter asserts that considering FirstEnergy's announcement that the Bruce Mansfield Plant will retire in 2021, the proper path forward is for the Pennsylvania Department of Environmental Protection (PADEP) to incorporate that retirement into the SIP and set emission limits for the plant of zero.

Response 1. EPA disagrees with the commenter that PADEP needs to revise their SIP submission to incorporate the retirement of Bruce Mansfield. The Commonwealth of Pennsylvania correctly submitted a complete attainment plan SIP on September 29, 2017, and EPA is finalizing approval of that submittal with this action. The Beaver Area Attainment Plan includes modeling using the Bruce Mansfield critical emissions values (CEVs) and operational restrictions for other SO 2 sources in the area that demonstrates attainment of the 1-hour SO 2 NAAQS. PADEP developed comparably stringent 30-day emissions limits for Bruce Mansfield based on the modeled CEVs. The attainment plan meets the requirements of CAA Section 172(c) as submitted, and there is no need to amend the plan to incorporate the planned shutdown of Bruce Mansfield. In addition to the planned shutdown which the commenter mentioned, EPA is aware that Units 1 and 2 of the Bruce Mansfield Plant have been listed on PJM's (Pennsylvania New Jersey Maryland Interconnection LLC) deactivation list as of February 5, 2019 (which was after the public comment period for this action); nevertheless, EPA continues to assert that even though Bruce Mansfield Units 1 and 2 are already deactivated, the SIP does not need to be amended. The permits for these units have not been retired, and, thus, the units are still permitted to emit SO 2 to the allowable emission limit. The emission limits and operational restrictions being incorporated into the SIP in this action are still in effect, and still provide for attainment of the 1-hour SO 2 NAAQS, as the attainment modeling demonstrated.

Comment 2. The commenter claims that EPA has failed to issue a FIP or impose sanctions against the state for not having a Federally enforceable SIP that demonstrates how the Beaver Area will reach attainment by the statutorily required compliance deadline of October 4, 2018. The commenter asserts that it is unclear how the SIP can meet this now passed compliance deadline when the limits proposed in the Pennsylvania submission are not presently Federally enforceable.

Response 2. EPA disagrees with the commenter that sanctions should have been applied in this case because, as discussed in the NPRM, the sanctions clock was turned off when EPA determined a complete SIP was submitted as stipulated in CAA 179(a). See also 40 CFR 52.31(d)(5), which provides that a sanctions clock started by a finding of failure to submit a required SIP will be permanently stopped upon a final finding that the deficiency forming the basis of the finding of failure to submit has been corrected, and that in such a case a letter from EPA to the State would be how EPA issues a finding that the deficiency has been corrected.

EPA agrees with the commenter that the approval of this SIP did not occur before the October 4, 2018 deadline for NAAQS attainment. However, EPA disagrees that the proposed emission limits at Bruce Mansfield and operational restrictions at the Jewel Facility in the SIP, which have been in effect and enforceable at the state level since October 1, 2018, and September 21, 2017, respectively, have not brought the SO 2 concentrations in the area under the 75-ppb standard by the applicable deadline. Supporting evidence of timely attainment is available from the most recent SO 2 concentrations at the Brighton Township monitor (AQS 42-007-0005) in the nonattainment area being well below the 75-ppb standard. Specifically, the 99th percentile of the 1-hour maximum SO 2 concentrations at the (previously violating) Brighton Township monitor was 18 ppb in 2018, and the most recent design value (3-year average of the annual 99th percentile of 1-hour daily maximum concentrations using 2016-2018 data) was 22 ppb. 4

EPA also disagrees with the apparent view of the commenter that because EPA did not approve, and thereby make Federally enforceable, the Commonwealth's emission limits before the October 4, 2018 attainment deadline, Pennsylvania's plan itself is somehow no longer approvable and EPA cannot thereafter approve the emissions limits and make them Federally enforceable. Such a view cannot be correct, as adopting it would preclude EPA from ever being able to approve a SIP that has fully adequate emissions limits that reduce emissions concentrations to attaining levels merely due to EPA's timing of action, rather than based on the technical merits of the SIP, and force EPA to possibly adopt in a FIP the exact same emissions limits but on an even more belated schedule. Such a result is not compelled by the CAA, and would offend the value of cooperative federalism reflected in the Act. In addition, EPA believes its obligation is to evaluate the state's plan, and to evaluate whether the state has established timely obligations for pertinent sources, without regard to the timing by which the state enforceable obligations become Federally enforceable.

In any case, EPA has proposed approval, and with this action, finalizes approval of the Beaver, PA attainment plan, which makes Federally enforceable the 30-day average SO 2 limits at Bruce Mansfield and operational restrictions at the Jewel Facility. The 30-day average SO 2 limits for Bruce Mansfield were developed using procedures recommended in EPA's 2014 SO 2 Nonattainment Area Guidance and are a comparably stringent substitute for a 1-hour limit at the modeled CEV. The CEV for Bruce Mansfield and the operational restrictions for the Jewel Facility were modeled as resulting in attainment of the NAAQS, Bruce Mansfield is complying with the comparably stringent 30-day limits, Jewel is complying with the operational restrictions, and the limits have been enforceable Pennsylvania since October 1, 2018 for Bruce Mansfield, and since September 21, 2017 for the Jewel Facility.

In regard to EPA's failure to issue a FIP, EPA believes that the most expeditious way to bring this area into attainment and maintain attainment is to approve the submitted SIP with the limits and restrictions adopted by the Commonwealth, making those limits and restrictions Federally enforceable. Also, any FIP for this area would likely mirror what Pennsylvania has proposed in the SIP, so approval of the SIP is likely just as effective and a more efficient way to ensure that the limits and other elements of the SIP become Federally enforceable. Thus, it is reasonable to conclude that the most expeditious approach to having a Federally enforceable plan to bring the area into attainment and keep it in attainment is to approve this SIP, and not issue a FIP.

Comment 3. The commenter asserts that the 30-day average emission limits in the Proposal for Bruce Mansfield are fundamentally incapable of protecting a 1-hour standard. The commenter provided two references to EPA documents where EPA states that averaging periods for emissions limits should be consistent with the NAAQS averaging time periods. 5

Response 3. EPA disagrees with the commenter's statement that the proposed 30-day limit is fundamentally incapable of protecting the 1-hour NAAQS. EPA believes as a general matter that properly set, longer term average limits are comparably effective in providing for attainment of the 1-hour SO 2 standard as 1-hour limits. EPA's 2014 SO 2 Nonattainment Area Guidance sets forth in detail the reasoning supporting its view that the distribution of emissions that can be expected in compliance with a properly set longer term average limit is likely to yield comparable overall air quality than constant hourly emissions set at a level that provides for attainment. See 2014 SO 2 Nonattainment Guidance, including Appendix B. This reasoning is also expressed in detail in the NPRM for this action.

At the outset, EPA notes that the specific examples of earlier EPA statements cited by the commenter ( i.e., those contained in Exhibits 1 and 2 to Appendix A of the comment submission) pre-date the release of EPA's 2014 SO 2 Nonattainment Area Guidance. As such, these examples only reflect the Agency's development of its policy for implementing the 2010 SO 2 NAAQS as of the dates of the issuance of the statements. At the time these statements were issued, EPA had not yet addressed the specific question of whether it might be possible to devise an emission limit with an averaging period longer than 1-hour, with appropriate adjustments that would make it comparably stringent to an emission limit shown to attain 1-hour emission levels, that could adequately ensure attainment of the SO 2 NAAQS. None of the pre-2014 EPA documents cited by the commenter address this question; consequently, it is not reasonable to read any of them as rejecting that possibility.

In contrast, EPA's 2014 SO 2 Nonattainment Area Guidance specifically addressed this issue as it pertains to requirements for SIPs for SO 2 nonattainment areas under the 2010 NAAQS, especially with regard to the use of appropriately set comparably stringent limitations based on averaging times as long as 30 days. EPA found that a longer term average limit which is comparably stringent to a short-term average limit is likely to yield comparable air quality; and that the net effect of allowing emissions variability over time but requiring a lower average emission level is that the resulting worst-case air quality is likely to be comparable to the worst-case air quality resulting from the corresponding higher constant short-term average emission limit. See 2014 SO 2 Nonattainment Guidance.

Any accounting of whether a 30-day average limit provides for attainment must consider factors reducing the likelihood of 1-hour average concentrations that exceed the NAAQS level as well as factors creating a risk of additional concentrations that exceed the NAAQS level. To facilitate this analysis, EPA used the concept of a CEV for the SO 2 -emitting facilities which are being addressed in a nonattainment SIP. The CEV is the continuous 1-hour emission rate which is expected to result in the 3-year average of annual 99th percentile daily maximum 1-hour average concentrations being at or below 75 ppb, which in a typical year means that fewer than four days have maximum hourly ambient SO 2 concentrations exceeding 75 ppb. See 2014 SO 2 Nonattainment Guidance, Appendix B.

EPA recognizes that a 30-day limit can allow occasions in which emissions exceed the CEV, and such occasions yield the possibility of concentrations exceeding the NAAQS level that would not be expected if emissions were always at the CEV. At the same time, the establishment of the 30-day average limit at a level below the CEV means that emissions must routinely be lower than they would be required to be with a 1-hour emission limit set at the CEV. On those critical modeled days in which emissions at the CEV are expected to result in concentrations exceeding 75 ppb, emissions set to comply with a 30-day average level which is below the CEV may well result in concentrations below 75 ppb. Requiring emissions on average to be below the CEV introduces significant chances that emissions will be below the CEV on critical days, so that such a requirement creates significant chances that air quality would be better than 75 ppb on days that, with emissions at the CEV, concentrations would have exceeded 75 ppb.

The NPRM for this area provides an illustrative example of the effect that application of a limit with an averaging time longer than 1 hour can have on air quality. This example illustrates both (1) the possibility of elevated emissions (emissions above the CEV) causing concentrations exceeding the NAAQS level not expected with emissions at or below the CEV and (2) the possibility that the requirement for routinely lower emissions would result in avoiding concentrations exceeding 75 ppb that would be expected with emissions at the CEV. In this example, moving from a 1-hour limit to a 30-day average limit results in one day that exceeds 75 ppb that would otherwise be below 75 ppb, one day that is below 75 ppb that would otherwise be above 75 ppb, and one day that is below 75 ppb that would otherwise be at 75 ppb. In net, the 99th percentile of the 30-day average limit scenario is lower than that of the 1-hour limit scenario, with a design value of 67.5 ppb rather than 75 ppb. Stated more generally, this example illustrates several points: (1) The variations in emissions that are accounted for with a longer term average limit can yield higher concentrations on some days and lower concentrations on other days, as determined by the factors influencing dispersion on each day, (2) one must account for both possibilities, and (3) accounting for both effects can yield the conclusion that a properly set longer term average limit can provide as good or better air quality than allowing constant emissions at a higher level. The commenter has not disputed this rationale that longer term limits can suitably provide for attainment, and thus EPA continues to assert that appropriately set 30-day emission limits can be protective of the 1-hour SO 2 standard.

Comment 3a. The commenter states that the Bruce Mansfield 30-day average emission limits are 720 times the standard, and they would do nothing to change Bruce Mansfield's current behavior. The commenter provided data from the last four years of publicly available emissions data for the facility and notes that the proposed 30-day average emission limits for Units 1 and 2 combined, and for Unit 3, respectively, are far higher than actual historical emissions. The commenter also provided hourly emissions data from Bruce Mansfield Units 1 and 2 combined from June 1, 2013 to May 30, 2017  6 and states that during this time period, there are 101 hours in which emissions from Units 1 and 2 exceed the hourly limit. The commenter further asserts that using their 30-day average analysis, Bruce Mansfield would have been in “compliance” with the proposed 30-day emission limits during this time period. In the commenter's view, given that exceedances of the NAAQS can occur if as few as four hours over the course of a year are above the 75-ppb threshold, the commenter states that it is impossible that the proposed 30-day limit will protect the standard.

Response 3a. EPA disagrees with the commenter that the 30-day average emission limits are 720 times the standard. The averaging period for the emissions limit is 30 days, or 720 hours, which is 720 times the length of the averaging time of the standard. The 30-day emission limits are not 720 times the 1-hour CEV, and the resulting concentrations are not 720 times the NAAQS (75 ppb). More importantly, this comment does not include a rationale that a limit with this averaging time necessarily fails to assure attainment.

