On August 22, 2019 (84 FR 43669), the NRC published a direct final rule amending § 72.214 of title 10 of the Code of Federal Regulations, “List of approved spent fuel storage casks,” to include Amendment No. 3 to Certificate of Compliance No. 1008 for the Holtec International Storage, Transport and Repository (HI-STAR) 100 Storage System. Specifically, Amendment No. 3 revises the technical specifications to: Include the multipurpose canister (MPC)-32 for storage of pressurized-water reactor spent fuel in the HI-STAR 100 Storage System; include the Metamic neutron absorber for MPC-32, MPC-24, and MPC-68; credit the soluble boron in criticality analyses for both MPC-32 and MPC-24; incorporate standard system features and ancillaries such as the forced helium dehydration; allow for horizontal storage of the casks; provide updated drawings; and revise the MPC design pressure for accident condition to 200 pounds per square inch gauge. Amendment No. 3 also makes other administrative changes to the technical specifications.

In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on November 5, 2019. The NRC did not receive any comments on the direct final rule. Therefore, this direct final rule will become effective as scheduled.

The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively, the agencies) are issuing a final rule that increases the major assets prohibition thresholds for management interlocks for purposes of the Depository Institution Management Interlocks Act (DIMIA). 1 The increase in the thresholds accounts for changes in the United States banking market since Congress established the current thresholds in 1996. Prior to this final rule, a management official  2 of a depository organization  3 (or any affiliate of such organization) with total assets exceeding $2.5 billion could not serve as a management official of an unaffiliated depository organization (or any affiliate of such organization) with total assets exceeding $1.5 billion without seeking an exemption. The final rule increases both thresholds to $10 billion.

By increasing the major assets prohibition thresholds, the final rule reduces the number of depository organizations subject to the major assets prohibition. This will reduce burden by relieving depository organizations below the increased thresholds from having to ask the agencies for exemptions from the major assets prohibition. The agencies anticipate that raising the asset thresholds will assist small depository organizations in finding qualified directors by eliminating the need to file requests for exemptions from the major assets prohibition.

DIMIA—implemented in the agencies' respective rules at 12 CFR parts 26, 212, 238 subpart J, and 348—fosters competition by prohibiting a management official from serving at the same time as a management official of an unaffiliated depository organization in situations where the management interlock may have an anticompetitive effect. 4 DIMIA achieves this purpose through three statutory prohibitions, which are implemented in the agencies' rules.

The first prohibition, the community prohibition, precludes a management official of a depository organization from serving at the same time as a management official of an unaffiliated depository organization if the depository organizations in question (or any depository institution affiliate thereof) have offices in the same community. 5 The second prohibition, the relevant metropolitan statistical area (RMSA) prohibition, precludes a management official of a depository organization from serving at the same time as a management official of an unaffiliated depository organization if the depository organizations in question (or any depository institution affiliate thereof) have offices in the same RMSA  6 and each depository organization has total assets of $50 million or more. The third prohibition, the major assets prohibition, precludes a management official of a depository organization with total assets exceeding $2.5 billion (or any affiliate of such an organization) from serving at the same time as a management official of an unaffiliated depository organization with total assets exceeding $1.5 billion (or any affiliate of such an organization), regardless of the location of the two depository organizations. While the first two prohibitions capture the risk of anticompetitive effects from management interlocks between depository organizations that operate within overlapping geographical areas, the major assets prohibition addresses management interlocks between depository organizations that are large enough that a management interlock may present anticompetitive concerns despite the fact that the involved organizations may not have offices in the same community or RMSA.

DIMIA allows the agencies to prescribe regulations that permit otherwise prohibited interlocks under certain circumstances. 7 Pursuant to the implementing regulations, the appropriate agency may exempt a prohibited interlock in response to an application by a depository organization if the appropriate agency finds that the interlock would not result in a monopoly or substantial lessening of competition and would not present safety and soundness concerns. 8

The $1.5 billion and $2.5 billion thresholds in the major assets prohibition were enacted through amendments to DIMIA in the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA). 9 During hearings on EGRPRA, it was noted that the increase of the asset thresholds to $1.5 billion and $2.5 billion was made because the previous asset threshold numbers did not “realistically reflect the size of large institutions in today's market.”  10

DIMIA, as amended, also provides that the agencies may adjust the thresholds as necessary “to allow for inflation or market changes.”  11 Unadjusted since 1996, the major assets prohibition thresholds set forth in EGRPRA do not reflect the growth and consolidation among U.S. depository organizations that has occurred in the intervening years and do not realistically reflect the size of large institutions today. For instance, based on regulatory reporting, total assets at depository organizations have grown by more than 250 percent between the fourth quarter of 1996 and the fourth quarter of 2018. Moreover, in a March 2017 report to Congress mandated by EGRPRA, the agencies stated that they intended to reduce regulatory burden by adjusting the major assets thresholds in the agencies' DIMIA regulations. 12

On January 31, 2019, the agencies published for comment a notice of proposed rulemaking (proposed rule or proposal) to amend the agencies' DIMIA regulations. 13 The proposed rule would have increased the major assets prohibition thresholds from $1.5 billion and $2.5 billion to $10 billion each. Alternatively, the proposed rule requested comment on three calibrations that would have increased the major assets prohibition thresholds based on market changes or inflation that had occurred during the period following the establishment of the thresholds. The proposed rule also described the procedures the agencies would use to increase the thresholds to reflect inflation in the future.

In response to the proposed rule, the agencies received six comment letters, 14 five of which were responsive. Four of the five comment letters expressed support for increasing the major assets prohibition thresholds, while the fifth comment letter, without expressing an opinion about the thresholds, suggested that the agencies use clear language and consider “the most recent developments for measuring market change.” Two of the five comment letters also included a suggestion that was outside the scope of the proposal—namely, that the agencies expand the number of exemptions from the definition of “management official.”

Two commenters specifically expressed support for the agencies' proposal to increase the major assets prohibition thresholds to $10 billion. One commenter noted that increasing the thresholds in such a manner would help community banks find qualified management officials, especially in rural areas. The second commenter supported the $10 billion thresholds but suggested that the agencies tie further, periodic threshold adjustments to an asset growth index, rather than to inflation. 15 The commenter suggested that such periodic adjustments could be made through a direct final rule without notice and comment.

Two commenters generally supported increasing the thresholds but provided alternatives to the proposal. One commenter suggested that the agencies adjust the thresholds based on a depository organization's share of total industry assets, centered on the growth of average assets per bank from 1996 to 2018. The second commenter suggested that the agencies adjust the thresholds based on asset growth and stated that Congress intended for DIMIA to have two separate thresholds, rather than a single, consistent threshold in order to make it more difficult for a larger depository organization to control a smaller depository organization. Both commenters suggested that their proposed alternative methods for adjusting the thresholds would better reflect the anticompetitive concerns embodied in DIMIA.

As explained in more detail in the following section, the agencies believe that the proposed $10 billion asset thresholds appropriately capture the anticompetitive risk that the major assets prohibition is intended to address by prohibiting interlocks between larger depository organizations while exempting smaller or community-banking-organization-sized depository organizations. A $10 billion asset threshold is consistent with thresholds that Congress and the agencies have used to distinguish between small institutions and larger institutions. Further, establishing identical asset threshold levels will enable depository organizations to ascertain more easily whether they may be subject to the major assets prohibition. DIMIA does not require the agencies to set the thresholds at two different levels, nor do the agencies believe that setting the thresholds at different levels would better serve the purpose of DIMIA's major assets prohibition. In consideration of these factors, the agencies believe increasing both asset thresholds to $10 billion is appropriate.

With regard to the suggestion that the agencies tie future threshold adjustments to an asset growth index, the agencies believe that changes to the methodology for future, periodic adjustments are outside the scope of this rulemaking, which requested comment on a one-time adjustment to the asset thresholds to account for market changes. The agencies have existing authority under DIMIA and the agencies' DIMIA regulations to make periodic, discretionary adjustments to the thresholds to account for inflation through direct final rules without notice and comment. 16 In the proposal, the agencies stated that, following adjustment of the thresholds by the proposed rule and consistent with existing authority, the agencies would make further adjustments to the thresholds to account for inflation by publishing a direct final rule without notice and comment. 17 The agencies noted that if further adjustments to the thresholds are warranted for reasons other than inflation, the agencies would propose another adjustment through a subsequent notice of proposed rulemaking and seek public comment on the proposal. 18 As a reference for future, periodic adjustments, the agencies believe that making future adjustments based on the inflation measure in the agencies' rules would be less volatile than making future adjustments based on asset growth and would be more appropriate for a recurring process.

Two commenters suggested that the agencies expand the current list of exemptions from the definition of “management official” contained in the agencies' rules. One of the commenters suggested that the agencies revise the definition to exempt management officials at non-depository affiliates and management officials of foreign affiliates. Another commenter suggested that the agencies exempt depository organizations' foreign affiliates that do not engage in business or activities in the United States.

The proposed rule did not contemplate changes to the definition of “management official,” and the agencies are not adopting the commenters' suggestions at this time; however, the agencies will consider incorporating these suggestions in a future revision to the agencies' rules.

After considering the comments received, the agencies are adopting without change the proposal to increase the major assets prohibition thresholds from $1.5 billion and $2.5 billion to $10 billion each. As finalized, the major assets prohibition will prohibit management interlocks between unaffiliated depository organizations with total assets exceeding $10 billion (or any affiliates of such organizations).