The SO 2 emissions and SO 2 concentrations have significantly declined in the Beaver Area. As described in the NPRM for this action, two facilities within the nonattainment area have permanently shut down—AES Beaver, a coal fired power plant, shut down in 2015, and Horsehead Monaca, a zinc smelter, shut down in 2014. In addition, the Jewel Facility, a steel mill, has entered into a Consent Order and Agreement (COA) with PADEP to prohibit operation of the Meltshop (the primary source of sulfur dioxide). The closure of two facilities and the operational restrictions on a third facility have provided SO 2 emission reductions, and a significant portion of these reductions are enforceable pursuant to Pennsylvania's plan. These reduced allowable emissions, along with the allowable emissions at Bruce Mansfield, have been modeled in accordance with Appendix W to 40 CFR part 51 and the EPA's 2014 SO 2 Nonattainment Area Guidance and demonstrate that the area will attain the standard by its attainment date. PADEP developed a comparably stringent 30-day average emission limit for Bruce Mansfield using the modeled emission levels as a starting point and adjusted downward, in accordance with procedures recommended in EPA's SO 2 Nonattainment Area Guidance. In response 3 above and in EPA's 2014 SO 2 Nonattainment Area Guidance, EPA has explained at length its reasoning that a comparably stringent 30-day average limit is a suitable substitute for a 1-hour limit at the CEV in providing for attainment.

Furthermore, although the focus of this rulemaking is on whether the plan has limits that assure attainment, it is worth noting that significant emission reductions have also occurred and will occur in the future at Bruce Mansfield. Compared to emissions for 2010 to 2012 (the period of the air quality data that resulted in this area being designated nonattainment), when emissions from Bruce Mansfield averaged 20,700 tons per year, emissions for 2017 to 2018 averaged 7,000 tons per year. As stated in the attainment plan, in order to comply with the new limit, Bruce Mansfield planned to make operational and physical changes prior to October 2018 to ensure compliance with the new limits (Appendix E-1, p. 7). Also, although shutdowns at Bruce Mansfield are beyond the planning horizon of the SIP and are not part of the SIP, the shutdown of this full facility that is slated for 2021 provides further confidence that the area will continue to attain the standard.

Therefore, EPA continues to believe that the emission limits at Bruce Mansfield, in concert with the shutdown of AES Beaver and Horsehead Monaca, and operating restrictions on the Jewel plant, provide the SO 2 emission reductions required to demonstrate attainment. EPA notes that attainment is not solely dependent on reducing emissions or changing the operations at Bruce Mansfield, but on all the SO 2 emission reductions that have occurred and were modeled in the nonattainment area.

Furthermore, EPA disagrees with the commenter's premise that the existence of hours with emissions exceeding modeled attainment levels despite compliance with the 30-day average limit necessarily means that the 30-day limit is not protective of the NAAQS. (The commenter claims the existence of 101 hours from mid-2013 to mid-2017 when the emissions from Units 1 and 2 exceeded the “hourly limit” despite being in compliance with the 30-day limit. In fact, there is no hourly limit; as discussed further below, the commenter identified an equation, based on Pennsylvania's simulations of attainment level emissions, for characterizing the range of combinations of hourly Unit 1, Unit 2, and Unit 3 emissions that would model attainment, and found that 101 hours had emissions exceeding those levels.) Indeed, the NPRM provides an extensive discussion of EPA's rationale for believing that a 30-day average limit, which creates risk of occasions of emissions exceeding the CEV but also creates a compensating likelihood that the mandate for lower average emissions will avert some of the exceedances that would be allowed with a higher 1-hour average limit, will have the net effect of assuring attainment.

However, the commenter does not address EPA's full rationale for concluding that properly set 30-day average limits are a suitable basis for providing for attainment of the 1-hour SO 2 standard. Instead, the commenter merely notes that there were 101 hours when the emissions from Unit 1 and 2 exceeded attainment levels (which is 0.36 percent of the operating hours that the commenter examined) but fails to address the effect of the adjusted 30-day average limit requiring emissions to be well below critical emission levels, namely avoiding some exceedances that would be expected to occur with emissions allowed always to be at the CEV. Consequently, the commenter does not acknowledge or address the occasions in which the longer term limit provides better air quality, which is a key element of EPA's rationale for concluding that the net effect of limiting longer term average emissions to a downward adjusted level can be comparably effective in providing for attainment as limiting 1-hour emissions to the level of the CEV. Because the pertinent question is whether Pennsylvania's plan provides for attainment, EPA must address the net effect of applying a long-term average, not just considering those factors that increase the likelihood of exceedances or just considering those factors that reduce the likelihood of exceedances.

At issue here is how often emissions from Bruce Mansfield, upon compliance with Pennsylvania's 30-day average limits, might be expected to have hourly emission rates above the level modeled to result in attainment. Ordinarily, a single model run establishes upper bound hourly emission rates at which the area attains the standard; EPA calls these hourly emission rates CEVs. However, in this case, Pennsylvania conducted numerous runs reflecting the combined effect of emissions from the three units (two stacks) at Bruce Mansfield. These model runs were used to determine the relationship between emissions from Stacks 1 and 2 which would result in attainment.

Therefore, to determine the historic frequency of excess emission events, a more complicated analysis is warranted. Part of such analysis should be to establish criteria for defining excess emission events, i.e., hours when emissions exceed the level demonstrated in the state's plan to provide for attainment. Ordinarily, excess emission events may be defined simply as hours when emissions exceed the CEV. However, in this case, Pennsylvania has defined attainment level emissions in significant part as an interactive function of the emissions of both stacks at Bruce Mansfield. In particular, using the results of 17 modeling runs reflecting a range of combinations of emissions from Bruce Mansfield Stack 1 and Stack 2, the Commonwealth determined an equation defining the range of combinations of 1-hour emissions that provide for attainment, as indicated in their correction email dated 6/11/18 which was included in the docket for this action, and discussed in the NPRM. The equation contains a critical value, which is the equation result (applying the equation to Stack 1 and Stack 2 emissions) that is considered to correspond to the sets of 1-hour emission rates that Pennsylvania modeled as providing attainment. EPA will call this critical value the critical formula value (CFV), and will call the analysis to determine how many exceedance events over the CFV occurred, the CFV exceedance analysis.

The commenter developed a different CFV, based on a different equation (again based on the modeled combinations of Stack 1 and Stack 2 emissions) to define the combinations of 1-hour emissions from these stacks that could be considered to yield attainment.

Finally, EPA developed a third equation (with a third CFV), again designed around a graph of the emission values that modeled attainment from Stack 1 and Stack 2.

These three equations (reflecting different order polynomials and having different CFVs) provide three different expressions of the maximum combinations of Stack 1 and Stack 2 emissions that may be considered to yield attainment, and thus provide three different means of assessing whether a particular historic combination of Stack 1 and Stack 2 emissions should be considered to be an excess emission event. These equations are presented in Pennsylvania's correction email, in the commenter's comment letter, and in EPA's technical support document (TSD) for this rulemaking, respectively.

These three approaches all yielded similar results. Pennsylvania, examining data for 2012 to 2016, found that 219 hours out of 43,848 hours, or 0.50 percent of hours, exceed Pennsylvania's CFV. (Dividing this 219 hours over the number of hours in which at least one unit is operating, 43,030 hours, suggests 0.51 percent of operating hours exceeded the CFV.) The commenter, examining data for mid-2013 to mid-2017, found that 101 hours (which, out of 28,074 operating hours, is 0.36 percent) exceeded the CFV. EPA, examining data for 2011 to 2017, found that 226 hours out of 56,503 operating hours, or 0.40 percent, constituted excess emission events, including 221 hours that exceeded the CFV and 5 hours in which Unit 3, operating alone, exceeded its CEV. Additional information regarding these three analyses are provided respectively in the submittal, the comment letter, and the TSD noted above.

These results should be put in the context of whether the baseline periods for these analyses reflected compliance with Pennsylvania's emission limits and, if not, the frequency with which the facility exceeded these limits. Pennsylvania did not assess whether Bruce Mansfield met its adopted limits. The commenter did conduct this assessment and concluded that the facility met all three limits for all 30-day average periods. However, EPA believes that the commenter analyzed these data incorrectly, using averaging procedures different from the procedures that Pennsylvania would use in assessing compliance.

The COA that Pennsylvania adopted and submitted to govern emissions from Bruce Mansfield does not precisely define the data handling procedures that it would use in assessing compliance with the pertinent limits. However, Pennsylvania states, “The 30-operating day rolling average SO 2 emissions rate shall be calculated using the procedures outlined in the Mercury and Air Toxics Standards (MATS) regulations in 40 CFR parts 60 and 63.” EPA interprets this statement to mean that compliance shall be assessed by calculating an average of the hourly emission rates applicable while the facility is operating. While the SO 2 limit in MATS, which regulates mass of emissions per unit heat input, has a different form from Pennsylvania's limit, which regulates mass per hour, EPA interprets Pennsylvania to intend the same feature of conducting its compliance calculations in a manner that gives no weight to periods in which the unit(s) is not operating. (While these procedures may be a moot point if Bruce Mansfield does not resume operation, EPA's evaluation of the approvability of Pennsylvania's SIP necessitates review of whether the applicable limits provide for attainment should the facility restart.)

The commenter computed 30-day averages by computing daily average emission rates (including only operating hour emission rates) and then by computing the unweighted average of these daily average values. This approach gives days with partial operation the same weight as days with 24 hours of operation, and thus overweights the hours on the partial operation days.

EPA then conducted its own evaluation of whether Bruce Mansfield was complying with the limits in Pennsylvania's SIP during the period being evaluated for excess emission events. In this evaluation, EPA examined data for 2011 to 2017. 7 During this period, EPA concluded that Bruce Mansfield was in compliance with the prospective limits for Stack 1 (Units 1 and 2) and for Stack 2 (Unit 3) at all times but exceeded the formula limit for 16 out of 2116 averaging periods, or 0.76 percent. Therefore, EPA believes that compliance with the limits in Pennsylvania's SIP will require Bruce Mansfield to have a slightly smaller fraction of hours exceeding the CFV than occurred in the historical record. EPA, Pennsylvania, and the commenter nevertheless agree that the frequency with which Bruce Mansfield could be expected to exceed the CFV (or either of the stack-specific CEVs) is less that 0.6 percent of operating hours.

However, EPA disagrees with the commenter on the air quality consequences of these occasions of elevated emissions. EPA believes that a full analysis of the air quality impact of Pennsylvania's limits must consider these hours of elevated emissions in conjunction with the far greater number of hours when emissions are required to be well below the level (on average, on the order of 20 to 30 percent below the level) that would model violations. For reasons described in more detail in EPA's guidance and in the NPRM for this action, EPA believes that the net effect of these compensating factors is that Pennsylvania's limits provide adequate assurance that the area will attain the SO 2 standard. EPA notes that the data used for these analyses were from time periods prior to the adoption of 30-day emission limits, prior to the requirement of 95% scrubber control efficiency, and prior to the operational and physical changes that were made to meet the new lower emission limits. Through the adoption of these new requirements, Bruce Mansfield will restrict the variability in emissions and will need to comply with new emission limits.

After reviewing Pennsylvania's submittal, EPA finds that the limits established for Bruce Mansfield provide a suitable alternative to establishing 1-hour average emission limits for this source. Consistent with EPA guidance, EPA anticipates that, if Bruce Mansfield resumes operation and complies with Pennsylvania's limits, excess emission events will be sufficiently infrequent that compliance with the 30-day average limits will provide for attainment.

Comment 3b. The commenter states that EPA suggests that because Bruce Mansfield has exceeded the polynomial-based emission limits on an hourly basis only “0.50%” of the time during 2012-2016, that the 30-day limits are therefore adequately protective. 8 However, the commenter asserts that EPA's reliance on FirstEnergy's math is misplaced and its reasoning is incorrect. First, FirstEnergy and EPA improperly compare the exceedances not to plant operating hours, but to the number of hours in the calendar. The commenter states that FirstEnergy and EPA significantly understate the significance of those nonoperating hours because there are thousands of hours in which one or another boiler at Bruce Mansfield was not operating, and nearly a thousand hours during the examined time period in which no boiler was operating. The commenter asserts that the 219 hours that FirstEnergy concedes Bruce Mansfield exceeded the polynomial hourly attainment level emissions is significant, given the commenter's view that the NAAQS can be violated with heightened emissions in as few as four hours a year over three years. Second, FirstEnergy's analysis only looks at times in which the emissions from Units 1 and 2 together exceed the polynomial function, and not at those times when emissions from Unit 3 exceed the polynomial function. As such, the commenter states that the analysis only looks at a part of the story—there are numerous hours where emissions from Unit 3 all by itself are enough to mean that, even with their emission limits governed by the polynomial function, Units 1 and 2 would need to emit negatively. As such, the commenter asserts that FirstEnergy and EPA are arbitrarily ignoring a significant aspect of the problem.