The final rule's increase to the major assets prohibition thresholds, and the application of the major assets prohibition to larger depository organizations rather than small depository organizations ( i.e., community banking organizations), is consistent with the purpose of the major assets prohibition of DIMIA. 19 A major assets prohibition with a $10 billion asset threshold will prohibit interlocks between larger depository organizations, which could present a risk of anticompetitive conduct at the level of the U.S. banking market, while exempting smaller or community-banking-organization-sized depository organizations, which generally operate in regional markets and do not present the same competitive risks to the broader U.S. banking market. 20

In addition, the final rule is consistent with the current thresholds that Congress and the agencies have used to distinguish between small institutions and larger institutions. For example, sections 201 and 203 of the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 provide certain burden relief for institutions with less than $10 billion in total consolidated assets. 21 Additionally, the Dodd-Frank Wall Street Reform and Consumer Protection Act uses a $10 billion threshold to distinguish between large banks subject to supervision by the Consumer Financial Protection Bureau and small banks subject to prudential regulator supervision. 22 A $10 billion threshold also is consistent with the asset threshold used by the Board to distinguish between community banking organizations and larger banking organizations for supervisory and regulatory purposes, 23 the asset threshold used by the FDIC to distinguish between “small” and “large” institutions for purposes of its deposit insurance assessment regulations, 24 and the asset threshold used by the OCC to distinguish community banks from midsize and large banks for supervisory purposes. 25 Further, having a single, consistent asset threshold will simplify the agencies' DIMIA regulations and enable depository organizations to identify more easily whether they may be subject to the major assets prohibition.

The final rule increases the number of depository organizations that would no longer be subject to the major assets prohibition and therefore reduces the number of institutions that need to seek an exemption from the major assets prohibition from the appropriate agency.

As of December 31, 2018, 981 depository organizations had total assets of more than $1.5 billion and were subject to the major assets prohibition. 26 In addition, 751 depository organizations with total assets of more than the $2.5 billion threshold were subject to restrictions on management interlocks with unaffiliated depository organizations with total assets exceeding the $1.5 billion threshold. Raising the $1.5 billion asset threshold to $10 billion would exempt 672 depository organizations from the major assets prohibition as of December 31, 2018. As of December 31, 2018, 309 depository organizations reported total assets greater than $10 billion and would remain subject to the major assets prohibition.

The agencies are issuing the final rule without the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA). 27 Pursuant to section 553(d) of the APA, the required publication of a substantive rule shall be made not less than 30 days before its effective date, except for, among other things, “a substantive rule which grants or recognizes an exemption or relieves a restriction.”  28

The final rule increases the asset thresholds for the major assets prohibition, which will increase the number of depository organizations that are no longer subject to the prohibition and therefore reduce the number of depository organizations that will need to seek an exemption from the prohibition. The effect of the final rule will be to relieve certain depository organizations from the restrictions of the DIMIA major assets prohibition. Accordingly, the agencies are issuing the final rule with an immediate effective date.

Section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRI) requires that each Federal banking agency, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on depository institutions, consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. Section 302(b) requires that new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on depository institutions generally shall take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form, subject to certain exceptions that are not relevant here.

The final rule does not impose additional reporting, disclosure, or other requirements on depository institutions, including small depository institutions or customers of depository institutions; therefore, section 302 of CDRI does not apply. The agencies note, however, that in determining the effective date and administrative compliance requirements for this final rule, they considered the administrative burdens and benefits of the rule, including that the rule reduces burden on the depository organizations to which it applies.

Certain provisions of the final rule contain a “collection of information” within the meaning of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). In accordance with the requirements of the PRA, the agencies may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control number for the OCC is 1557-0014; and the FDIC's is 3064-0118. These information collections will be extended for three years, with revision. Although the Board has previously included these collections of information under OMB control number 7100-0134, the collections of information are not currently cleared under the PRA. Therefore, the Board is implementing a new collection of information in connection with this final rule. The agencies did not receive any specific comments on the PRA. The information collection requirements contained in the proposed rulemaking were submitted by the OCC and FDIC to OMB under section 3507(d) of the PRA (44 U.S.C. 3507(d)) and section 1320.11 of the OMB's implementing regulations (5 CFR part 1320). OMB filed a comment in response to the submissions, instructing the OCC and FDIC to resubmit at the final rule stage and discuss the reason for any increase in burden. The OCC and FDIC have resubmitted the information collection requirements to OMB in connection with the final rule. The Board reviewed the final rule under the authority delegated to the Board by OMB. The FDIC's and OCC's burden increased slightly through an effort to conform its burden estimates to those of the other agencies. In addition, the agencies have increased their estimates for the burden associated with recordkeeping from the initial proposal to reflect the fact that the number of respondents that may engage in recordkeeping would not be decreased by the final rule. Additionally, the agencies have removed from their burden table estimates references to 12 CFR 26.6(b) (OCC); 12 CFR 212.6(b) and 238.96(b) (Board); and 12 CFR 248.6(b) (FDIC), as those sections do not contain an information collection. This change has not impacted the estimated burden calculation.

OMB control number: 1557-0014.

Estimated number of respondents: 2.

Estimated average hours per response:

Reporting Sections 26.4(h)(1)(i)-4.

Recordkeeping Section 26.5(b)-3.

Estimated annual burden hours: 14.

OMB control number: 7100-NEW (The current management official interlocks reporting and recordkeeping requirements are housed under OMB control number 7100-0134 and will be separated out in a new OMB control number).

Estimated number of respondents: 4 for reporting requirements and 8 for recordkeeping requirements.

Estimated average hours per response:

Reporting Sections 212.4(h)(1)(i) and 238.94(h)(1)(i)-4.

Recordkeeping Section 212.5(b) and 238.95(b)-3.

Estimated annual burden hours: 40.

OMB control number: 3064-0118.

Estimated number of respondents: 6.

Estimated average hours per response:

Reporting Sections 348.4(h)(1)(i)-4.

Recordkeeping Section 348.5(b)-3.

Estimated annual burden hours: 42.

The Regulatory Flexibility Act  29 (RFA) requires an agency either to provide a final regulatory flexibility analysis with a final rule for which general notice of proposed rulemaking is required or to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration (SBA) establishes size standards that define which entities are small businesses for purposes of the RFA. 30 Under regulations issued by the SBA, the size standard to be considered a small business for banking entities subject to the proposed rule is $600 million or less in consolidated assets. 31 Under 5 U.S.C. 605(b), this analysis is not required if an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a brief explanatory statement in the Federal Register along with its rule.

OCC: The OCC currently supervises approximately 782 small entities. 32 Currently, the major assets prohibition of DIMIA prevents a management official of a depository organization with total assets exceeding $2.5 billion (depository organization threshold) or any affiliate of such organization from serving as a management official of an unaffiliated depository organization with total assets exceeding $1.5 billion (unaffiliated organization threshold). This final rule will increase both thresholds to $10 billion in assets, which will only impact banking organizations with total consolidated assets between the current thresholds of $1.5 billion and $2.5 billion and the new threshold of $10 billion. No OCC-regulated small entities are impacted by these changes. Additionally, the changes in this final rule do not impose any new reporting, recordkeeping, or other compliance requirements. For these reasons, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

Board: In accordance with section 603(a) of the RFA, 33 the Board published an Initial Regulatory Flexibility Analysis (IFRA) with the proposal. 34 The Board solicited comment on the effect of the proposal on small entities. The Board did not receive any comment on the IFRA.

The RFA requires an agency to prepare a final regulatory flexibility analysis (FRFA) unless the agency certifies that the rule will not, if promulgated, have a significant impact on a substantial number of small entities. The FRFA must contain: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the IRFA, a statement of the agency's assessment of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the SBA in response to the proposed rule, and a detailed statement of any changes made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities, including a statement for selecting or rejecting the other significant alternatives to the rule considered by the agency.

1. Statement of the need for, and objectives of, the final rule.

As discussed in the Supplementary Information, the final rule increases the major assets prohibition thresholds for management interlocks in the Board's rules implementing DIMIA. Under the current major assets prohibition, a management official of a depository organization with total assets exceeding $2.5 billion (or any affiliate of such an organization) is prohibited from serving at the same time as a management official of an unaffiliated depository organization with total assets exceeding $1.5 billion (or any affiliate of such an organization), regardless of the location of the two depository organizations. For these purposes, the term “depository organization” means a depository institution or a depository holding company. “Depository institution” means a commercial bank (including a private bank), a savings bank, a trust company, a savings and loan association, a building and loan association, a homestead association, a cooperative bank, an industrial bank, or a credit union, chartered under the laws of the United States and having a principal office located in the United States. Additionally, a United States office, including a branch or agency, of a foreign commercial bank is a depository institution. “Depository holding company” means a bank holding company or a savings and loan holding company (as more fully defined in section 202 of DIMIA) having its principal office located in the United States. 35 As discussed above, the Board's objective in issuing this rule is to reduce the number of depository organizations subject to the major assets prohibition. The Board has authority under DIMIA to prescribe regulations necessary to carry out DIMIA with respect to state banks that are members of the Federal Reserve System, bank holding companies, and savings and loan holding companies. 36

2. A discussion of the significant issues raised by public comments in response to the IRFA, and the Board's response to any comments filed by the Chief Counsel for Advocacy of the SBA in response to the proposed rule.

The Board did not receive any comments on the IRFA that it published in connection with the proposal. In addition, the Chief Counsel for Advocacy of the SBA did not file any comments in response to the proposal. Accordingly, no changes were made to the proposal as a result of RFA-related comments.

3. Description and estimate of the number of entities to which the rule will apply.

The rule applies to state member banks, bank holding companies, and savings and loan holding companies having their principal offices in the United States. Under regulations issued by the SBA, a small entity includes a state member bank, bank holding company, or savings and loan holding company with total assets of $600 million or less and trust companies with total assets of $41.5 million or less. 37 On average since the second quarter of 2018, there were approximately 2,976 small bank holding companies, 133 small savings and loan holding companies, and 70 small state member banks. The rule increases the total asset level at which depository organizations and their affiliates become subject to the major assets prohibition from $1.5 billion and $2.5 billion to $10 billion and $10 billion, respectively.

4. Description of the projected reporting, recordkeeping, and other compliance requirements of the rule.

The changes to the major assets prohibition do not impose any new reporting, recordkeeping, and other compliance requirements.

5. Description of the steps take to minimize any significant economic impact on small entities.

Based on its analysis and for the reasons stated above, the Board believes that this final rule will not have a significant economic impact on a substantial number of small entities.

FDIC: The Regulatory Flexibility Act (RFA) generally requires that, in connection with a final rule, an agency prepare and make available for public comment a final regulatory flexibility analysis describing the impact of the rulemaking on small entities. 38 A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) has defined “small entities” to include banking organizations with total assets less than or equal to $600 million. 39 Generally, the FDIC considers a significant effect to be a quantified effect in excess of 5 percent of total annual salaries and benefits per institution, or 2.5 percent of total non-interest expenses. The FDIC believes that effects in excess of these thresholds typically represent significant effects for FDIC-supervised institutions. The FDIC supervises 3,489 depository institutions, 40 of which 2,741 are defined as small banking entities by the terms of the RFA. 41

The final rule only affects institutions with total consolidated assets between the current thresholds of $1.5 billion and $2.5 billion and the new threshold of $10 billion. Therefore, the final rule will likely affect zero small entities.

Accordingly, the FDIC believes that the final rule will not have a significant impact on a substantial number of small entities. For the reasons described above and pursuant to 5 U.S.C. 605(b), the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

The OCC analyzed the final rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). Under this analysis, the OCC considered whether the proposed rule includes 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 in any one year (adjusted for inflation). The final rule will relieve burden and will not impose any new mandates. Therefore, the OCC concludes that the proposed rule will not result in an expenditure of $100 million or more annually by state, local, and tribal governments or by the private sector.

Section 722 of the Gramm-Leach-Bliley Act requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The agencies received one comment that generally suggested that the agencies use clear language in this final rule. The agencies believe the final rule is presented in a simple and straightforward manner. Accordingly, the agencies are issuing the final rule without change.

Pursuant to the Congressional Review Act, the Office of Management and Budget's Office of Information and Regulatory Affairs designated this rule as not a “major rule,” as defined at 5 U.S.C. 804(2).

For the reasons stated in the preamble, the OCC amends 12 CFR part 26, the Board amends 12 CFR parts 212 and 238, and the FDIC amends 12 CFR part 348 as follows:

I. Background

Section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act), 1 as initially enacted, required a national bank or Federal savings association (FSA) (collectively, banks) with total consolidated assets of more than $10 billion to conduct an annual stress test. Section 165(i)(2)(B) required these banks to provide a report to the Office of the Comptroller of the Currency (OCC) at such time, in such form, and containing such information as the OCC may require. 2 In addition, section 165(i)(2)(C) required the OCC to issue regulations that establish methodologies for banks conducting their stress test and required the methodologies to include at least three different stress testing scenarios: “baseline,” “adverse,” and “severely adverse.”  3

In October 2012, the OCC published in the Federal Register its rule implementing the Dodd-Frank Act stress testing requirement (stress testing rule). 4 The OCC's stress testing rule established two subgroups for covered institutions—“$10 to $50 billion covered institutions” and “$50 billion or over covered institutions”—and subjected the two subgroups to different stress test requirements and deadlines for reporting and disclosures. In February 2018, the OCC published a second rulemaking to implement additional technical and conforming changes to the OCC's stress testing rule. 5

The Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA), enacted on May 24, 2018, amends certain aspects of the company-run stress testing requirement in section 165(i)(2) of the Dodd-Frank Act. 6 Specifically, section 401 of EGRRCPA raises the minimum asset threshold for financial companies covered by the company-run stress testing requirement from $10 billion to $250 billion in total consolidated assets; revises the requirement that financial companies conduct stress tests on an “annual” basis and instead requires them to be “periodic”; and no longer requires the OCC to provide an “adverse” stress-testing scenario, thus reducing the number of required stress test scenarios from three to two. The amendments made by section 401 of EGRRCPA applicable to depository institutions are effective on November 24, 2019.

On February 12, 2019, consistent with section 401 of EGRRCPA, the OCC published a notice of proposed rulemaking (proposed rule or proposal) in the Federal Register to amend the stress testing rule. 7 The proposed rule would have revised the minimum threshold for banks to conduct stress tests from $10 billion to $250 billion, revised the frequency by which certain banks would be required to conduct stress tests from annual to biennial, and reduced the number of required stress testing scenarios from three to two by eliminating the requirement for an adverse scenario. The proposed rule would also have made certain additional technical and facilitating changes to the stress testing rule.

In response to the proposed rule, the OCC received two substantive comment letters. The OCC appreciates the concerns raised by these comments but, for the reasons described below, the OCC does not believe that they warrant changes to the proposal.

The first commenter requested that the OCC immediately eliminate stress testing requirements that would no longer be in effect upon finalization of the proposal or that are not appropriate for any firm of any size. In particular, this commenter argued that the OCC should immediately eliminate the adverse scenario from the scenarios required for purposes of the 2019 stress test. The EGRRCPA amendments to the stress testing requirements will become effective on November 24, 2019. While EGRRCPA specifically provided an immediate effective date for bank holding companies with total consolidated assets of less than $100,000,000,000, it did not provide immediate relief for banks that have consolidated assets above the threshold or that meet certain other specified criteria. Accordingly, the OCC did not consider it appropriate to eliminate this requirement from the 2019 stress tests. The stress test scenarios for the 2019 Dodd-Frank Act stress tests were issued in February 2019.

The second commenter argued that the OCC should not reduce the frequency of Dodd-Frank Act stress testing from annual to biennial for any subset of banks. The OCC believes, based on its experience overseeing and reviewing the results of company-run stress testing, that biennial stress testing is appropriate under most conditions for a bank not consolidated under a holding company that is required to conduct a stress test annually. For these covered institutions, the OCC expects a biennial stress test to provide the OCC and the covered institution with information that is sufficient to satisfy the purposes of stress testing, including assisting in an overall assessment of a covered institution's capital adequacy, identifying risks and the potential impact of adverse financial and economic conditions on the covered institution's capital adequacy, and determining whether additional analytical techniques and exercises are appropriate for a covered institution to employ in identifying, measuring, and monitoring risks to the soundness of the covered institution. As described further below, the OCC believes that annual stress testing is appropriate only for depository institution subsidiaries of the largest and most complex banking organizations. In addition, the OCC will continue to review the covered intuition's stress testing processes and procedures.

In the event of a sudden, material change in bank or market conditions or forecasts, the OCC retains its ability to require more frequent stress testing, pursuant to its reservation of authority under the OCC's stress testing rule. 8

The OCC is adopting the proposed revisions to the OCC's stress testing rule without change. These revisions are described in more detail below.

As described above, section 401 of EGRRCPA amends section 165 of the Dodd-Frank Act by raising the minimum asset threshold for banks required to conduct stress tests from $10 billion to $250 billion. The final rule implements this change by eliminating the two existing subcategories of “covered institution”—“$10 to $50 billion covered institution” and “$50 billion or over covered institution”—and revising the term “covered institution” to mean a national bank or FSA with average total consolidated assets greater than $250 billion. In addition, the final rule makes certain technical changes to the rule in order to consolidate requirements that were applied differently to “$10 to $50 billion covered institutions” and “$50 billion or over covered institutions.”

EGRRCPA eliminates the requirement under section 165 of the Dodd-Frank Act for covered institutions to conduct stress tests on an “annual” basis and, instead, requires that they be “periodic.” The term “periodic” is not defined in EGRRCPA. The final rule requires that, in general, a covered institution will be required to conduct, report, and publish a stress test once every two years, beginning on January 1, 2020, and continuing every even-numbered year thereafter ( i.e., 2022, 2024, 2026, etc.). However, a covered institution that is consolidated under a holding company that is required to conduct a stress test at least once every calendar year (pursuant to regulations of the Board of Governors of the Federal Reserve System (the Board)) will be required to conduct, report, and publish its stress test annually. The final rule adds a new defined term, “reporting year,” to the definitions at § 46.2. A covered institution's reporting year is the year in which a covered institution must conduct, report, and publish its stress test.

Subsequent to these changes, covered institutions may be subject to either a biennial reporting year (biennial stress testing covered institutions) or an annual reporting year (annual stress testing covered institutions). In either case, the dates and deadlines in the OCC's stress testing rule would be interpreted relative to the covered institution's reporting year. For example, if a biennial stress testing covered institution is preparing a stress test for the 2022 reporting year, the covered institution would rely on financial data available as of December 31, 2021; use stress test scenarios that would be provided by the OCC no later than February 15, 2022; provide its report of the results of the stress test to the OCC by April 5, 2022; and publish a summary of the results of the stress test in the period starting June 15 and ending July 15 of 2022.

Under the final rule, all biennial stress testing covered institutions will be required to conduct stress tests in the same reporting year. By requiring these covered institutions to conduct their stress tests in the same year, the final rule will allow the OCC to continue to make comparisons across banks for supervisory purposes and assess macroeconomic trends and risks to the banking industry.

Certain covered institutions will be required to conduct annual stress tests under the final rule. This subset is limited to covered institutions that are consolidated under holding companies that are required to conduct stress tests more frequently than once every other year. This treatment aligns with the OCC's, Board's, and FDIC's long-standing policy of applying similar standards to holding companies and their subsidiary banks. It also reflects the OCC's expectation that covered institutions that will be required to stress test on an annual basis are subsidiaries of the largest and most systemically important holding companies.

On November 29, 2018, the Board published a proposed rule that would establish four risk-based categories of standards for large holding companies to determine the application of prudential standards, including stress testing. 9 Holding companies subject to Category I or Category II standards would be required to conduct annual company-run stress tests while holding companies subject to Category III standards would be required to conduct biennial company-run stress tests. 10 (Holding companies with less than $250 billion in consolidated assets, including those subject to Category IV standards, would not be required to stress test.) Because the OCC's final stress testing rule would require a covered institution to conduct stress tests annually if its parent holding company is required, under Board regulations, to conduct stress tests annually, the OCC's stress testing regulation would adopt by reference any potential changes to stress testing frequency in the Board's regulations, including from the Board's proposed rule.

Section 165(i)(2)(C) of the Dodd-Frank Act required the OCC to establish methodologies for covered institutions conducting a stress test and requires the methodologies to include at least three different stress testing scenarios: “baseline,” “adverse,” and “severely adverse.” Subsequently, EGRRCPA amended section 165 to no longer require the OCC to include an “adverse” stress-testing scenario. Accordingly, the final rule removes references to the “adverse” stress test scenario in the OCC's stress testing rule. In the OCC's experience, the “adverse” stress-testing scenario has provided limited incremental information to the OCC and market participants beyond what the “baseline” and “severely adverse” stress testing scenarios provide. The final rule maintains the requirement for the OCC to conduct supervisory stress tests under both a “baseline” and “severely adverse” stress-testing scenario.