Response 3b. EPA agrees with the commenter regarding mistakes in FirstEnergy's math, but disagrees with the commenter regarding its claims that a 30-day limit cannot be protective of a 1-hour standard. EPA has addressed the latter issue above in Response 3a.

Pennsylvania/FirstEnergy's CFV analysis contained two mistakes. FirstEnergy failed to only use plant operating hours in their CFV analysis. They also failed to count hours as exceeding the attainment emission level when the emissions from Unit 3 would have exceeded the limits on its own, thereby understating the number of hours in which that, if modeled as occurring constantly for every hour of the year, would be expected to estimate a violation. (The commenter describes hours with excessive emissions from Unit 3 as hours in which “Units 1 and 2 would need to emit negatively.” EPA agrees that these hours when Unit 3 emits above its own CEV need to be counted as excess emissions hours for purposes of this analysis, but EPA believes that the pertinent issue is whether the plant emitted excessively, not whether the limits require impossible emission levels.) EPA addressed these mistakes in its analysis. In order to determine exceedance events in respect to the CFV, EPA kept all hours where Stack 1 (unit 1 and 2) and Stack 2 had emission values. EPA included these occurrences in the analysis because the formula applies when Stack 1 and Stack 2 are in service, and therefore, the analysis to determine how many times the formula was exceeded should include any hours when emissions were coming out of both stacks. As described above, EPA's CFV exceedance analysis shows that 0.4% of operating hours during 2011 through 2017 constituted an excess emissions event.

Consequently, EPA continues to have reasonable confidence that occasions with emissions above the CFV will be infrequent and limited in magnitude. EPA's revised CFV analysis is available in the docket for this action and is described in more detail in the TSD for this action. EPA provided a full rationale for comparably stringent longer term averages in Responses 3 and 3a above, concluding that the net effect of limiting longer term average emissions to a downward adjusted level can be comparably effective in providing for attainment as limiting 1-hour emissions to the level of the CEV.

Comment 3c. The commenter asserts that Pennsylvania's contingency measures are limited and do not support Pennsylvania's claims that the measures will minimize further the chance of an exceedance. The commenter asserts that the contingency measures will require Bruce Mansfield to (1) audit their systems if the emissions become close to the emission limits and (2) require Bruce Mansfield to monitor their systems to ensure the facility does not cause a violation at the monitor. The commenter claims that number 1 above is what Bruce Mansfield ought to be doing anyway to ensure that they are in compliance with their permit limits, and number 2 incorrectly relies on one monitor when attainment should be reached throughout the nonattainment area.

Response 3c. EPA disagrees with the commenter that the contingency measures are too limited and do not support Pennsylvania's claims that the measures will minimize further the chance of an exceedance. The CAA requires a Nonattainment SIP to model attainment throughout the nonattainment area. Section 172(c)(9) of the CAA defines contingency measures as such measures in a SIP that are to be implemented in the event that an area fails to make RFP, or fails to attain the NAAQS by the applicable attainment date. Contingency measures are to become effective without further action by the state or EPA, where the area has failed to (1) achieve RFP or, (2) attain the NAAQS by the statutory attainment date for the affected area. These control measures are to consist of other available control measures that are not included in the control strategy for the attainment plan SIP for the affected area. However, EPA has also explained that SO 2 presents special considerations. 9 First, for some of the other criteria pollutants, the analytical tools for quantifying the relationship between reductions in precursor emissions and resulting air quality improvements remains subject to significant uncertainties, in contrast with procedures for directly-emitted pollutants such as SO 2. Second, emission estimates and attainment analyses for other criteria pollutants can be strongly influenced by overly optimistic assumptions about control efficiency and rates of compliance for many small sources. This is not the case for SO 2 .

In contrast, the control efficiencies for SO 2 control measures are well understood and are far less prone to uncertainty. Because SO 2 control measures are based on what is directly and quantifiably necessary to attain the SO 2 NAAQS, it would be unlikely for an area to implement the necessary emission controls yet fail to attain the NAAQS. See 2014 SO 2 Nonattainment Area Guidance, page 41. Therefore, for SO 2 programs, EPA has explained that contingency measures can mean that the air agency has a comprehensive program to identify sources of violations of the SO 2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement, including expedited procedures for establishing enforceable consent agreements pending the adoption of the revised SIP. EPA believes that this approach continues to be valid for the implementation of contingency measures to address the 2010 SO 2 NAAQS, and consequently concludes that Pennsylvania's comprehensive enforcement program, as discussed below, satisfies the contingency measure requirement.

This approach to contingency measures for SO 2 does not preclude an air agency from requiring additional measures that are enforceable and appropriate for a particular source category if the state determines such supplementary measures are appropriate. As EPA has stated in our 2014 SO 2 Nonattainment Area Guidance, in order for EPA to rely on these measures to approve the SIP, the supplementary contingency measures would need to be fully adopted provisions in the SIP that become effective where the area has failed to meet RFP or fails to attain the standard by the statutory attainment date. See 2014 SO 2 Nonattainment Guidance, page 42.

As noted in EPA's NPRM, EPA's 2014 SO 2 Nonattainment Area Guidance describes special features of SO 2 planning that influence the suitability of alternative means of addressing the requirement in section 172(c)(9) for contingency measures. One effective alternative means identified by the Guidance is a comprehensive enforcement program for sources emitting SO 2 . Pennsylvania has a comprehensive enforcement program as specified in Section 4(27) of the Pennsylvania Air Pollution Control Act (APCA), 35 P.S. § 4004(27). Under this program, PADEP is authorized to take any action it deems necessary or proper for the effective enforcement of the Act and the rules and regulations promulgated under the Act. Such actions include the issuance of orders (for example, enforcement orders and orders to take corrective action to address air pollution or the danger of air pollution from a source) and the assessment of civil penalties. Sections 9.1 and 10.1 of the APCA, 35 P.S. §§ 4009.1 and 4010.1, also expressly authorize PADEP to issue orders to aid in the enforcement of the APCA and to assess civil penalties.

Any person in violation of the APCA, the rules and regulations, any order of PADEP, or a plan approval or operating permit conditions could also be subject to criminal fines upon conviction under Section 9, 35 P.S. § 4009. Section 7.1 of the APCA, 35 P.S. § 4007.1, prohibits PADEP from issuing plan approvals and operating permits for any applicant, permittee, or a general partner, parent or subsidiary corporation of the applicant or the permittee that is placed on PADEP's Compliance Docket until the violations are corrected to the satisfaction of PADEP.

In addition to having a fully approved enforcement program, Pennsylvania has included contingency measures that are triggered when a source's emissions reach a certain percentage of the allowable emissions and based on any monitor in the nonattainment area registering a 1-hour daily maximum concentration exceeding 75 ppb. These measures are in line with the supplemental contingency measure guidance EPA mentions above and are included in the FirstEnergy COA and the Jewel COA and thus will be fully approved provisions within the SIP.

In regard to the monitoring contingency measure, the commenter erroneously confuses the requirement for Pennsylvania to plan for attainment in the entire Nonattainment area with the ability of the Commonwealth to use monitoring data from a single location as a trigger for a contingency measure. Pennsylvania has demonstrated attainment throughout the entire Beaver Nonattainment area through their modeling demonstration discussed previously. Using monitoring data to trigger supplemental contingency measures is a defensible approach for helping achieve attainment throughout the area in cases where the plan has unexpectedly not achieved attainment.

EPA concludes that Pennsylvania's enforcement program by itself suffices to satisfy the contingency measure requirements. The magnitude of prospective benefit from Pennsylvania's supplemental contingency measures is unclear, but it is clear that these measures can only improve and will not worsen air quality. Therefore, notwithstanding the commenter's concerns about the specificity and triggering of the supplementary measures identified in the Pennsylvania SIP and the FirstEnergy and Jewel COAs, EPA believes that Pennsylvania's enforcement program, which is enhanced by the supplementary provisions in the COAs, suffice to meet Section 172(c)(9) requirements as interpreted in the 1992 General Preamble and the 2014 SO 2 Nonattainment Guidance.

Comment 4. The commenter states that the conversion factors used to determine the comparably stringent longer term limit for Bruce Mansfield are arbitrary and insufficiently protective. The commenter asserts that the conversion factors are highly dependent on the time period selected. The commenter provided a table of varying time periods, and corresponding adjustment factors. The commenter notes that depending on the time period selected the adjustment factors can range from 0.558 to 0.673.

Response 4. EPA disagrees with the commenter's assertion that Bruce Mansfield's SO 2 limits are arbitrary and insufficiently protective. As stated in EPA's 2014 SO 2 Nonattainment Area Guidance, EPA expects that establishing an appropriate longer-term average limit will involve assessing a downward adjustment in the level of the limit that would provide for comparable stringency. This assessment should generally be conducted using data obtained by a Continuous Emissions Monitoring System (CEMS), in order to have sufficient data to obtain a robust and reliable assessment of the anticipated relationship between longer-term average emissions and 1-hour emission values. This is necessary to suitably assess the warranted degree of adjustment of the longer-term average limit in order to provide comparable stringency to the 1-hour emission rate that is determined to provide for attainment.

EPA generally expects that datasets reflecting hourly data for at least three to five years of stable operation ( i.e., without changes that significantly alter emissions variability) would be needed to conduct a suitably reliable analysis. PADEP's use of 2012-2016 CEM data represents five years of historic data of stable operation for the Bruce Mansfield facility, and provides the robustness recommended in EPA's guidance.

In contrast, the commenter's adjustment factors were based on time intervals that varied from six months to three and a half years, which are all less than the time interval used by Pennsylvania. The commenter's adjustment factors resulting from using shorter time periods illustrate a point that EPA considered in formulating its guidance, which is that using an insufficient amount of data is prone to yield results that vary unduly by data period and may not be a sufficiently robust basis for determining a reliable adjustment factor. The variability in adjustment factors using time intervals from six months to three and a half years provided by the commenter demonstrates the insufficiency of these shorter time periods for use in development of such an adjustment factor, but does not demonstrate the insufficiency of the overall method in EPA's 2014 SO 2 Nonattainment Area Guidance had it been appropriately applied, nor does it demonstrate that Pennsylvania's adjustment factor is inappropriate.

EPA's guidance recommends calculating adjustment factors using statistics calculated according to the data handling procedures by which compliance is determined. The COA between Pennsylvania and FirstEnergy indicates that “the 30-operating day rolling average SO 2 emissions rate shall be calculated using the procedures outlined in the MATS regulations in 40 CFR parts 60 and 63.” Pennsylvania and EPA calculated adjustment factors accordingly.

Pennsylvania imposed three separate limits, and EPA considered the adjustment inherent in each limit. For the limit on Unit 3 emissions, Pennsylvania appropriately compared the 99th percentile of 30-day averages of Unit 3 emissions against the 99th percentile of 1-hour values of Unit 3 emissions, computing an adjustment factor of 0.794. The commenter does not contest this adjustment factor. EPA computed similar statistics for seven years of emissions (2011 to 2017) and computed a similar emission factor, 0.786.

For the limit on the sum of Unit 1 and Unit 2 emissions, Pennsylvania conducted separate calculations for Unit 1 and for Unit 2, computing adjustment factors of 0.59 and 0.717, respectively. The commenter objects to the use of the Unit 2 adjustment factor for both units, thereby disregarding the variability of Unit 1. EPA agrees that the variability of Unit 1 may not be disregarded, and that the variability of Unit 2 should not be used as a surrogate for the variability of both units.

However, since the limit governs the sum of emissions from both units, the more pertinent question is how much variability exists in the sum of emissions from the two units. That is, the appropriate method for computing an adjustment factor for this limit is to use statistics for the sum of emissions from the two units, comparing the 99th percentile of the 30-day average sum of emissions against the 99th percentile of the 1-hour sum of emissions. As discussed in the TSD, EPA computed an adjustment factor in this manner using 2011 to 2017 data for these units, computing a value of 0.72. This indicates that proper calculation of an adjustment factor for this limit yields a result that is very similar to the adjustment that Pennsylvania applied, resulting in a limit that may be considered comparably stringent to the 1-hour limit that Pennsylvania would otherwise have imposed.

The third limit governs the combination of emissions from all three units, in particular mandating that the value of an equation adding the sum of 30-day average emissions from Units 1 and 2 plus two terms (respectively first order and second order) based on emissions from Unit 3 shall not exceed 7,100. 10 Consequently, the most pertinent approach for assessing the effect of using 30-day emission averages in determining compliance with this limit is to apply EPA's recommended procedure to statistics calculated using the equation of Pennsylvania's limit. That is, EPA believes that the best assessment of the appropriate adjustment to the level to be mandated with this equation is to compare the 99th percentile of the values computed with this equation (as would be calculated to determine compliance with the limit) against the 99th percentile of the 1-hour values computed with this equation. Using Pennsylvania's 2012 to 2016 data, EPA in this manner computed an adjustment factor of 75.2 percent. Among the 14 model runs in which Unit 3 emissions comply with the Unit 3 emissions limit, the lowest formula result ( i.e., the level of the 1-hour formula limit that would yield attainment in all scenarios) is 9,821. This value multiplied by 75.2 percent yields a comparably stringent 30-day average-based value of 7,385. Since Pennsylvania has imposed a more stringent requirement for the results of this equation ( i.e., 7,100), EPA believes that Pennsylvania's limit is at least comparably stringent to the 1-hour-based limit that they would otherwise have imposed.

The commenter's adjustment factors are approximately 0.017 to 0.159 less than the adjustment factor calculated by PADEP, depending upon the time period selected. However, EPA's calculations, using seven years of hourly data from 2011 to 2017, and calculated in accordance with the data handling procedures that will be used in assessing compliance, provide a more robust and more pertinent assessment of the degree of adjustment needed to identify 30-day average-based limits that may be considered comparably stringent to the 1-hour limits that would otherwise have been set. This analysis resulted in an adjustment factor of 0.72 for Units 1 and 2 combined, and a formula limit value of 7,385 rather than the value of 7,100 that Pennsylvania imposed. These values are closely aligned with the adjustment factors reflected in Pennsylvania's limits, and support the limits that Pennsylvania established.

Comment 4a. The commenter notes that the years 2012-2016 used by PADEP in calculating the Bruce Mansfield adjustment factor are problematic. The commenter notes that the facility's dispatch has been steadily declining, that there is a trend of increased start ups and shut downs, and therefore, an increase in short term emission spikes. Specifically, the commenter claims the use of years 2012-2014 are not likely to be representative of future operation as in those years, Bruce Mansfield's operation and emissions were more consistent. The commenter asserts that future operation will be even more variable considering a 2018 fire at the scrubber system and the need to rebuild part of that system, noting that rebuilding will result in changes to scrubber operation.

Response 4a. EPA disagrees with the commenter that increased start-ups and shutdowns will lead to an increase in SO 2 emission spikes at Bruce Mansfield and disagrees with the commenter that PADEP's use of 2012-2016 emissions data was not representative of future operations (PADEP used 2012 through 2016 emissions, and the commenter's concern is with 2012-2014). EPA notes that the commenter did not provide any material supporting the claim that more start-ups and shutdowns increase SO 2 emissions or cause emission spikes at Bruce Mansfield. EPA analyzed hourly emissions data for Bruce Mansfield's units from 2011 through 2017. This analysis shows that there was an increasing number of start-ups and shutdowns during this time period for Units 1, 2 and 3. However, EPA's analysis also shows that SO 2 emissions at these units do not spike during start-up and shutdowns. In fact, the emissions are generally lower than 100 pounds per hour (lbs/hr) during these time periods for these units. Absent any specific evidence from the commenter supporting their claim that increased start-ups and shutdowns at Bruce Mansfield will increase SO 2 emissions spikes, EPA does not believe that the commenter has justified its claims that Bruce Mansfield can expect to experience more emission spikes due to start-ups and shutdowns or that expected differences between operation from 2012 to 2016 and future operation warrants a lower adjustment factor.

In addition, EPA's 2014 SO 2 Nonattainment Guidance recommends using emissions data that reflect the distribution of emissions that is expected once the attainment plan is implemented. PADEP was correct to assume that the Bruce Mansfield Facility (if it resumes full operation) would continue to operate with a similar distribution of emissions as it did during 2012 through 2016, since the attainment plan was not requiring any new control technology. SO 2 emissions from each of the three boilers were already controlled by three individual Flue Gas Desulfurization (FGD) systems. Unit 1 and Unit 2 each vent through two flues within a common stack. Unit 3 vents through two flues in the other stack. Through the COA, PADEP required Bruce Mansfield FGD units to achieve at least a 95% removal efficiency. The recent fire at the scrubber system which was identified as an issue by the commenter does not remove the requirement to achieve at least a 95% removal efficiency from the FGD units, and to meet the emission limits outlined in the COA. As such, the control technology after the implementation of the attainment plan remains the same as the control technology prior to the development of the attainment plan, and therefore EPA reasonably believes that emissions variability during the historic period of 2012-2016 continues to be representative regardless of any rebuilding of the FGD system (if that does need to occur as the commenter asserts).

EPA notes that Bruce Mansfield Units 1 and 2 have been listed on the PJM deactivation list as of February 2019. Therefore, EPA anticipates not that these units will start up and shut down more often but instead that these units will not resume operation and will not start up or shut down at all. However, EPA's task here is to assess whether Pennsylvania's plan provides for attainment, including in the scenario that these units resume operation. In this scenario, EPA presumes that satisfaction of emission limits will reflect full repair of emission control systems and the resumption of normal, stable operations, which may resume the trend toward more startups and shutdowns but which can be expected to have a distribution of upper level emissions that is similar to the distribution seen in 2012 to 2016. Thus, the deactivation of these units does not impact the approval of this attainment plan. The emission limits for the three units at Bruce Mansfield are still in effect.

Comment 4b. The commenter asserts that Pennsylvania's use of Unit 2's adjustment factor (0.717) for Unit 1 was incorrect and by using this higher adjustment factor, the 30-day emission limit calculated is significantly higher than the one that would be calculated using Unit 1's adjustment factor. The commenter asserts that EPA incorrectly determined that it was appropriate to use Unit 2's adjustment factor for Unit 1, because Unit 2's hourly emissions tend to be higher more frequently than those of Unit 1. The commenter asserts that during the time period 2012-2016, Unit 2's emissions were actually lower than Unit 1's for nearly 5,000 hours. Thus, the commenter claims EPA's own logic actually supports using the 0.59 conversion factor for Unit 1, not the 0.717 ratio.

The commenter continues that neither EPA nor Pennsylvania provides any evidence or enforceable mechanism to ensure that the future operations of Bruce Mansfield will demonstrate variability representative of Unit 2 rather than Unit 1, and as such there is no demonstrable mechanism to ensure compliance with the NAAQS.

Response 4b. PADEP followed the recommendation in EPA's 2014 SO 2 Nonattainment Guidance to use an appropriate emissions data set when determining the adjustment factors. The data set used should be sufficiently robust in terms of time covered, should be representative of the type of control strategy that is expected after the attainment plan controls are in place and should reflect the emissions variability that might be expected at the source once the SIP is implemented. However, PADEP did not use the same data handling procedures for development of the adjustment factor as for the calculation of compliance with the limit, which is recommended in EPA's 2014 SO 2 Nonattainment Guidance. PADEP calculated unit specific adjustment factors even though the form of the limit was for combined units. PADEP's use of Unit 2's adjustment factor for Unit 1 did provide for a higher 30-day average limit than would have resulted from the use of separate adjustment factors for the two limits. However, if PADEP followed EPA's Guidance in calculating the adjustment factor using the same data handling proecures as the form of the limit, they would have combined Units 1 and 2, and developed one adjustment factor based on the sum of the two units' emissions. EPA did this analysis and obtained an adjustment factor of 0.72. EPA's analysis supports the adjustment factor that PADEP applied. In fact, PADEP's approach provides for a slightly lower adjustment factor than would have been calculated using EPA's recommended approach. EPA's analysis is described in the TSD for this action.

EPA reviewed the hourly emissions data from 2012 to 2016 for Units 1 and 2, and continues to assert that Unit 2's emissions tend to be higher more frequently. Based on the commenter's explanation of the analysis they conducted to claim that Unit 2's emissions were lower than Unit 1's emissions for nearly 5,000 hours, EPA believes the commenter may be comparing the hourly emission value per hour of each specific day ( i.e., Unit 1, Day 1-Hour 1 versus Unit 2, Day 1-Hour 1). However, EPA does not believe this type of comparison is relevant to the adjustment factor analysis for a limit. EPA believes that a larger data set and more robust statistical analysis over a longer period of time, such as five years (as PADEP did), and use of data calculated in the same manner in which Pennsylvania will be determining compliance, provides a better portrayal of the influence of variability on the stringency of each limit and thus the degree of adjustment each limit needs to be comparably stringent to the 1-hour limits that Pennsylvania would otherwise have imposed.

Providing further support for the use of a 0.717 adjustment factor for Unit 1 and Unit 2, the adjustment factor listed in Appendix D of EPA's SO 2 Nonattainment Guidance for Sources with Wet Scrubbers (30-day average vs. 1-hour adjustment factor) is 0.71. Therefore, EPA continues to believe that the adjustment factors used for Units 1 and 2 provide for a comparably stringent 30-day emission limit.

Regarding the commenter's concern that there is no enforceable mechanism provided to ensure that future emissions variability of Bruce Mansfield will reflect the emissions variability representative of Unit 2 rather than Unit 1, EPA has provided options to states in the 2014 SO 2 Nonattainment Guidance to reduce the likelihood of increased emissions varaiability in the future. PADEP followed EPA's Guidance of adopting a direct work practice requirement for control equipment which could set a minimum level of control efficiency. The Bruce Mansfield plant is required to use this work practice in order to ensure that the NAAQS is not exceeded. To this end, the Bruce Mansfield plant FGDs must achieve at least a 95% design removal efficiency on Units 1, 2, and 3 during normal operating conditions following the general requirements of 25 Pa. Code Chapter 139.11 and the testing frequency contained in the COA. This additional work practice requirement provides greater assurance that there will be less variability in emissions when complying with the 30-day limits, as well as minimizing the likely frequency and magnitude of elevated emissions. In addition, as stated in the 2014 SO 2 Nonattainment Guidance, if the source is exceeding the expected variability, such that the plan proves not to provide the expected confidence that the NAAQS is being attained, EPA will use its available authority to pursue any necessary correction of the plan.

Comment 5. The commenter states that the emission limits for Bruce Mansfield are needlessly complex and prevent transparency in determining compliance. The commenter asserts that the emission limit formula only applies when both Chimney 1 and Chimney 2 are operating, and as such it is unclear what limits apply when one chimney is not operating. In addition, the commenter states that when Chimney 2 emits over 3584 lbs/hour on a 30-day average, it is not clear what the allowable emission limits are for Chimney 1. The commenter states that a Federal plan with transparent emission limits should be adopted.

Response 5. EPA disagrees with the commenter that the emission limits for Bruce Mansfield are needlessly complex and lack the transparency needed to determine compliance. While the formula-based emission limit requires extra calculation to determine compliance, and therefore is more complex than a Unit-specific 30-day limit, all the data needed to calculate whether Bruce Mansfield is complying with the limit are available from the PADEP certified CEM data and are reported to EPA's Clean Air Markets Division. The CEM data are available at https://ampd.epa.gov/ampd/. Anyone may then determine Bruce Mansfield's compliance status simply by retrieving those data into a spreadsheet (or other suitable software) and applying the formula in the Pennsylvania's rule. As such, the limit is sufficiently transparent for Federal, state and public scrutiny.

EPA disagrees that the emission limit is not clear when one chimney is not operating. As described in the NPRM, Unit 1 and Unit 2 each vent through two flues within Chimney 1, and Unit 3 vents through two flues in Chimney 2. The 30-operating day rolling average SO 2 emissions rate for Units 1 and 2 cannot exceed the result of equation one (EQ-1), below, with Chimney 1 and Chimney 2 in service, calculated daily. Pursuant to this equation, the limit for the sum of emissions from Unit 1 and Unit 2 is a function of the emissions from Unit 3, with a maximum limit (when Unit 3 has low emissions) under 7,100 lb/hr. In addition, if Unit 3 is not operating (and therefore only Chimney 1 is operating), the 30-operating day rolling average emissions rate cannot exceed 7,362 lb/hr for Units 1 and 2 combined. The 30-operating day rolling average SO 2 emissions rate for Chimney 2 (Unit 3) cannot exceed 3,584 lb/hr.