Section 46.3 of the OCC's stress testing rule provides a transition period between when a bank becomes a covered institution and when the bank must report the results of its first stress test. The final rule amends the transition period in § 46.3(b) to conform to the other changes in this rulemaking, including the establishment of annual and biennial stress testing covered institutions. Under the final rule, a bank that becomes a covered institution will be required to conduct its first stress test under the stress testing rule in the first reporting year that begins more than three calendar quarters after the date the bank becomes a covered institution, unless otherwise determined by the OCC in writing. For example, if a covered institution that conducts stress tests on a biennial basis becomes a covered institution on March 31 of a non-reporting year ( e.g., 2023), the bank must report the results of its first stress test in the subsequent calendar year ( i.e., 2024), which is its first reporting year. If the same bank becomes a covered institution on April 1 of a non-reporting year, it skips the subsequent calendar year and reports the results of its first stress test in the next reporting year ( i.e., 2026). As with other aspects of the stress testing rule, the OCC may change the transition period for particular covered institutions, as appropriate in light of the nature and level of the activities, complexity, risks, operations, and regulatory capital of the covered institutions, in addition to any other relevant factors.

The final rule does not include a transition period for a covered institution that moves from a biennial stress testing requirement to an annual stress testing requirement. Accordingly, a covered institution that becomes an annual stress testing covered institution is required to begin stress testing annually as of the next reporting year. The OCC expects covered institutions to anticipate and make arrangements for this development. To the extent that particular circumstances warrant the extension of a transition period, the OCC can extend one based on its reservation of authority and supervisory discretion.

Section 46.6 of the stress testing rule required the board of directors of a covered institution, or a committee thereof, to review and approve the covered institution's stress testing policies and procedures as frequently as economic conditions or the condition of the institution may warrant, but no less than annually. The final rule revises the frequency of this requirement from “annual” to “once every reporting year” in order to align review by the board of directors with the covered institution's stress testing cycle.

Section 46.4 of the stress testing rule states the OCC's reservation of the authority, pursuant to which the OCC may revise the frequency and methodology of the stress testing requirement as appropriate for particular covered institutions. The final rule clarifies the OCC's reservation of authority by providing that the OCC may exempt a covered institution from the requirement to conduct a stress test in a particular reporting year.

The final rule removes certain transition language that was present in the stress testing rule and that is no longer current. For example, the final rule strikes the following sentence from paragraph (a)(2) of § 46.6: “Until December 31, 2015, or such other date specified by the OCC, a covered institution is not required to calculate its risk-based capital requirements using the internal ratings-based and advanced measurement approaches as set forth in 12 CFR part 3, subpart E.”

The RCDRIA requires that the OCC, in determining the effective date and administrative compliance requirements of new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (“IDIs”), consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. 11 In addition, in order to provide an adequate transition period, new regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally must take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. 12

The final rule imposes no additional reporting, disclosure, or other requirements on IDIs, including small depository institutions, nor on the customers of depository institutions. The final rule reduces the frequency of company-run stress tests for a subset of banks, raises the threshold for covered institutions from $10 billion to $250 billion, reduces the number of required stress test scenarios from three to two for all banks, and makes technical changes that do not substantively IDIs or their customers. Accordingly, the RCDRIA does not apply to the final rule.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (“RFA”), requires an agency, in connection with a final rule, to prepare a final Regulatory Flexibility Analysis describing the impact of the final rule on small entities (defined by the Small Business Administration (“SBA”) for purposes of the RFA to include banking entities with total assets of $600 million or less) or to certify that the final rule would not have a significant economic impact on a substantial number of small entities.

The OCC currently supervises approximately 782 small entities. 13 Because the final rule only applies to banking organizations with total consolidated assets greater than $10 billion, it will not impact any OCC-supervised small entities. Therefore, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The information collection requirements in the final rule are found in §§ 46.6 through 46.8. The OCC submitted the information collection requirements to OMB at the proposed rule stage (OMB Control No. 1557-0343). OMB filed a comment requesting that the OCC examine public comment in response to the proposed rule and include in the supporting statement of the submission to OMB at the final rule stage a description of how the agency has responded to any public comments on the information collection, including comments on maximizing the practical utility of the collection and minimizing the burden. The OCC did not receive any comments on the information collection requirements contained in the proposed rule and the OCC has resubmitted them to OMB in connection with the final rule.

Section 46.6(c) of the OCC's stress testing rule, as revised by this final rule, requires that each covered institution establish and maintain a system of controls, oversight, and documentation, including policies and procedures, describing the covered institution's stress test practices and methodologies, and processes for validating and updating the covered institution's stress test practices. The stress testing rule requires the board of directors of a covered institution to approve and review these policies at least annually. Section 46.7(a) requires each covered institution to report the results of their stress tests to the OCC annually. Section 46.8(a) requires that a covered institution publish a summary of the results of its annual stress tests on its website or in any other forum that is reasonably accessible to the public.

The increase in the applicability threshold effected by this final rule will reduce the estimated number of respondents for these requirements. In addition, the final rule decreases the frequency of these reporting, recordkeeping, and disclosure requirements for some institutions to once every other year.

Title of the Collection: Stress Testing Rules for National Banks and Federal Savings Associations.

Frequency of Response: Annual/biennial.

Affected Public: National banks and federal savings associations.

Type of Review: Regular.

Estimated number of respondents: 8 (biennial testing: 4; annual testing: 4).

Estimated total annual burden: 6,240 hours.

The OCC analyzed the final rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532). Under this analysis, the OCC considered whether the final rule includes 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 in any one year, adjusted annually for inflation. The OCC has determined that there are no expenditures for the purposes of UMRA. Therefore, the OCC concludes that the final rule will not result in an expenditure of $100 million or more annually by state, local, and tribal governments, or by the private sector.

Section 722 of the Gramm-Leach-Bliley Act requires the OCC to use plain language in all proposed and final rules published after January 1, 2000. At the rule proposal stage, the OCC invited comment on how to make this rule easier to understand. No comments responsive to this issue were received.

Pursuant to the Congressional Review Act, the Office of Management and Budget's Office of Information and Regulatory Affairs designated this rule as not a “major rule,” as defined at 5 U.S.C. 804(2).

For the reasons stated in the preamble, the OCC amends 12 CFR part 46 as follows:

Reason for No Prior Notice and Comment Before Adoption

The FAA has determined, in accordance with 5 U.S. Code 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because substantially identical special conditions have been subject to the public comment process in several prior instances such that the FAA is satisfied that new comments are unlikely. For the same reason, the FAA finds that good cause exists for making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.

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

The FAA will consider all comments received on or before the closing date for comments. The FAA will consider comments filed late if it is possible to do so without incurring expense or delay. The FAA may change these special conditions based on the comments received.

On November 16, 2018, Diamond Aircraft Industries of Canada (DAI-Canada) applied for FAA validation for a new type certificate for its Model DA-62 airplane. The Model DA-62 is a normal category, composite, 6 place (excluding pilots seats), twin-engine airplane with retractable gear, cantilevered low-wing and T-tail monoplane, and a maximum takeoff weight of 4,407 pounds. The airplane is powered by two Austro Engine GmbH E4P aircraft diesel engines (E4P), which are type certificated in the United States (TC No. E00081EN).

The DAI-Canada Model DA-62 is the same design as the Diamond Aircraft Industries GmbH Model DA62, a normal category airplane type certificated under the airworthiness standards listed in Type Certificate Data Sheet (TCDS) No. A57CE. The FAA issued special conditions to the Diamond Aircraft Industries GmbH Model DA-42 (Special Condition No. 23-169-SC) under TCDS No. A57CE  3 and later applied them to the Model DA-62, a derivative model that was added to the TCDS later. DAI-Canada plans to produce the Model DA-62 under a new type certificate (TC A00012NY); therefore, the FAA is issuing the same special conditions for the DAI-Canada Model DA-62.

Expecting the reintroduction of diesel engine technology into the small airplane fleet, the FAA issued Policy Statement PS-ACE100-2002-004, Final Policy Statement; Diesel Engine Installation, on May 15, 2004, 4 which identified areas of technological concern introduction of new technology diesel engines into small airplanes.

The general areas of concern involved the power characteristics of the diesel engines, the use of turbine fuel in an airplane class that has typically been powered by gasoline-fueled engines, and the vibration characteristics and failure modes of diesel engines. These concerns were identified after a review of the record of diesel engine use in airplanes and a review of the part 23 regulations, which identified specific regulatory areas that needed to be evaluated for applicability to aircraft diesel engine installations. These concerns are not considered universally applicable to all types of aircraft diesel engines and diesel engine installations. However, after review of the DAI Canada installation, the E4P engine type and the E4P requirements, and after applying the guidance in PS-ACE100-2002-004, the FAA has determined the fuel system and engine related special conditions previously issued in Special Condition No. 23-169-SC on Diamond Aircraft Industries GmbH Models DA 42, DA 42 NG, DA 42 M-NG, and DA62 airplanes are necessary for the DAI-Canada Model DA-62 airplane.

Under the provisions of 14 CFR 21.17, DAI-Canada must show that the Model DA-62 meets the applicable provisions of 14 CFR part 23, as amended by amendments 23-1 through 23-62 thereto.

If the Administrator finds that the applicable airworthiness regulations in part 23 do not contain adequate or appropriate safety standards for the Model DA-62 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the FAA would apply these special conditions to the other model.

In addition to the applicable airworthiness regulations and special conditions, the Model DA-62 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36; and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The Model DA-62 will incorporate the following novel or unusual design feature: Installation of aircraft diesel engines that use turbine (jet) fuel.

The major concerns with diesel engine installations identified by the FAA include installing the diesel engine and noting its vibration levels under both normal operating conditions and when one cylinder is inoperative. The concerns also include accommodating turbine fuels in airplane systems that have generally evolved based on gasoline requirements, anticipated use of a FADEC to control the engine, and appropriate limitations and indications for a diesel engine powered airplane. The general concerns associated with the aircraft diesel engine installation are as follows:

Installation and Vibration Requirements: These special conditions include requirements similar to the requirements of § 23.901(d)(1) for turbine engines. In addition to the requirements of § 23.901 applied to reciprocating engines, the applicant will be required to construct and arrange each diesel engine installation to result in vibration characteristics that do not exceed those established during the type certification of the engine. These vibration levels must not exceed vibration characteristics that a previously certificated airframe structure has been approved for, unless such vibration characteristics are shown to have no effect on safety or continued airworthiness. The engine limit torque design requirements as specified in § 23.361 are also modified.