In other words, if Chimney 1 is not in service, the stand-alone 30-operating day rolling average emission limit for Chimney 2 (Unit 3) is set at 3,584 lb/hr. If Chimney 2 is not in service, Chimney 1's 30-operating day average emission limit is 7,362 lb/hr. EPA continues to assert that the 30-operating day limit established for Bruce Mansfield is clear and transparent and therefore a Federal plan with a different limit is unnecessary.

Comment 5a. The commenter asserts that the emission inventories are improper because the projected 2018 emissions of 32,443 tons of SO 2 are greater than the actual emissions of 26,622 tons reported for 2011, when the Beaver County SO 2 monitor had a design value of 136 ppb. The commenter asserts that this increase in emissions is particularly egregious for Bruce Mansfield with 21,196 tons of SO 2 in 2011, and allowable 2018 emissions of 32,246 tons.

Response 5a. The commenter is comparing allowable emissions for 2018 against actual emissions for 2011. EPA agrees with the commenter that the allowable annual 2018 emissions for Bruce Mansfield (and for all sources combined in the Beaver Area) are greater than the base year 2011 annual actual emissions for Bruce Mansfield (and for all sources in the Beaver Area combined, respectively). However, air quality in a multi-source area like this is not a function of total allowable emissions, since sources with different stack heights, different locations, and other differences will have different impacts per ton of emissions. For example, the monitor is near the former Horsehead facility and the former AES Beaver facility, and the improvements in air quality at the monitor have clearly been more influenced by the shutdown of these facilities than by the decline in actual emissions at Bruce Mansfield. In this area, modeling provides the best information regarding the impact per ton of emissions from each facility. Pennsylvania has conducted an appropriate modeling analysis of this area, and EPA concurs with the state's finding that its limits for Bruce Mansfield (which reduce allowable emissions), in combination with the other emission reductions in the area, will assure that the area attains the standard, notwithstanding the fact that these limits allow more total emissions than were actually emitted in 2011.

Comment 5b. The commenter further claims that assuming 8,760 hours in a year, Bruce Mansfield's allowable annual emissions of 32,246 tons translates to an hourly allowable rate of 7,362 lbs/hr, an emission rate that is higher than many of the emission rate scenarios modeled by FirstEnergy. Also, because these modeled scenarios model attainment less than one microgram per cubic meter below the NAAQS, the annual allowable maximum SO 2 emissions for Bruce Mansfield are much greater than what the modeling indicates are protective of the NAAQS.

Response 5b. EPA disagrees with commenter that the allowable emissions for Bruce Mansfield are not protective of the NAAQS. EPA understands the commenter's concern as follows: Since there are modeled scenarios where the combined hourly emission value of Units 1, 2 and 3, are less than 7,362 lb/hr (which is the highest 30-day average emission value allowed under the emission limits) and those model runs show SO 2 concentrations very close to the standard, then an allowable emissions rate of 7,362 lb/hr is much greater than what several modeling runs indicate is protective of the NAAQS.

The commenter incorrectly assumes that all modeled scenarios are permitted. However, that is not the case. Seventeen scenarios with varying combinations of 1-hour critical emission values for Unit 1 and 2, and Unit 3 were modeled and used to develop an equation for limiting the combination of emissions from Units 1, 2 and 3 at Bruce Mansfield. As shown in Table 1, all 17 scenarios modeled attainment.

In addition to the limit on the combination of the three units' emissions, Pennsylvania also set a limit specifically limiting the emissions from Unit 3, that Unit 3 30-operating day average emissions shall not exceed 3,584 lb/hr. In model runs 9 through 11, Unit 3's emissions correspond to an adjusted 30-day average value that would have been greater than 3,584 lb/hr. Thus, these runs are disallowed scenarios.

It is these three model runs that the commenter refers to as those showing SO 2 concentrations very close to the standard, and asserts that the allowable emissions (calculated from these 1-hour values; i.e., for model run 9 from Table 1, using the 1-hour CEVs, 2056.54 + 4743.88 = 6800.42 lb/hr combined CEV for all units) are much less than the allowable emissions that PADEP calculates. Although the relevant values are hourly emissions, adjusted to be limited with 30-day average limits, both the commenter and PADEP calculated the corresponding annual emission rates. The model run 9 values correspond to annual emissions of 29,786 tons per year, which is much less than PADEP's calculated allowable annual emissions of 32,246 tons per year. If the emission rates in model runs 9 through 11 were allowable, they would indicate that Pennsylvania's limits are not protective of the NAAQS. However, these model runs contain disallowed emission rates, and so these runs are not indicative of the emission rates necessary to attain the standard. Therefore, EPA continues to support Bruce Mansfield's 30-day emission limits as demonstrating attainment of the 1-hour SO 2 NAAQS.

EPA is approving Pennsylvania's SIP revision submittal for the Beaver Area, as submitted by PADEP to EPA on September 29, 2017 for the purpose of demonstrating attainment of the 2010 1-hour SO 2 NAAQS. EPA has determined that Pennsylvania's SO 2 attainment plan for the 2010 1-hour SO 2 NAAQS for the Beaver Area meets the applicable requirements of the CAA in sections 110, 172 and 191-192, and comports with EPA's recommendations discussed in the 2014 SO 2 Nonattainment Area Guidance. Specifically, EPA is approving the base year emissions inventory, a modeling demonstration of SO 2 attainment, an analysis of RACM/RACT, an RFP plan, and contingency measures for the Beaver Area, and concludes that the Pennsylvania SIP has met requirements for NSR for the 2010 1-hour SO 2 NAAQS. Additionally, EPA is approving into the Pennsylvania SIP specific SO 2 emission limits, compliance parameters and contingency measures established for Bruce Mansfield, and operational restrictions for the Jewel Facility. Furthermore, approval of this SIP submittal removes EPA's duty to promulgate and implement a FIP under CAA section 110(c) for the Beaver Area.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the unredacted portions of the COA entered between Pennsylvania and FirstEnergy Generation, LLC for the Bruce Mansfield Generating Station, and the COA entered between Pennsylvania and Jewel Acquisition, LLC on September 21, 2017 as described in the amendments to 40 CFR part 52 set forth below. This includes emission limits and associated compliance parameters, record-keeping and reporting, and contingency measures for Bruce Mansfield; and operational restrictions for the Jewel Facility. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov/ or at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 11

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the Beaver Area attainment plan for the 1-hour SO 2 NAAQS into the Pennsylvania SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

This rule approves Ohio's April 23, 2019 submission of a plan to provide for maintenance of the 1997 ozone standard in the Dayton-Springfield area through 2028. The Dayton-Springfield area was designated as nonattainment for the 1997 ozone NAAQS on April 15, 2004 (69 FR 23857) and subsequently redesignated to attainment on August 13, 2007 (72 FR 45169). As a prerequisite to redesignation, Ohio developed a maintenance plan for the Dayton-Springfield area as required by CAA section 175A. The maintenance plan demonstrated that the area would continue to maintain the 1997 ozone standard through 2018 (more than 10 years after redesignation) and contained contingency provisions to assure that violations of the standard would be promptly corrected.

Under CAA section 175A(b), states must submit a revision to the first maintenance plan eight years after redesignation to provide for maintenance of the NAAQS for ten additional years following the end of the first 10-year period. On April 12, 2019, Ohio submitted a second maintenance plan for the Dayton-Springfield area demonstrating continued maintenance of the 1997 ozone NAAQS through 2028, i.e., through the end of the full 20-year maintenance period.

On July 9, 2019 (84 FR 32678), EPA proposed to approve Ohio's April 12, 2019 submittal. The specific details of Ohio's second 1997 ozone NAAQS maintenance plan for the Dayton-Springfield area and the rationale for EPA's approval are discussed in the notice of proposed rulemaking and will not be restated here.

EPA provided a 30-day review and comment period for the July 9, 2019, proposed rule. The comment period ended on August 8, 2019. We received no comments on the proposed rule.

EPA is approving, as a revision to the Ohio SIP, the State's plan for maintaining the 1997 ozone NAAQS through 2028 in the Dayton-Springfield area.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

EPA is approving changes to the Jefferson County portion of the Kentucky SIP that were provided to EPA through Kentucky's Division of Air Quality via a letter dated March 15, 2018. 1 2 EPA is approving the portions of this SIP revision that make changes to the District's Regulation 6.07, Standards of Performance for Existing Indirect Heat Exchangers. 3 The March 15, 2018, SIP revision makes minor and ministerial changes to Regulation 6.07 that do not alter the meaning of the regulation or the emissions levels for sources regulated under the Jefferson County Regulations, such as clarifying changes to its applicability. In addition, other changes in the submittal strengthen the SIP by adding specific test methods and procedures for determining compliance with applicable emissions limits for affected facilities. Accordingly, these rule changes do not relax the emissions reductions to applicable sources, nor do they change any applicable emissions limitations. The SIP revision updates the current SIP-approved version of Regulation 6.07 (version 3) to version 4.

See EPA's July 22, 2019 (84 FR 35052), notice of proposed rulemaking (NPRM) for further detail on these changes and EPA's rationale for approving them. EPA received adverse comments on the NPRM. EPA received one additional comment, available in the docket for this action, which is not relevant to this rulemaking. EPA has summarized and responded to the adverse comments in Section II of this action.

Comment : One commenter states that EPA should disapprove Regulation 6.07 because “it is inconsistent with the National Environmental Policy Act (NEPA) and it violates the Kentucky Clean Air Act.”

Response: EPA disagrees with this comment. The Agency is taking action pursuant to the Federal CAA, and actions under the CAA are exempt from NEPA. See 15 U.S.C. 793(c)(1). To the extent the commenter intended to reference Kentucky's Air Pollution Control District Act (codified at Kentucky Revised Statutes (KRS), Chapter 77, Air Pollution Control) in its comment regarding the “Kentucky Clean Air Act,” EPA notes that the District approved the revisions under KRS Chapter 77, stating in the SIP submittal that KRS 77.180 provides for the control of emissions from indirect heat exchangers. 4 Further, EPA notes that the commenter does not provide any rationale or information supporting its assertions.

Comment: One commenter states that the rule poses significant risks to public health and the environment and that it will negatively impact Kentucky's electricity market and increase energy prices in Kentucky. Similarly, another commenter suggests that EPA should “revisit” the rule because it does not properly address the community's needs and that the “system in place to assist our community in reducing energy costs is not the `best' fit today and is not fit in the future for our community.”

Response: EPA disagrees that the SIP revision poses a significant risk to public health and the environment. The changes to Regulation 6.07 do not alter any applicable emissions limitations and are therefore not expected to increase emissions. Rather, the revisions clarify and strengthen the SIP by providing specific testing requirements for certain sources. In addition, sources regulated pursuant to Regulation 6.07 are not otherwise required by Federal regulations to achieve emissions reductions; therefore, Regulation 6.07 benefits Jefferson County by requiring specific emissions reductions for particulate matter (PM) and sulfur dioxide (SO 2 ) from these sources.

With respect to the assertion that the action will impact the energy market and costs in Kentucky, EPA's role in reviewing SIP submittals is to approve state choices provided that they meet the minimum requirements of the CAA. See CAA section 110(k)(3). The economic reasonableness of the District's choice to modify Regulation 6.07 is not a factor that EPA can consider when acting on this SIP revision. See CAA section 110(a)(2); Union Elec. Co. v. EPA, 427 U.S. 246, 256-66 (1976). EPA notes, however, that the District anticipates no increased costs as a result of these rule revisions, as stated in the SIP submittal. Further, EPA notes that the commenter does not provide any rationale or information supporting its assertions regarding energy costs and risks to public health and the environment.

Comment: One commenter states that EPA should disapprove the changes to Regulation 6.07 because they are “inconsistent with EPA's national air quality management plan and are inconsistent with the Agency's statutory authority to define `greenhouse gas emissions' (which is what the proposed amendments are addressing).”

Response: It is unclear how this comment relates to the proposal. The commenter does not provide any specific information regarding the “national air quality management plan” or EPA's statutory authority to define greenhouse gas emissions, nor does the commenter explain how this plan and authority are allegedly inconsistent with EPA's action to incorporate the changes to Regulation 6.07 into the SIP. Further, EPA notes that Regulation 6.07 regulates the emissions of criteria air pollutants, namely PM and SO 2 , not greenhouse gases.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Jefferson County's Regulation 6.07, Standards of Performance for Existing Indirect Heat Exchangers, version 4, State effective January 17, 2018, which makes minor and ministerial changes to Regulation 6.07 that do not alter the meaning of the regulation or the emissions levels for sources and strengthens the SIP by adding specific test methods and procedures for determining compliance with applicable emissions limits for affected facilities. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 5

EPA is approving changes to the Jefferson County portion of the Kentucky SIP included in a March 15, 2018, submittal. Specifically, EPA is approving the District's Regulation 6.07 version 4 into the SIP. The March 15, 2018, SIP revision makes minor and ministerial changes such as clarifying the applicability of the regulation, and includes more specific requirements for test methods and procedures for affected facilities. These changes are consistent with the CAA and EPA policy, and these rule adoptions will not interfere with attainment or maintenance of the national ambient air quality standards (NAAQS) or with any other applicable requirement of the Act.

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

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. Executive Summary A. Purpose of the Regulatory Action

Section 16 of the PIPES Act (section 16) adds to 49 U.S.C. 60117(o) by establishing a new emergency order authority for the Secretary  1 in the area of pipeline safety. In section 16, Congress directed PHMSA to develop procedures for the issuance of emergency orders to address unsafe conditions or practices that constitute or cause an imminent hazard. This new authority augments PHMSA's existing authority ( e.g., corrective action orders, safety orders) to address hazardous conditions and pipeline integrity risks by allowing PHMSA to act quickly to address imminent safety hazards that exist across a group of pipeline owners and operators. As required by section 16, on October 14, 2016, PHMSA issued an IFR establishing procedures for the issuance of emergency orders to address unsafe conditions or practices, or a combination of unsafe conditions or practices, that constitute or are causing an imminent hazard. Further, the PIPES Act mandated that PHMSA issue final regulations carrying out section 16 no later than 270 days following enactment of the PIPES Act.

I. Rulemaking Documents A. Availability of Rulemaking Documents

For access to docket FMCSA-2001-11117 to read background documents and comments received, go to http://www.regulations.gov at any time, or to Docket Services at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.transportation.gov/privacy.

This final rule adopts the provisions of the IFR published on May 5, 2003 (68 FR 23844) that have not previously been made final, and the provisions of the subsequent IFR published on April 29, 2005 (70 FR 22268). This is an administrative action to finalize these rules. This final rule includes conforming changes to incorporate a provision of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act) (Pub. L. 110-53, Aug. 3, 2007) and two provisions of the FAA Reauthorization Act of 2018 (FAA Act) (Pub. L. 115-254, Oct. 5, 2018).

This rulemaking does not make substantive changes to the obligations of regulated entities. It adopts as final certain elements of the 2003 IFR and the 2005 IFR and includes non-discretionary provisions from the 9/11 Act and the FAA Act. This rulemaking has no incremental impacts on the regulated entities.

The legal basis for the 2003 IFR was explained in that document (68 FR 23844) and repeated in the 2005 IFR (70 FR 22268). Because those IFRs are available in the docket listed at the beginning of this document, the legal basis will not be repeated in detail here.

Briefly, section 1012 of the USA PATRIOT Act enacted 49 U.S.C. 5103a, which prohibits States from issuing a driver a hazardous materials endorsement to his/her CDL until the Secretary of Transportation has first determined that the driver does not pose a security risk warranting denial of the endorsement (Pub. L. 107-56, 115 Stat. 272, 396, Oct. 26, 2001).

The 9/11 Act made a technical correction to replace the reference to the “Secretary of Transportation” in 49 U.S.C. 5103a(a)(1) with a reference to the “Secretary of Homeland Security” (Sec. 1556, Pub. L. 110-53, 121 Stat. 266, 475, Aug 3, 2007). The change did not alter the legal basis of the 2003 and 2005 IFRs because those actions rested on a different provision, 49 U.S.C. 31305(a)(5)(C). The 9/11 Act also provided that an individual who has a valid transportation employee identification card issued by the Secretary of Homeland Security shall be deemed to have met the background check required by 49 U.S.C. 5103a.

The FAA Act (Pub. L. 115-254, Oct. 5, 2018) provides that an applicable individual subject to credentialing or a background investigation may satisfy that requirement by obtaining a valid TSC. Section 1978 of the FAA Act amended 49 U.S.C. 5103a(a)(1), by allowing a State to issue a license to operate a motor vehicle transporting hazardous material in commerce to an individual who holds a valid TSC issued under 46 U.S.C. 70105.

The Administrative Procedure Act requires an Agency to promulgate final rules only after prior notice and opportunity for comment, unless the Agency finds good cause that notice and opportunity for public comment are “impracticable, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)(3)(B)). FMCSA finds good cause that notice and comment are “unnecessary” for this rule. This rule simply makes final certain provisions of two interim final rules (IFRs) that have been in effect since 2003 and 2005. The Agency accepted post-publication comments on both IFRs, most recently in 2018 (see Limitation on the Issuance of Commercial Driver's Licenses With a Hazardous Materials Endorsement, Interim rules; re-opening of comment (83 FR 62503, Dec. 4, 2018)). Many other provisions of both IFRs were made final by notice-and-comment rulemaking after 2003 and 2005. In response to a comment filed when this docket was reopened (83 FR 62503, Dec. 4, 2018), the Agency also makes ministerial changes to incorporate provisions of the 9/11 Act and the FAA Act. None of these actions changes the burden on drivers, motor carriers, or State driver licensing agencies. The incorporation of provisions in the 9/11 Act and FAA Act merely codifies in the FMCSRs provisions already in effect by operation of law. Specifically, the Agency incorporates TSA's definition of a TWIC as equivalent to a TSC. Because public comments would not result in changes to any of these actions, additional notice and opportunity for comment are unnecessary.

On May 5, 2003, FMCSA published an IFR titled “Limitations on the Issuance of Commercial Driver's Licenses with a Hazardous Materials Endorsement” (68 FR 23844). In that document, the Agency revised its regulations to require State driver licensing agencies to issue or renew a hazardous materials endorsement for a CDL only if TSA has first determined that the applicant does not pose a security risk warranting denial of such endorsement. A CDL renewal, transfer, or upgrade was also considered a new issuance and fell within the scope of these requirements if it involved a hazardous materials endorsement. The IFR implemented FMCSA's part of the requirements of section 1012 of the USA PATRIOT Act, which limited the issuance of hazardous materials licenses. Because FMCSA shares with TSA the responsibility for implementing section 1012—codified in 49 U.S.C. 5103a and 31305(a)(5)(C)—TSA concurrently published an IFR containing regulations governing the security risk determination process in 49 CFR parts 1570 and 1572 (May 5, 2003, 68 FR 23852). FMCSA received comments, which are summarized in a document filed in the docket. No public meeting was requested and none was held. The IFR became effective upon publication on May 5, 2003.

On April 29, 2005, FMCSA published an IFR titled “Limitations on the Issuance of Commercial Driver's Licenses with a Hazardous Materials Endorsement” (70 FR 22268). That rule was issued as an IFR because it related to the 2003 IFR. In the preamble, FMCSA wrote that the 2005 IFR would be subsumed into the 2003 IFR when that rulemaking was finalized. FMCSA's 2003 IFR provided a specific date on which States became subject to the new requirement. The 2005 IFR amended the FMCSRs to cross-reference the TSA's compliance date as the date when FMCSA's companion requirements also became applicable (70 FR 22268). Consistent with the TSA regulations, FMCSA also reduced the amount of advance notice that States must provide to drivers that a security threat assessment will be performed when they renew a hazardous materials endorsement. FMCSA did not receive any comments on the 2005 IFR. No public meeting was requested and none was held. The IFR became effective upon publication on April 29, 2005.

Some of the provisions in the May 5, 2003 IFR were subsequently changed in notice and comment rulemaking, and became final. They are described in the following table. Those items listed as “same” in the second column have not been changed since they were originally implemented in 2003.

In a document published in the Federal Register on December 4, 2018 (83 FR 62503), FMCSA announced its plan to adopt the provisions of the IFRs that had not previously been made final, and its intention to incorporate sections 1977 and 1978 of the FAA Act. That document re-opened the comment period for 15 days to ensure that interested parties had an opportunity to offer comments on the prior IFRs and the provisions from the FAA Act. The comment period closed on December 19, 2018. FMCSA received one comment, which is discussed below.

In the 2003 IFR, FMCSA amended the CDL driver application (§ 383.71) and State licensing (§ 383.73) procedures to require all individuals to pass the TSA screening process when renewing, upgrading, transferring, or newly applying for a CDL with a hazardous materials endorsement. Similarly, the Agency added a new subpart I (§ 383.141) to prohibit the issuance of a hazardous materials endorsement for a CDL unless TSA has determined that the applicant does not pose a security risk warranting denial of the endorsement. FMCSA added § 383.141(c) to require a State to notify an individual at least 180 days (6 months) prior to the expiration date of a CDL or hazardous materials endorsement that he or she must pass the new TSA security screening process. Finally, the Agency added § 383.141(d) to require States to adopt, at minimum, a 5-year renewal cycle for a CDL hazardous materials endorsement.

To comply with statutory requirements, FMCSA added a definition of “Alien.” FMCSA also revised the definition of “Hazardous materials” to include “any chemical or biological material or agent determined by the Secretary of Health and Human Services or the Attorney General to pose a threat to national security.” Additionally, in the definition of “Commercial motor vehicle” (CMV) and in § 383.93(b)(4), FMCSA made conforming changes to ensure that drivers newly covered by the hazardous materials definition are required to obtain a CDL with a hazardous materials endorsement, and are subject to the TSA security screening process. The Agency made changes to § 383.23(c) to ensure that the rules governing the CDL learner's permit were consistent with TSA's implementing regulations. FMCSA also added § 384.233 to describe the requirements with which States must comply.

On April 29, 2005, FMCSA published another IFR that changed § 383.141 to conform to changes in the TSA regulations. In § 383.141(a), the Agency removed the applicability date and inserted a cross-reference to the date in 49 CFR 1572.13(b). FMCSA also shortened the time frame in § 383.141(c) in which a State must give notice to a holder from 180 days to 60 days. FMCSA required the notice to inform the individual that he or she may initiate the security threat assessment no later than 30 days before the date of expiration of the endorsement, not the 90 days in the 2003 IFR.

As noted in the table above, many of these provisions have been amended and finalized in separate regulatory actions occurring since 2005. Today's action will finalize the following provisions, which have not been otherwise revised or finalized since they were first promulgated in 2003 or 2005:

(1) Definition of “Alien” in § 383.5;

(2) Definition of “Hazardous materials” in § 383.5;

(3) Addition of paragraph (b)(4) to § 383.93, requiring State-issued endorsements on CDLs when the holder is operating a CMV used to transport hazardous materials;

(4) Creation of the Subpart title for subpart I (Requirement for Transportation Security Administration approval of hazardous materials endorsement issuances);

(5) Addition of paragraphs (b) and (d) in § 383.141, prohibiting a State from issuing, renewing, upgrading, or transferring a hazardous materials endorsement on a CDL unless TSA has determined that the holder of the CDL does not pose a security risk, and establishing a 5-year renewal cycle for hazardous materials endorsements, respectively; and

(6) Addition of § 384.233, requiring States to comply with any TSA requirements regarding background checks for drivers seeking to obtain, renew, transfer, or upgrade a hazardous materials endorsement.

FMCSA solicited comments to both the 2003 and 2005 IFRs. The Agency received over 50 comments on the 2003 IFR; a summary of those comments is available in docket FMCSA-2001-11117. No comments were received on the 2005 IFR.

The comments filed in the FMCSA docket by the Commercial Vehicle Safety Alliance, the American Association of Motor Vehicle Administrators, and various States focused almost entirely on TSA requirements rather than the FMCSA rule, and most appear to have been filed in the TSA docket as well. TSA's 2003 IFR required States to begin fingerprint-based criminal records background checks by November 3, 2003. The comments of the Iowa Department of Transportation are typical of those filed by other affected parties: “[T]he compliance date of November 3, 2003, does not provide a reasonable amount of time in which to make changes to the Iowa Administrative Code, to make technical amendments to state statutes, to make appropriate computer programming changes, to train employees and to put in place the mechanism with law enforcement agencies for fingerprinting services or contract with a third party for such services. Holding the jurisdictions to an unreasonable compliance date may place every state into a status of noncompliance with a CDL program we have worked hard to be compliant with since 1992.” In response to these and subsequent objections, TSA moved the compliance date for fingerprint-based background checks, first to April 1, 2004 (68 FR 63033, Nov. 7, 2003) and then to January 31, 2005 (69 FR 17969, Apr. 6, 2004).