An additional requirement to consider vibration levels and/or effects of an inoperative cylinder was imposed. Also, a requirement to evaluate the engine design for the possibility of, or effect of, liberating high-energy engine fragments, in the event of a catastrophic engine failure was added.

Fuel and Fuel System Related Requirements: Due to the use of turbine fuel, this airplane must comply with the requirements in § 23.951(c).

Section 23.961 will be complied with using the turbine fuel requirements. These requirements will be substantiated by flight-testing as described in Advisory Circular AC 23-8C, Flight Test Guide for Certification of Part 23 Airplanes.

This special condition specifically requires testing to show compliance with § 23.961 and adds the possibility of testing non-aviation diesel fuels.

To ensure fuel system compatibility and reduce the possibility of misfueling, and discounting the first clause of § 23.973(f) referring to turbine engines, the applicant will comply with § 23.973(f).

Due to the use of turbine fuel, the applicant will comply with § 23.977(a)(2), and § 23.977(a)(1) will not apply. “Turbine engines” will be interpreted to mean “aircraft diesel engines” for this requirement. An additional requirement to consider the possibility of fuel freezing was imposed.

Due to the use of turbine fuel, the applicant will comply with § 23.1305(c)(8).

Due to the use of turbine fuel, the applicant must comply with § 23.1557(c)(1)(ii). Section 23.1557(c)(1)(ii) will not apply. “Turbine engine” is interpreted to mean “aircraft diesel engine” for this requirement.

FADEC and Electrical System Requirements: The electrical system must comply with the following:

• In case of failure of one power supply of the electrical system, there will be no significant engine power change. The electrical power supply to the FADEC must remain stable in such a failure.

• The transition from the actual engine electrical network (FADEC) to the remaining electrical system with the consumer's, avionics, communication, etc., should be made by a single point only. If several transitions ( e.g., for redundancy reasons) are needed, then the number of the transitions must be kept as small as possible.

• There must be the ability to separate the FADEC power supply (alternator) from the battery and from the remaining electrical system.

• In case of loss of alternator power, the installation must guarantee that the battery will provide the power for an appropriate time after appropriate warning to the pilot.

• FADEC, alternator, and battery must be interconnected in an appropriate way so, in case of loss of battery power, the supply of the FADEC is guaranteed by the alternator.

Section 23.1305(a) and (b)(2) will apply, except that propeller revolutions per minute (RPM) will be displayed. Section 23.1305(b)(4), (5), and (7) are deleted.

Additional critical engine parameters for this installation that will be displayed include—

(1) Power setting, in percentage (in place of manifold pressure); and

(2) Fuel temperature.

Due to the use of turbine fuel, the requirements for § 23.1521(d), as applicable to fuel designation for turbine engines, will apply.

As discussed above, these special conditions are applicable to the DAI-Canada Model DA-62. Should DAI-Canada apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.

This action affects only certain novel or unusual design features on the Model DA-62 airplane. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Diamond Aircraft Industries of Canada Model DA-62 airplanes.

1. Engine torque (Provisions similar to § 23.361, paragraphs (b)(1) and (c)(3)):

a. For diesel engine installations, the engine mounts and supporting structure must be designed to withstand the following:

(1) A limit engine torque load imposed by sudden engine stoppage due to malfunction or structural failure.

(a) The effects of sudden engine stoppage may alternatively be mitigated to an acceptable level by utilization of isolators, dampers clutches, and similar provisions, so unacceptable load levels are not imposed on the previously certificated structure.

b. The limit engine torque to be considered under § 23.361(a) must be obtained by multiplying the mean torque by a factor of four for diesel cycle engines.

(1) If a factor of less than four is used, it must be shown that the limit torque imposed on the engine mount is consistent with the provisions of § 23.361(c). In other words, it must be shown that the use of the factors listed in § 23.361(c)(3) will result in limit torques on the mount that are equivalent to or less than those imposed by a conventional gasoline reciprocating engine.

2. Powerplant—Installation (Provisions similar to § 23.901(d)(1) for turbine engines):

Considering the vibration characteristics of diesel engines, the applicant must comply with the following:

a. Each diesel engine installation must be constructed and arranged to result in vibration characteristics that—

(1) Do not exceed those established during the type certification of the engine; and

(2) Do not exceed vibration characteristics that a previously certificated airframe structure has been approved for—

(i) Unless such vibration characteristics are shown to have no effect on safety or continued airworthiness, or

(ii) Unless mitigated to an acceptable level by utilization of isolators, dampers clutches, and similar provisions, so that unacceptable vibration levels are not imposed on the previously certificated structure.

3. Powerplant—Fuel System—Fuel system with water saturated fuel (Compliance with § 23.951 requirements):

Considering the fuel types used by diesel engines, the applicant must comply with the following:

a. Each fuel system for a diesel engine must be capable of sustained operation throughout its flow and pressure range with fuel initially saturated with water at 80 °F and having 0.75cc of free water per gallon added and cooled to the most critical condition for icing likely to be encountered in operation.

b. Methods of compliance that are acceptable for turbine engine fuel systems requirements of § 23.951(c) are also considered acceptable for this requirement.

4. Powerplant—Fuel System—Fuel system hot weather operation (Compliance with § 23.961 requirements):

In place of compliance with § 23.961, the applicant must comply with the following:

a. Each fuel system must be free from vapor lock when using fuel at its critical temperature, with respect to vapor formation, when operating the airplane in all critical operating and environmental conditions for which approval is requested. For turbine fuel, or for aircraft equipped with diesel cycle engines that use turbine or diesel type fuels, the initial temperature must be 110 °F, −0°, +5°, or the maximum outside air temperature for which approval is requested, whichever is the most critical.

b. The fuel system must be in an operational configuration that will yield the most adverse, that is, conservative results.

c. To comply with this requirement, the applicant must use the turbine fuel requirements and must substantiate these by flight-testing, as described in Advisory Circular AC 23-8C, Flight Test Guide for Certification of Part 23 Airplanes.

5. Powerplant—Fuel system—Fuel tank filler connection (Compliance with § 23.973(f) requirements):

In place of compliance with § 23.973(e) and (f), the applicant must comply with the following:

For airplanes that operate on turbine or diesel type fuels, the inside diameter of the fuel filler opening must be no smaller than 2.95 inches.

6. Powerplant—Fuel system—Fuel tank outlet (Compliance with § 23.977 requirements):

In place of compliance with § 23.977(a)(1) and (2), the applicant will comply with the following:

There must be a fuel strainer for the fuel tank outlet or for the booster pump. This strainer must, for diesel engine powered airplanes, prevent the passage of any object that could restrict fuel flow or damage any fuel system component.

7. Powerplant—Powerplant Controls and Accessories—Engine ignition systems (Compliance with § 23.1165 requirements):

Considering that the FADEC provides the same function as an ignition system for this diesel engine, in place of compliance with § 23.1165, the applicant will comply with the following:

a. The electrical system must comply with the following requirements:

(1) In case of failure of one power supply of the electrical system, there will be no significant engine power change. The electrical power supply to the FADEC must remain stable in such a failure.

(2) The transition from the actual engine electrical network (FADEC network) to the remaining electrical system should be made at a single point only. If several transitions (for example, redundancy reasons) are needed, then the number of the transitions must be kept as small as possible.

(3) There must be the ability to separate the FADEC power supply (alternator) from the battery and from the remaining electrical system.

(4) In case of loss of alternator power, the installation must guarantee the battery will provide the power for an appropriate time after appropriate warning to the pilot. This period must be at least 30 minutes required, 60 minutes desired.

(5) FADEC, alternator, and battery must be interconnected in an appropriate way so, in case of loss of battery power, the supply of the FADEC is guaranteed by the alternator.

8. Equipment—General—Powerplant Instruments (Compliance with § 23.1305 requirements):

a. In place of compliance with § 23.1305, the applicant will comply with the following:

(1) The following are required powerplant instruments:

(a) A fuel quantity indicator for each fuel tank, installed in accordance with § 23.1337(b).

(b) An oil pressure indicator.

(c) An oil temperature indicator.

(d) A tachometer indicating propeller speed.

(e) A coolant temperature indicator.

(f) An indicating means for the fuel strainer or filter required by § 23.997 to indicate the occurrence of contamination of the strainer or filter before it reaches the capacity established in accordance with § 23.997(d).

1. No indicator is required if the engine can operate normally for a specified period with the fuel strainer exposed to the maximum fuel contamination as specified in MIL-5007D and provisions for replacing the fuel filter at this specified period (or a shorter period) are included in the maintenance schedule for the engine installation.

(g) Power setting, in percentage.

(h) Fuel temperature.

(i) Fuel flow (engine fuel consumption).

9. Operating Limitations and Information—Powerplant limitations—Fuel grade or designation (Compliance with § 23.1521(d) requirements):

Instead of compliance with § 23.1521(d), the applicant must comply with the following:

The minimum fuel designation (for diesel engines) must be established so it is not less than that required for the operation of the engines within the limitations in paragraphs (b) and (c) of § 23.1521.

10. Markings and Placards—Miscellaneous markings and placards—Fuel, oil, and coolant filler openings (Compliance with § 23.1557(c)(1) requirements):

Instead of compliance with § 23.1557(c)(1), the applicant must comply with the following:

a. Fuel filler openings must be marked at or near the filler cover with—

(1) For diesel engine-powered airplanes—

(a) The words “Jet Fuel”; and

(b) The permissible fuel designations, or references to the Airplane Flight Manual (AFM) for permissible fuel designations.

(c) A warning placard or note that states the following or similar:

“Warning—this airplane equipped with an aircraft diesel engine, service with approved fuels only.”

The colors of this warning placard should be black and white.