Individual drivers, trucking companies, and several States commented on TSA's list of offenses that would permanently disqualify a driver from obtaining a hazardous materials endorsement. TSA therefore amended that list in an IFR of November 24, 2004 (69 FR 68720).

Finally, many States raised technical questions about the necessary electronic interface with TSA and the Federal Bureau of Investigation, which compares the fingerprints used for the criminal check against available criminal rap sheets. These were not strictly regulatory issues and were resolved over time through technical and administrative solutions.

FMCSA's IFR of April 29, 2005, simply required the States to comply with the various changes TSA had implemented over the previous two years.

In short, the issues raised by commenters in 2003 are moot because they involved procedural questions that have been resolved and implementation deadlines that have long passed. The questions posed by commenters have been resolved outside the context of the IFRs, and requests for clarification of the IFRs or the TSA rules have been satisfied through direct contacts with commenters and other affected parties. Most importantly, commenters' objections have been met by significant amendments to the TSA rules on background checks and by subsequent conforming changes to the FMCSA regulations.

As noted earlier, FMCSA re-opened the comment period on these two IFRs in late 2018, and received one comment, jointly submitted by The National Tank Truck Carriers, Inc. (NTTC) and the American Trucking Associations (ATA), regarding Sec. 1978 of the FAA Act. NTTC and ATA called for an update of 49 CFR 383.141, arguing that States are empowered by 49 U.S.C. 5103(a) to issue hazardous materials endorsements to drivers holding TWIC cards. NTTC and ATA requested that FMCSA issue guidance to ensure that States adopt a common standard. NTTC and ATA maintained that FMCSA is in a better position to instruct States on how best to verify a TWIC's validity. NTTC and ATA argued that, by virtue of 6 U.S.C. 1206 and Sec. 1978 of the FAA Act, Congress intended the State driver licensing agencies and FMCSA to be the primary actors in regulating the issuance of hazardous material endorsements when TSA background checks are not required.

Accordingly, NTTC and ATA requested that the Agency:

• Include 6 U.S.C. 1206 into the legislative authority for hazardous materials endorsement background checks;

• Modify the requirements on States for issuing hazardous materials endorsements to conform with Sec. 1978 of the FAA Act, including the addition of a definition for TWIC; and

• Advise and liaise with TSA to modify 49 CFR part 1572, subpart A, to conform with Sec. 1978 of the FAA Act.

NTTC and ATA requested expansion of the rule's legislative authority section to include Sec. 1556(b) of the Implementing Recommendations of the 9/11 Commission Act of 2007, codified at 6 U.S.C. 1206. Section 1206 provides that an individual who has a valid transportation employee identification card issued under 46 U.S.C. 70105 shall be deemed to have met the background records check required under 49 U.S.C. 5103a. Although Sec. 1206 is directed to the Department of Homeland Security, and not FMCSA, 49 U.S.C. 31305(a)(5)(C) requires this Agency to issue regulations to ensure that a CDL applicant “is licensed by a State to operate the [commercial motor] vehicle after having first been determined under section 5103a of this title as not posing a security risk warranting denial of the license.” To carry out Sec. 31305(a)(5)(C), FMCSA must be able to implement the mandate of 6 U.S.C. 1206 and the amendments to 49 U.S.C. 5103a. The authority of those provisions is therefore implicitly delegated to FMCSA and will be listed in the authority citation for 49 CFR part 383.

Further, NTTC and ATA requested modification of § 383.141 to properly vest the authority to issue hazardous materials endorsements to individuals who hold TWICs with State driver licensing agencies. FMCSA makes this adjustment to the regulation pursuant to the FAA Act. The Agency is also adding a definition of TWIC as requested by the commenter, to ensure there is no confusion among State driver licensing agencies or drivers.

Regarding the request that FMCSA liaise with the TSA to update 49 CFR parts 1570 and 1572 to ensure that they are grounded in congressionally-delegated authority, FMCSA will forward this comment to TSA, which has the sole authority to make changes to the cited regulations.

FMCSA determined that this final rule is not a significant regulatory action under section 3(f) of Executive Order (E.O.) 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, the Office of Management and Budget (OMB) has not reviewed it under that Order. It is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, Feb. 26, 1979).

In a document published on December 4, 2018, FMCSA announced its plan to adopt the provisions of the IFRs that had not previously been made final, as well as its intention to incorporate sections 1977 and 1978 of the FAA Act. These sections, which were enforceable upon the Act's publication on October 5, 2018, provided an exemption from the TSA screening process for individuals holding a valid TWIC. This final rule adds § 383.141(b)(2) to 49 CFR to be consistent with this provision in the FAA Act. This rulemaking also adopts as final the elements of the 2003 IFR and the 2005 IFR.

While some parts of the 2003 IFR remain unchanged, other elements have been changed and made final by subsequent rulemaking. This rulemaking finalizes the following sections:

• Section 383.5 (Definitions of “Alien”, “Hazardous materials”, and “TWIC”);

• Section 383.93(b)(4) (Endorsements);

• Section 383.141(b), (c), and (d) (Subpart I—Requirement for Transportation Security Administration Approval of Hazardous Materials Endorsement Issuances); and

• Section 384.233 (Background Records Checks).

Because this rulemaking is procedural and simply finalizes those provisions of the 2003 and 2005 IFRs that are not already final, and incorporates provisions of the 9/11 Act and the FAA Act, this rulemaking does not result in an incremental change from the IFRs. Those statutes have been in effect since their enactment in 2007 and 2018, respectively. Thus, this rulemaking has no incremental impacts on the regulated entities.

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

The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal agencies to consider the impact of their regulatory proposals on small entities, analyze effective alternatives that minimize small entity impacts, and make their analyses available for public comment. The term “small entities” means small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. 1 Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these entities. Section 605 of the RFA allows an Agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

This rule directly affects the States and driver applicants for a hazardous materials endorsement. Under the standards of the RFA, as amended by the SBREFA, neither the States nor driver applicants for a hazardous materials endorsement are small entities. States are not considered small entities because they do not meet the definition of a small entity in section 601 of the RFA. Specifically, States are not considered small governmental jurisdictions under section 601(5) of the RFA, both because State government is not included among the various levels of government listed in section 601(5), and because, even if this were the case, no State, including the District of Columbia, has a population of less than 50,000, which is the criterion for a governmental jurisdiction to be considered small under section 601(5) of the RFA. Driver applicants for a hazardous materials endorsement are not considered small entities because they too do not meet the definition of a small entity in section 601 of the RFA. Specifically, driver applicants for a hazardous materials endorsement are considered neither a small business under section 601(3) of the RFA, nor are they considered a small organization under section 601(4) of the RFA. Therefore, this final rule does not have an impact on a substantial number of small entities.

Accordingly, I hereby certify that the action does not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the SBREFA, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, Mr. Selden Fritschner, listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's 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 FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

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 $161 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2017 levels) or more in any 1 year. Though this final rule will not result in such an expenditure, the Agency does discuss the effects of this rule elsewhere in this preamble.

This final 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 section 1(a) of Executive Order 13132 if it has “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.” When FMCSA issued the original IFRs on May 5, 2003 (68 FR 28344), and April 29, 2005 (70 FR 22268), it determined that those rules did not impose substantial direct costs on or for States, nor did they limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, this regulatory action could not disproportionately affect children.

FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

Because the 2003 IFR was in effect prior to the enactment of section 522, of title I of division H of the Consolidated Appropriations Act, 2005 (Pub. L. 108-447, 118 Stat. 2809, 3268, Dec. 8, 2004, 5 U.S.C. 552a note), FMCSA was not required to provide a Privacy Impact Assessment (PIA) for that rulemaking. This rulemaking is an administrative action to clarify the legal status of the 2003 and 2005 IFRs, and it makes minor conforming changes to the CFR to incorporate subsequent legislation. FMCSA, however, submitted a Privacy Threshold Assessment (PTA) analyzing the rulemaking to the Secretary of Transportation's Privacy Office for formal adjudication. FMCSA provides the following description of the PTA, describing current requirements, for information.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, requires the Agency to conduct a PIA of a regulation that will affect the privacy of individuals. Any such assessment must consider impacts of a final rule on the privacy of information in an identifiable form and related matters. The FMCSA Privacy Officer and the DOT Privacy Officer have evaluated the risks and effects this rulemaking might have on collecting, storing, and sharing personally identifiable information (PII) and have evaluated protections and alternative information handling processes in developing the final rule in order to mitigate potential privacy risks and have determined that this rule does not require the collection of PII by FMCSA. This rulemaking has the ultimate effect of requiring individuals to provide sensitive PII to the Transportation Security Administration (TSA). Individuals should refer to the TSA privacy office website at https://www.dhs.gov/privacy-documents-transportation-security-administration-tsa for more information about TSA's collection and use of the data.

The E-Government Act of 2002, Public Law 107-347, Sec. 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. This is formally documented in the PTA submitted to the DOT Privacy Officer. Therefore, FMCSA has not conducted a privacy impact assessment.

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

This rule does not have tribal implications under E.O. 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 National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards.

FMCSA analyzed this rule for the purpose of NEPA (42 U.S.C. 4321 et seq. ) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, Mar. 1, 2004), Appendix 2, paragraph 6.d. That categorical exclusion relates to establishing regulations and actions taken pursuant to these regulations that concern the training, qualifying, licensing, certifying, and managing of personnel.

For the reasons set forth in the preamble, FMCSA amends title 49, Code of Federal Regulations, chapter III as follows.

U.S. purse seine fishing in the area of application of the Convention, or Convention Area, is managed, in part, under the Western and Central Pacific Fisheries Convention Implementation Act, 16 U.S.C. 6901 et seq. (Act). Regulations implementing the Act are at 50 CFR part 300, subpart O. On behalf of the Secretary of Commerce, NMFS promulgates regulations under the Act as may be necessary to carry out the obligations of the United States under the Convention, including implementation of the decisions of the Commission.

Pursuant to WCPFC Conservation and Management Measure 2018-01, NMFS issued regulations that established a limit of 1,616 fishing days that may be used by U.S. purse seine fishing vessels in the ELAPS in calendar year 2019 (see interim rule at 84 FR 37145, published July 31, 2019, to be codified at 50 CFR 300.223). The ELAPS consists of the areas of the U.S. Exclusive Economic Zone (EEZ) and the high seas that are in the Convention Area between the latitudes of 20° N and 20° S (see definition at 50 CFR 300.211). A fishing day means any day in which a fishing vessel of the United States equipped with purse seine gear searches for fish, deploys a fish aggregating device (FAD), services a FAD, or sets a purse seine, with the exception of setting a purse seine solely for the purpose of testing or cleaning the gear and resulting in no catch (see definition at 50 CFR 300.211).

Based on data submitted in logbooks and other available information, NMFS expects that the limit of 1,616 fishing days in the ELAPS will be reached, and in accordance with the procedures established at 50 CFR 300.223(a), announces that the purse seine fishery in the ELAPS will be closed starting at 00:00 on October 9, 2019 UTC, and will remain closed until 24:00 on December 31, 2019 UTC. Accordingly, it shall be prohibited for any fishing vessel of the United States equipped with purse seine gear to be used for fishing in the ELAPS from 00:00 on October 9, 2019 UTC until 24:00 December 31, 2019 UTC, except that such vessels will not be prohibited from bunkering in that area during that period (50 CFR 300.223(a)). Fishing means using any vessel, vehicle, aircraft or hovercraft for any of the following activities, or attempting to do so: (1) Searching for, catching, taking, or harvesting fish; (2) engaging in any other activity which can reasonably be expected to result in the locating, catching, taking, or harvesting of fish for any purpose; (3) placing, searching for, or recovering fish aggregating devices or associated electronic equipment such as radio beacons; (4) engaging in any operations at sea directly in support of, or in preparation for, any of the activities previously described in elements (1) through (3) of this definition, including, but not limited to, bunkering; or (5) engaging in transshipment at sea, either unloading or loading fish (see definition at 50 CFR 300.211). As noted above, bunkering will not be prohibited in the closure area during the closure period.