11. Powerplant—Fuel system—Fuel-freezing:

If the fuel in the tanks cannot be shown to flow suitably under all possible temperature conditions, then fuel temperature limitations are required. These will be considered as part of the essential operating parameters for the aircraft and must be limitations.

a. The takeoff temperature limitation must be determined by testing or analysis to define the minimum cold-soaked temperature of the fuel that the airplane can operate on.

b. The minimum operating temperature limitation must be determined by testing to define the minimum operating temperature acceptable after takeoff (with minimum takeoff temperature established in (a) of this paragraph).

12. Powerplant Installation—Vibration levels:

a. Vibration levels throughout the engine operating range must be evaluated and:

(1) Vibration levels imposed on the airframe must be less than or equivalent to those of the gasoline engine; or

(2) Any vibration level that is higher than that imposed on the airframe by the replaced gasoline engine must be considered in the modification and the effects on the technical areas covered by the following paragraphs must be investigated: 14 CFR part 23, §§ 23.251; 23.613; 23.627; 23.629 (or CAR 3.159, as applicable to various models); 23.572; 23.573; 23.574 and 23.901.

b. Vibration levels imposed on the airframe can be mitigated to an acceptable level by use of isolators, dampers clutches, and similar provisions, so unacceptable vibration levels are not imposed on the previously certificated structure.

13. Powerplant Installation—One cylinder inoperative:

It must be shown by test or analysis, or by a combination of methods, that the airframe can withstand the shaking or vibratory forces imposed by the engine if a cylinder becomes inoperative. Diesel engines of conventional design typically have extremely high levels of vibration when a cylinder becomes inoperative. Data must be provided to the airframe installer/modifier so either appropriate design considerations or operating procedures, or both, can be developed to prevent airframe and propeller damage.

14. Powerplant Installation—High Energy Engine Fragments:

It may be possible for diesel engine cylinders (or portions thereof) to fail and physically separate from the engine at high velocity (due to the high internal pressures). This failure mode will be considered possible in engine designs with removable cylinders or other non-integral block designs. The following is required:

a. It must be shown that the engine construction type (massive or integral block with non-removable cylinders) is inherently resistant to liberating high energy fragments in the event of a catastrophic engine failure; or,

b. It must be shown by the design of the engine, that engine cylinders, other engine components or portions thereof (fragments) cannot be shed or blown off the engine in the event of a catastrophic engine failure; or

c. It must be shown that all possible liberated engine parts or components do not have adequate energy to penetrate engine cowlings; or

d. Assuming infinite fragment energy, and analyzing the trajectory of the probable fragments and components, any hazard due to liberated engine parts or components will be minimized and the possibility of crew injury is eliminated. Minimization must be considered during initial design and not presented as an analysis after design completion.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0056, dated March 19, 2019 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A318, A319, A320, and A321 series airplanes. 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-2019-0497.

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 A318, A319, A320, and A321 series airplanes. The NPRM published in the Federal Register on July 1, 2019 (84 FR 31244). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations.

The FAA is issuing this AD to address the failure of certain life-limited parts, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

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

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

Airbus has issued Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 1 Safe Life Airworthiness Limitations (SL-ALI), Revision 06, Issue 02, dated November 30, 2018. This service information describes new maintenance requirements and airworthiness limitations. 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 1,497 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

This 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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 777-200 and -300 series airplanes. The NPRM published in the Federal Register on June 1, 2018 (83 FR 25405). The NPRM was prompted by reports of unreliable performance of the water and fuel scavenge system; failure of the fuel scavenge function can cause trapped fuel, resulting in unavailable fuel reserves. During flight, any water in the fuel can sink to the bottom of the fuel tank. This water can enter the fuel scavenge inlets and can then freeze as it travels from the body center fuel tank into the colder fuel scavenge tubes in the left and right cheek center fuel tanks (outboard of the side of body ribs). The flow of scavenge fuel from the center fuel tank to the main fuel tanks can then decrease or stop. When this occurs, as much as 700 pounds of fuel can remain unavailable during flight. If the fuel quantity decreases to the quantity of the unavailable fuel, then fuel exhaustion will occur, which could lead to subsequent power loss of all engines. The NPRM proposed to require incorporating operating limitations; or modifying the water and fuel scavenge systems in the fuel tanks, modifying the fuel jettison system, making electrical changes in the main equipment center, modifying the wiring in certain panels, and installing new software.

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

The Air Line Pilots Association, International (ALPA) stated that it supported the intent of the NPRM.

ALPA requested that we reduce the compliance time in paragraph (g) of the proposed AD from “36 months after the effective date of this AD” to “12 months after the effective date of this AD,” for the action to revise the operating limits in the “Fuel System—Loading” section of the “Certificate Limitations” section of the FAA-approved Boeing Model 777 Airplane Flight Manual.

We do not agree with the request to shorten the compliance time. After considering all the available information, we have determined that the compliance time, as proposed, which is the same as the compliance time for the similar recently issued AD 2018-14-08, Amendment 39-19328 (83 FR 32198, dated July 12, 2018) (“AD 2018-14-08”), represents an appropriate interval of time in which the required actions can be performed within the affected fleet, while still maintaining an adequate level of safety. In developing an appropriate compliance time, we considered the safety implications and document update schedules for timely accomplishment of the required actions.

Also, to reduce the compliance time of the proposed AD would necessitate (under the provisions of the Administrative Procedure Act) reissuing the notice, reopening the period for public comment, considering additional comments subsequently received, and eventually issuing a final rule. That procedure could add unwarranted time to the rulemaking process. We have determined that further delay of this AD is not appropriate. However, most ADs, including this one, permit operators to accomplish the requirements of an AD at a time earlier than the specified compliance time. If additional data are presented that would justify a shorter compliance time, we may consider further rulemaking on this issue. We have not changed this AD in this regard.

American Airlines (AAL) requested that we clarify the statement in the “Discussion” section of the proposed AD that says, “as much as 700 pounds of fuel can remain unavailable during flight.” AAL stated that it is unable to find any Boeing documentation that references 700 pounds of center tank fuel regarding the center tank pump or fuel scavenge system operation.

We agree to clarify. AD 2016-11-03, Amendment 39-18530 (81 FR 34867, dated June 1, 2016) (“AD 2016-11-03”) applies to certain Boeing Model 777 airplanes and has similar requirements to modify the scavenge system. Prior to issuance of AD 2016-11-03, Boeing informed the FAA that as much as 2,600 pounds of fuel could remain trapped in the center fuel tank after the center tank override/jettison pumps are shut off.

Subsequent to the issuance of AD 2016-11-03, Boeing requested an alternative method of compliance (AMOC) from the FAA and stated that if the center tank override/jettison pumps are turned on, most of that 2,600 pounds of fuel can be accessed by those pumps. Boeing stated that, if a flight is down to the last of its reserve fuel, fuel exhaustion is a far greater risk than fuel tank ignition and all fuel pumps should be operated to access as much fuel as possible.

We concurred with this assessment and asked Boeing to determine the greatest amount of fuel that would not be accessible by the center tank override/jettison pumps if they are run until their inlets uncover over the range of possible airplane attitudes in a low fuel situation. Boeing responded that up to 700 pounds above the original unusable fuel level could remain trapped in the center fuel tank. This was the basis for the 700 pound value specified in the AMOC for AD 2016-11-03, in AD 2018-14-08, and in this AD. We have not changed this AD in this regard.

AAL requested that we clarify what prompted the proposed AD. AAL stated that the proposed AD, AD 2016-11-03 and AD 2018-14-08, included reports of unreliable performance of the float operated fuel scavenge system. AAL asked if the reports state that a “FUEL SCAVENGE SYS” engine-indicating and crew-alerting system (EICAS) message occurred or are these simply reports of center tank fuel remaining after flight. AAL also asked that if the “FUEL SCAVENGE SYS” EICAS message did occur, did the fuel scavenge system not perform to the intended design criteria, or if the reports are simply reports of the center tank fuel remaining after flight, do the reports state the amount of fuel in both the center and main tanks. AAL commented that it is important to differentiate between normal conditions and fuel scavenge system failure conditions.

We agree to clarify. Boeing has analyzed the reports referenced in AD 2016-11-03, AD 2018-14-08, and this AD, and provided that information to the FAA. Those reports indicated failures of the fuel scavenge system on Boeing Model 777 airplanes. Some of those reports included statements that the “FUEL SCAVENGE SYS” EICAS message had displayed. Some reports were from airplanes that had earlier airplane information management system (AIMS) versions installed that did not have that message included in the software. The flight times and fuel tank quantities remaining after flight were included in the information provided by Boeing. In all cases, the fuel remaining in the tank was evaluated by Boeing. In each case, Boeing determined that the fuel scavenge system had failed to function. We have not changed this AD in this regard.

AAL stated that the proposed AD said, “If the fuel quantity decreases to the quantity of the unavailable fuel, then fuel exhaustion will occur, which could lead to subsequent power loss of all engines.” AAL commented that while this is a true statement without context, it ignores existing Code of Federal Regulations (CFR) requirements for additional fuel reserves and existing FAA-approved 777 Airplane Flight Manual (AFM) procedures.

We infer that AAL is requesting that we clarify the statement provided. We recognize that, for each type of operation, there are specific detailed requirements in the applicable operating rules that dictate the amount of reserve fuel that must be loaded prior to flight. Those requirements for reserve fuel are intended to account for various anticipated scenarios requiring additional fuel that can occur due to environmental conditions or due to anticipated single failures.

For any given mission, one of the critical fuel scenarios in the operating rules will dictate the minimum reserve fuel that must be carried in addition to mission fuel. Because there is the potential for up to 700 pounds of that fuel to be trapped, it is necessary to include this amount to the fuel load calculation in addition to the minimum fuel reserves calculated in accordance with the operating rules requirements. The FAA considers operation of airplanes with available fuel reserve levels below what is required for safe operation by operating rules to be an unsafe condition. We have not changed this AD in this regard.

AAL stated that from the electrical load management system (ELMS) logic that sets the “FUEL SCAVENGE SYS” EICAS message, 500 pounds or less of unusable fuel in the center tank is within tolerance for normal airplane performance and does not trigger a flight crew notification or record it as a maintenance message according to system design. AAL stated that the FAA's claim of an unsafe condition is mutually opposed to the existing fault isolation procedures that state no maintenance action is necessary.