There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment on this action. Compliance with the notice and comment requirement would be impracticable and contrary to the public interest, since NMFS would be unable to ensure that the 2019 limit on purse seine fishing effort in the ELAPS is not exceeded. This action is based on the best available information on U.S. purse seine fishing effort in the ELAPS. The action is necessary for the United States to comply with its obligations under the Convention and is important for the conservation and management of bigeye tuna, yellowfin tuna, and skipjack tuna in the western and central Pacific Ocean. For the same reasons, there is good cause under 5 U.S.C. 553(d)(3) to establish an effective date less than 30 days after the date of publication of this notice.

This action is required by 50 CFR 300.223(a) and is exempt from review under Executive Order 12866.

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

On July 19, 2019, NMFS published a proposed rule for the framework action and requested public comment (84 FR 34845). The proposed rule and the framework action outline the rationale for the actions contained in this final rule. A summary of the management measures described in the framework action and implemented by this final rule is described below.

Unless otherwise noted, all weights described in this rule are in gutted weight.

For 2018, the red grouper commercial ACL was 8,190,000 lb (3,714,922 kg) and the commercial ACT (commercial quota) was 7,780,000 lb (3,528,949 kg); while the red grouper recreational ACL was 2,580,000 lb (1,170,268 kg) and the recreational ACT was 2,370,000 lb (1,075,014 kg).

At the October 2018 meeting, the Council received a recommendation from its Scientific and Statistical Committee (SSC) to reduce the red grouper commercial and recreational ACLs and ACTs, effective for the 2019 fishing year. Since 2014, combined commercial and recreational Gulf red grouper landings have trended downwards from over 7.26 million lb (3.29 million kg) in 2014 to approximately 4.16 million lb (1.89 million kg) in 2017. The most recent red grouper stock assessment (Southeast Data, Assessment, and Review (SEDAR) 61), was not scheduled for completion until later in 2019. Therefore, the NMFS Southeast Fisheries Science Center (SEFSC) conducted an interim red grouper stock analysis to assist the SSC in developing harvest advice for the 2019 fishing year. This analysis suggested that the stock may be declining and supported recommending that the Council reduce the 2019 Gulf red grouper total ACL to 4.60 million lb (2.09 million kg).

In addition to the SSC's advice based on the interim analysis, the Council heard public testimony at the October 2018 meeting primarily from commercial fishermen. These fishermen expressed concern about the status of the red grouper stock, noting that red grouper are harder to catch than in previous years and that there appears to be a scarcity of legal-size and larger fish throughout the species' range on the west Florida shelf. The Council also discussed the severe red tide conditions that occurred off the Florida west coast in the summer and fall of 2018, which may have adversely affected the red grouper stock. Based on these recommendations, the Council requested that NMFS implement an emergency or interim rule to reduce the Gulf red grouper stock ACL for the 2019 fishing year to 4.60 million lb (2.09 million kg), or equal to the 2017 total red grouper landings level, whichever is less. The Council also began work on this red grouper framework action to reduce the red grouper catch limits beyond 2019.

The 2017 combined red grouper commercial and recreational landings (approximately 4.16 million lb (1.89 million kg)) were less than the SSC recommended combined ACL of 4.60 million lb (2.09 million kg). Therefore, NMFS implemented an emergency rule (84 FR 22389, May 17, 2019) to reduce the red grouper commercial and recreational ACLs and ACTs consistent with a stock ACL of 4.16 million lb (1.89 million kg). The emergency rule is effective through November 13, 2019, and may be extended for a maximum of an additional 186 days.

This final rule continues the red grouper ACLs and ACTs implemented by the emergency rule for the 2019 fishing year. Based on the framework action, the stock ACL is 4.16 million lb (1.89 million kg), which is equal to the 2017 combined red grouper commercial and recreational landings. Applying the commercial allocation of 76 percent results in a commercial ACL of 3.16 million lb (1.43 million kg). The commercial ACT is set at 95 percent of the commercial ACL, or 3.00 million lb (1.36 million kg).

For the recreational sector, 24 percent of the 4.16 million lb (1.89 million kg) total stock ACL results in a recreational ACL of 1.00 million lb (0.45 million kg). The recreational ACT is set at 92 percent of the recreational ACL, or 0.92 million lb (0.42 million kg).

The ACLs and ACTs implemented through the emergency action and continued through the promulgation of this rule are expected to benefit the stock. As described in the framework action, indicators suggest the stock may be in decline and that harvest levels need to be lowered. The stock has been assessed through SEDAR 61 and the Council's SSC is expected to make a new catch level recommendation in September 2019. The Council expects the reductions in ACLs and ACTs implemented by this final rule to lessen the impact of any possible future changes in the ACLs and ACTs in response to the information and catch level recommendation derived from SEDAR 61.

NMFS received 15 comments on the proposed rule for the framework action. The majority of the comments supported the proposed rule and the framework action. Some comments supporting the action suggested that additional management measures are necessary to protect the stock, such as prohibiting commercial and recreational fishing during the spawning season, reducing the recreational bag limit and season length, and increasing the commercial size limit.

Comments specific to the framework action and the proposed rule are grouped as appropriate and summarized below, each followed by NMFS' respective response.

Comment 1: Because of the uncertainty in recreational landings estimates, additional measures such as a lower bag limit and longer seasonal closure should be implemented for the recreational sector to protect the stock.

Response: NMFS acknowledges that uncertainty exists in estimating recreational landings. However, NMFS does not agree that additional recreational management measures are needed at this time to protect the red grouper stock. The catch levels established through this final rule are equal to 2017 harvest levels. In addition, preliminary data show that 867,118 lb (393,318 kg), gutted weight, were landed in 2018. This is below the 1.00 million lb (0.45 million kg) ACL and 0.92 million lb (0.42 million kg) ACT implemented through this final rule. Thus, NMFS expects the 2019 recreational season to remain open all year under the current 2-fish red grouper recreational bag limit. However, should landings reach or be projected to reach the recreational ACL, NMFS is required to close the recreational sector for the remainder of the fishing year.

NMFS estimates Gulf red grouper and other reef fish recreational landings from information collected through the Marine Recreational Information Program (MRIP), Southeast Headboat Survey (SHS), Louisiana Department of Wildlife and Fisheries creel survey, and the Texas Parks and Wildlife Department creel survey. Before these data are used to monitor landings, NMFS checks for errors and generates any necessary weight estimates. With respect to private angler landings, NMFS has improved MRIP to reduce bias identified by the National Academies of Sciences by modifying both the angler intercept survey, which collects information at the dock, and the household survey, which collects information by contacting anglers at home. With respect to the for-hire component, NMFS is working to implement an electronic data reporting system that will require all federally permitted headboats and charter vessels to report landings after every trip. Currently, headboats report weekly and MRIP collects information from charter vessels randomly through a survey that is used to produce bi-monthly catch estimates. Thus, NMFS expects the accuracy of recreational landings estimate to continue to improve.

Comment 2: Both the commercial and recreational sectors should be closed to red grouper fishing during the spawning season.

Response: For this framework action, the Council only considered reducing the red grouper ACLs and ACTs. However, current regulations do protect the stock during some of the spawning season.

Based on information from the SEDAR 42 red grouper stock assessment, the majority of spawning occurs between March and June and in waters deeper than 20 fathoms. For the recreational sector, there is a February 1 through March 31 shallow-water grouper closed season seaward of a line approximating the 20 fathom contour in the eastern Gulf. Although this closure was implemented to protect gag spawning aggregations, the closed season protects other grouper species that spawn offshore during those months, including red grouper. In addition, there are areas closed to reef fish fishing in the Gulf that are in effect year-round ( e.g., Madison-Swanson and Steamboat Lumps) or seasonally ( e.g., The Edges; closed from January through April).

For the commercial sector, the individual fishing quota (IFQ) program does allow red grouper fishing year-round, but the area closures referred to previously apply. In addition, from June through August, bottom longline gear is not allowed shoreward of a line approximating the 50 fathom contour. Because the majority of landed red grouper are caught with bottom longline gear in waters shallower than 50 fathoms, this seasonal prohibition affords some protection to the spawning stock.

NMFS expects a new stock assessment (SEDAR 61) for red grouper to be complete in the fall of 2019. Based on the assessment results, the Council may take further action to protect the red grouper stock, which could include revisions to seasonal closures.

Comment 3: To increase protection to the red grouper stock, the commercial minimum size limit should be increased from 18 inches (45.7 cm) to 20 inches (50.8 cm) total length (TL), consistent with the current recreational minimum size limit.

Response: NMFS disagrees. The commercial minimum size limit was reduced from 20 inches (50.8 cm) TL through the final rule implementing Amendment 30B to the FMP in 2009 (74 FR 17603; April 16, 2009). The Council and NMFS made this change to reduce discard mortality in the commercial fishing sector. Size limit analyses showed that reducing the size limit, especially in the commercial longline component of the fishery, was expected to decrease the number of discarded fish and increase the yield-per-recruit, which benefits the stock.

Comment 4: Reducing the red grouper commercial quota has driven-up lease prices for allocation and harmed small IFQ fishing operations.

Response: NMFS recognizes that the price of allocation has likely increased as a result of the decrease in the commercial quota implemented through the emergency rule, and that allocation prices will likely continue to be higher as a result of this final rule. However, as explained previously, the purpose of this framework action is to protect the red grouper stock, which has shown signs of decline. Further, as explained in the framework action, NMFS expects the impact to those fishermen who lease allocation to be lessened by a foreseeable increase in the ex-vessel prices for red grouper.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

This rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule.

NMFS published the proposed rule for the framework action and prepared an Initial Regulatory Flexibility Analysis (IRFA) to accompany the proposed action. The IRFA concluded that the action would have a significant adverse impact on the average annual 330 small commercial fishing businesses and their combined 376 federally permitted fishing vessels that harvest red grouper from the Gulf.

A final regulatory flexibility analysis (FRFA) parallels the IRFA and must also include a summary of significant issues raised by public comments in response to the IRFA, any changes in the action in response to those comments or new information, a description of the steps the agency took to minimize the adverse economic impact on small entities, and why it selected the alternative adopted.

The Chief Counsel for Advocacy of the Small Business Administration did not file any comments on the proposed rule. No public comments were received on the IRFA or the economic impacts of the rule more generally. NMFS has not received any new information that would affect its previous determination. As a result, the estimates and conclusions of the IRFA have not changed, and the IRFA is incorporated by reference.

An emergency rule reduced the red grouper commercial quota for 2019 to 3.00 million lb (1.36 million kg). This final rule will maintain that reduction of the red grouper quota for 2020 and beyond, unless modified by the Council. The Council considered two other alternatives to the commercial quota revision: Either no change or a reduction to 3.32 million lb (1.51 million kg). The no-action alternative has no short-term impacts on small businesses, but was not selected by the Council because it allows for declining status of the stock. The second non-selected alternative has smaller short-term costs than the selected alternative, but it may not provide for sufficient protection of the stock.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all interested parties.

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

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102, and the revised 2019 allocations were published on May 17, 2019 (84 FR 22392).

The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan, as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider the criteria in § 648.102(c)(2)(i)(A) through (C) in the evaluation of requests for quota transfers or combinations.

North Carolina is transferring 12,500 lb (5,667 kg) of summer flounder commercial quota to Virginia through mutual agreement of the states. This transfer was requested to repay landings made by North Carolina-permitted vessels in Virginia under a safe harbor agreement. Maine is transferring 5,224 lb (2,369 kg) of summer flounder, its full 2019 allocation, to Connecticut through mutual agreements of the states. The revised summer flounder quotas for fishing year 2019 are now: North Carolina, 2,957,742 lb (1,341,609 kg); Virginia, 2,390,710 lb (1,084,407 kg); Maine, 0 lb (0 kg); and Connecticut, 253,119 lb (114,813 kg).

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS closed directed fishing for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) (84 FR 9000, March 13, 2019).

NMFS has determined that approximately 6,000 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2019 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., October 1, 2019, through 2400 hrs, A.l.t., December 31, 2019. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area.

The Administrator, Alaska Region considered the following factors in reaching this decision: (1) The current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of POP directed fishing in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 24, 2019.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow the fishery for POP in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until October 16, 2019.

This action is required by §§ 679.20 and 679.25 and is exempt from review under Executive Order 12866.