AAL also commented that if there is 700 pounds of unusable fuel in the center tank, then only the amount above the acceptable 500-pound limit, or 200 pounds, should be at issue with respect to the proposed AD's “safety” condition. AAL stated that fuel is consumed during cruise at 17,500 pounds/hour for a Model 777-200ER airplane at max cruise range and each 100 pound increment of fuel is consumed about every 21 seconds.

We infer that the commenter requests a revision to the additional amount of reserve fuel required by this AD. We do not agree with the request. We note that the intent of the “FUEL SCAVENGE SYS” EICAS message is to annunciate a failure condition rather than normal operation. Boeing selected the logic for the message with the intent of annunciating failures that are likely to trap well over 500 pounds of fuel, while not creating nuisance messages from intermittent indications of center tank fuel quantity levels slightly above zero during normal operation. The fuel quantity indicating system (FQIS) is calibrated to indicate zero fuel at the unusable fuel level when the scavenge system functions as intended. In the absence of known system deficiencies, such as minimum equipment list (MEL) items, or other limitations, operators are allowed to take credit for all of the fuel in the center tank as usable fuel down to the zero indicated level.

As discussed previously, we have determined that up to 700 pounds of center tank fuel is potentially unusable. This AD is intended to ensure that operators are not operating with less available mission and reserve fuel than is required by the applicable operating rules by ensuring that an additional 700 pounds of fuel is loaded to account for this amount of fuel potentially being unusable. We have not changed this AD in this regard.

AAL stated that it analyzed Model 777-200 flights over the last 12 months to illustrate the effectiveness of the CFR reserve fuel requirements. AAL commented that out of 20,255 flights, no airplane landed with less than 10,500 pounds of fuel or approximately half of the CFR required fuel reserve. AAL stated that every flight had enough “insurance” fuel to fly (cruise) for at least 30 additional minutes. AAL also stated it has now flown more than 400,000 flights on affected airplanes since early 1999, without flight operational ramifications from the fuel scavenge system. AAL stated this proves that the existing CFR reserve fuel and AFM procedures are more than sufficient to address any potential fuel scavenge system shortfall, including complete fuel scavenge system failure resulting in up to 2,400 pounds of remaining center tank fuel.

We infer that AAL is requesting that we withdraw the NPRM based on the effectiveness of the CFR reserve fuel requirements. We do not agree with the request. The FAA would expect fleet experience to be as described by the commenter. The critical reserve fuel requirements in the operating rules account for failure scenarios that are anticipated to be rare, but for which the FAA has determined that fuel reserves must be carried. For example, the fuel reserve requirement that often is most critical in dictating the minimum reserve fuel is the requirement in 14 CFR 121.646 to carry sufficient fuel for a maximum length extended-operations (ETOPS) diversion with an engine failure that causes rapid depressurization of the airplane. That is a rare failure which was not likely encountered on the flights analyzed by the commenter during the service period cited. This AD addresses loss of capability to scavenge fuel in the center fuel tank during a critical fuel scenario, such as an ETOPS diversion, which could lead to fuel exhaustion and subsequent power loss of all engines. We have not changed this AD in this regard.

AAL stated that it consulted Ontic (the FQIS original equipment manufacturer) about the accuracy of the FQIS. AAL commented that under flight conditions, FQIS accuracy is plus/minus 1 percent at full scale (main tanks) and 0 to 0.5 percent below 10 percent (center tank). AAL also commented that the CFR reserve fuel requirements effectiveness analysis discussed previously used full main tanks and minimum center tank fuel to determine the maximum effect on flight operations for 700 pounds of unusable fuel. AAL stated that with full main tanks (63,800 pounds each), FQIS is only accurate plus or minus 1,276 pounds.

We infer that AAL requested that we address the accuracy of FQIS. The figures provided by the FQIS vendor are specification requirements for accuracy and do not reflect actual performance of the system. While the FQIS does have some amount of error, much of that error is accounted for in the calibration of the FQIS installed in individual tanks when the zero indicated value is adjusted to either match or be slightly above the actual unusable fuel level.

In addition, the fuel reserve requirements provide a level of safety margin that the FAA has determined is necessary to ensure safe operation in consideration of anticipated environmental and failure conditions. A very small number of flights with available fuel reserves slightly below the required level may occur due to non-latent system failures, and the FAA has determined this does not present an unacceptable risk. However, the FAA considers operation of airplanes with available fuel reserve levels below what is required for safe operation by operating rules to be an unsafe condition. We have not changed this AD in this regard.

AAL requested that we provide an alternative action to the revision required by paragraph (g) of the proposed AD, which proposed changes to the operating limitations by requiring an additional 700 pounds of reserve fuel when the center tank fuel is required. AAL proposed an alternative requirement to add a statement to the Non-Normal section of the AFM that, in the event of a “FUEL SCAVENGE SYS” EICAS message, the flight crew should make an assessment of the remaining fuel reserves, and as an option, they can choose to turn on the center tank pump(s) until the message clears (center fuel tank quantity falls below 500 pounds) or until the pump low pressure light illuminates continuously, whichever occurs first. AAL stated that the Model 777 airplane has a “FUEL QTY LOW” EICAS caution message that will display when there is less than 4,500 pounds of fuel in the left or right main fuel tank. AAL commented that the AFM Non-Normal procedures call for, among other actions, turning all fuel pump switches ON. AAL also commented that turning on the center tank fuel pumps can draw the center tank fuel quantity “down to a fuel quantity as low as 300 lbs.”.

We infer that the commenter considers that, as long as the center fuel tank override/jettison pumps are operated beyond the point where the “FUEL SCAVENGE SYS” EICAS message is extinguished (due to less than 500 pounds fuel remaining in the center fuel tank) or until the center tank fuel pump low pressure lights are illuminated continuously, the amount of fuel for which usable fuel credit was taken, but which actually remains trapped, is so small it has no safety impact.

AAL commented that “carrying an additional 700 lbs. of dead weight each flight provides no safety benefit, provides no value to the operation, is redundant to existing AFM procedures during potential low fuel situations and results in a substantial annual fuel penalty for the fleet.”.

AAL also requests that, if the alternative requirement is added to the proposed AD, it also be allowed as a method of compliance for AD 2016-11-03 and AD 2018-14-08 via an AD revision.

We do not agree with the commenter's request. Regarding the “FUEL QTY LOW” EICAS caution message, the procedure described by the commenter does not ensure that the up to 700 pounds of fuel that remains trapped due to the scavenge system failure to function will still be available as usable fuel. As discussed previously, Boeing has informed the FAA that up to 700 pounds of fuel above the original unusable fuel level can remain trapped.

The FAA does not agree that the additional 700 pounds of fuel required by this AD provides no safety benefit. As previously explained, the fuel reserve operating requirements are necessary to ensure safe operation in consideration of environmental conditions such as head winds and icing conditions, and reasonably anticipated failure conditions that can significantly increase the amount of fuel needed to safely complete a flight. For example, the fuel reserve requirement in 14 CFR 121.646 to carry fuel to accommodate a maximum length ETOPS diversion, following an engine failure that causes a rapid depressurization, is often the critical requirement that dictates the minimum reserve fuel that must be carried. While such failures are rare, the FAA determined all ETOPS flights are required to carry that extra fuel even though the vast majority of those flights will not need it.

The FAA notes that, while the reported events did not occur during ETOPS flights, at least two engine failures causing rapid depressurization have occurred in the last two years on other transport airplanes. Also, engine failures that released high energy debris beyond the engine nacelle, which could cause a rapid depressurization, have occurred on the Boeing Model 777 airplane, including at least three events in the last five years. The FAA has determined an unsafe condition exists when an airplane design deficiency results in failure of the fuel system to provide access to the full amount of fuel, for which credit is taken by the operator as usable fuel to meet the operating rules.

The FAA also does not agree with the AAL proposal to instruct flight crews to turn on the center tank pumps if a “FUEL SCAVENGE SYS” EICAS message is displayed after those pumps are turned off in response to the “FUEL LOW CENTER” EICAS message. The fuel pumps are turned off when the “FUEL LOW CENTER” EICAS message is displayed to avoid dry running of the fuel pumps, which presents a potential fuel tank ignition risk. This message was included in the ELMS software installation specified in paragraph (i)(1) of AD 2011-09-05, Amendment 39-16667 (76 FR 22305, April 21, 2011) (“AD 2011-09-05”). The FAA agrees with Boeing, as discussed previously, that turning the center tank fuel pumps back on in a low fuel situation is appropriate because such cases would be rare and in those cases the risk of fuel exhaustion exceeds the risk of a fuel tank ignition event. However, we do not consider the fuel tank ignition risk that would be posed by potentially running the center pumps to the point where they run dry every time the scavenge system fails, as proposed by the commenter, to be acceptable.

Therefore, we have not changed this AD in this regard.

AAL requested that we provide a statement in the proposed AD to exempt operators from accomplishing the requirements in paragraphs (g) and (h) of the proposed AD if an operator's normal flight plan requires a minimum of 700 pounds of fuel above and beyond existing CFR requirements.

We disagree with the commenter's request. This AD requires an operator to carry 700 pounds of fuel in addition to the amount of fuel required by the applicable operating rules due to that amount of fuel being considered unusable. While some operators may be currently voluntarily loading an extra 700 pounds of fuel, this AD requires changes to the operator manuals to ensure the appropriate amount of fuel is loaded for each flight. Therefore, we have not changed this AD in this regard.

AAL requested that the proposed AD should state the CFR basis for applying the additional 700-pound reserve fuel requirement for compliance verification purposes.

We agree to clarify. The requirements of this AD address the identified unsafe condition via an amendment to 14 CFR part 39, which applies in addition to the applicable operating rules. We do not intend for this AD to replace or revise the operating rule requirements for fuel reserves. Those requirements are defined in the various applicable operating rules, and they vary with the type of operation being performed. The intent of this AD is that, once the operator has determined the minimum mission and reserve fuel that are required by the applicable operating rules, an additional 700 pounds of fuel must be added to the minimum required fuel load to account for the potential of up to 700 pounds of unusable fuel in the center tank due to failure of the scavenge system. We have not changed this AD in this regard.

Boeing requested that we give credit to a “remote certification airplane” that had accomplished Boeing Service Bulletin 777-28-0082 RC01, dated December 7, 2015. Boeing stated that as part of the Boeing Service Bulletin 777-28-0082 remote certification program, the change was completed on airplane WB035 using Boeing Service Bulletin 777-28-0082 RC01, dated December 7, 2015, which occurred before Boeing Special Attention Service Bulletin 777-28-0082, dated May 26, 2016, was issued, and is equivalent to Boeing Special Attention Service Bulletin 777-28-0082. Boeing commented that this remote certification airplane is referenced in Boeing Special Attention Service Bulletin 777-28-0082, dated May 26, 2016; and Boeing Special Attention Service Bulletin 777-28-0082, Revision 1, dated May 1, 2017.

We disagree with the commenter's request. Airplane WB035 completed the remote certification by completing Boeing Service Bulletin 777-28-0082 RC01, dated December 7, 2015, and several other necessary Boeing service information documents. At this time, based on the information submitted by the commenter, it is not clear to the FAA that the configuration of WB035 is equivalent to that called for by Boeing Special Attention Service Bulletin 777-28-0082. To show that the final configuration of airplane WB035 is equivalent to the Boeing Special Attention Service Bulletin 777-28-0082 configuration, the operator or Boeing may submit additional data to the FAA and request approval of an AMOC under the provisions of paragraph (j) of this AD. We have not changed this AD in this regard.

Boeing, Delta Airlines (DAL), and United Airlines (UAL) requested that we revise the proposed AD to allow the use of certain information notices to complete the actions specified in paragraph (h) of the proposed AD. Boeing, DAL, and UAL stated that this would avoid operators having to request an AMOC for the deviations allowed by these information notices.

Boeing stated that Boeing Information Notice 777-28-0082 IN 03, dated May 25, 2017; Boeing Information Notice 777-28-0082 IN 04, dated December 19, 2017; and Boeing Information Notice 777-28-0082 IN 05, dated January 30, 2018, provide clarifications, improvements, and deviations, concurred by Boeing authorized representatives where applicable.

UAL noted that the information notices affect steps and figures marked as “RC” (required for compliance) in the related service bulletin.

DAL stated the changes in the information notices are required for some airplanes and configurations in order to comply with Boeing Special Attention Service Bulletin 777-28-0082 ( i.e., an operator would not be able to comply with Boeing Special Attention Service Bulletin 777-28-0082, Revision 1, dated May 1, 2017, as currently written). DAL commented that issuing a final rule that operators cannot comply with as written should be avoided and places additional burden on operators.

We agree with the commenters that the information notices provide clarifications, improvements, and deviations, which avoid the need to request an AMOC. We note that Boeing has released Boeing Special Attention Service Bulletin 777-28-0082, Revision 2, dated May 31, 2019, which incorporates the clarifications, improvements, and deviations in the information notices. We have revised paragraph (h) of this AD to refer to Boeing Special Attention Service Bulletin 777-28-0082, Revision 2, dated May 31, 2019. We have also revised paragraph (i) of this AD to provide credit for Boeing Special Attention Service Bulletin 777-28-0082, dated May 26, 2016, and Boeing Special Attention Service Bulletin 777-28-0082, Revision 1, dated May 1, 2017, along with the related information notices.

Boeing requested that the proposed AD be revised to make it an AMOC for paragraph (g) of AD 2011-09-15, Amendment 39-16677 (76 FR 24345, May 2, 2011) (“AD 2011-09-15”). Boeing stated that paragraph (g) of AD 2011-09-15 requires installation of new ELMS software, an addition of left and right jettison pump auto shutoff relays, installation of ground fault interrupter relays and making changes in the ELMS P110/P210 and P301/P302 equipment panels.

Boeing commented that Boeing Special Attention Service Bulletin 777-28-0082, Revision 1, dated May 1, 2017, also requires installation of new ELMS software and modification of the ELMS P110/P210 and P301/P302 equipment panels. Boeing also commented that accomplishment of the engine fuel feed system modification specified in paragraph (h) of the proposed AD for installing ELMS software and making changes in the equipment panels is an acceptable AMOC for paragraph (g) of AD 2011-09-15.

We agree to clarify. Boeing Special Attention Service Bulletin 777-28-0082 already states that the FAA approves the actions specified in the service bulletin as an AMOC to certain requirements of AD 2011-09-15. Therefore, we do not need to revise this AD to specify this information.

DAL requested that we add certain language to this AD that allows installing the ELMS software version specified in paragraph (h) of this AD without requiring AMOCs be requested for AD 2011-09-15 and AD 2014-11-01, Amendment 39-17851 (79 FR 31851, June 3, 2014) (“AD 2014-11-01”). DAL stated that they reviewed AD 2011-09-15 and AD 2014-11-01 because of the ELMS software changes that were required in those ADs. DAL stated that paragraph (g) of AD 2011-09-15 requires the accomplishment of Boeing Service Bulletin 777-28A0037, Revision 2, dated September 20, 2010, which includes a requirement to install new ELMS software. DAL commented that paragraph (h)(5) of AD 2014-11-01 requires the accomplishment of Boeing Service Bulletin 777-24-0087, Revision 2, dated August 16, 2007; or Boeing Service Bulletin 777-28A0039, Revision 2, dated September 20, 2010, which also includes a requirement to install new ELMS software.

In addition, DAL stated that installing the ELMS software, as described in paragraph (h) of the proposed AD, will violate the ELMS software installation requirements of AD 2011-09-05 and AD 2014-11-01. DAL requested that a paragraph be added to this AD that allows the ELMS software installed in accordance with Boeing Special Attention Service Bulletin 777-28-0082, as required by paragraph (h) of this AD, to be accomplished without the need for operators to request an AMOC to the ELMS software installation requirements of AD 2011-09-05 and AD 2014-11-01. DAL proposed that this added paragraph contains language similar to paragraph (j)(5) in this AD, or language similar to that in paragraph (h)(5) of AD 2014-11-01 (see AD 2014-11-01 comment “Request to Allow Use of Later Revisions of ELMS Service Information”).

We agree with the commenter's request because we have determined that the ELMS1 OPS software installation specified in paragraph (h) of this AD is acceptable for compliance with the ELMS OPS software installations required in AD 2011-09-15 and AD 2014-11-01. We have added paragraph (j)(6) of this AD that states the ELMS1 OPS software installation specified in paragraph (h) of this AD is acceptable for compliance with the ELMS OPS software requirement specified in paragraph (h)(5) of AD 2014-11-01, provided all provisions of AD 2014-11-01 that are not specifically described in paragraph (j)(6) of this AD are complied with accordingly. As discussed in the previous comment, an AMOC to AD 2011-09-15 is not needed in this AD because Boeing Special Attention Service Bulletin 777-28-0082 already received an AMOC approved for the ELMS software installation requirements in AD 2011-09-15.

DAL requested that we clarify the requirements in paragraphs (g) and (h) of the proposed AD. DAL asked the following questions:

• Can operators only perform paragraph (g) of the proposed AD and be in compliance with the proposed AD?

• Can operators only perform paragraph (h) within 36 months after the effective date of the proposed AD and be in compliance with the proposed AD?

• Must operators perform paragraph (g) of the AD regardless of their intent to accomplish paragraph (h) and be in compliance with the proposed AD?

• If paragraph (g) of the proposed AD is accomplished within 36 months after the effective date of the proposed AD, then if the operator performs paragraph (h) of the proposed AD, can figure 1 to paragraph (g) of this AD be removed from the referenced flight manuals and remain in compliance with the proposed AD?

We agree to clarify. Operators must either accomplish the actions required by paragraph (g) of this AD or the actions required by paragraph (h) of this AD, within 36 months after the effective date of this AD. An operator does not need to accomplish the actions required by paragraph (g) of this AD as long as the operator accomplishes the actions specified in paragraph (h) of this AD within the required compliance time (36 months after the effective date of this AD). If an operator accomplishes the actions required by paragraph (g) of this AD, and subsequently accomplishes the actions required by paragraph (h) of this AD on an airplane, then the requirements of paragraph (g) of this AD are terminated and figure 1 to paragraph (g) of this AD can be removed from the airplane's AFM and the weight and balance control and loading manual. We have not changed this AD in this regard.

AAL requested that we revise the Costs of Compliance paragraph in the proposed AD. AAL stated that the Costs of Compliance paragraph neglects to list the cost of carrying the additional 700 pounds of reserve fuel. AAL commented that the labor cost estimate only reflects what is in the Boeing service information, but it does not account for actual labor expenditures. AAL also commented that the proposed AD generally addresses older airplanes, which eliminates any warranty coverage.

We partially agree with the commenter's request. We agree with adjusting the cost to reflect more accurate labor expenditures. We have revised the Costs of Compliance paragraph in this AD to reflect the labor cost for the fuel system modification of 850 work-hours based on the information submitted by the commenter. However, we do not agree to include the additional fuel costs in this AD. We recognize that, in doing the actions required by an AD, operators might incur operational costs in addition to the direct costs. The cost analysis in AD rulemaking actions typically does not include incidental or operational costs, such as additional fuel costs, time to gather materials and tools, etc. Those costs, which might vary significantly among operators, have not been included in this AD.

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

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

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

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

We reviewed Boeing Special Attention Service Bulletin 777-28-0082, Revision 2, dated May 31, 2019. This service information describes procedures for modifying the water and fuel scavenge systems in the fuel tanks on each side of the airplane, modifying the fuel jettison system, making electrical changes in the main equipment center, modifying the wiring in the ELMS P110 and P210 equipment panels, and installing new ELMS1 software. The FQIS wire bundle W8011 adjustment is intended to prevent the wire bundle from rubbing with a new fuel scavenge inlet tube. The electrical changes in the main equipment center include installing additional relays on the ELMS P301 and P302 equipment panels, and making wiring changes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 111 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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

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

This AD 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:

Discussion

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0020, dated January 31, 2019 (“EASA AD 2019-0020”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 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 A350-941 and -1041 airplanes. The NPRM published in the Federal Register on April 9, 2019 (84 FR 14038). The NPRM was prompted by reports of cracks within the ring gears of an SGRA resulting from a change in the raw material manufacturing process. The NPRM proposed to require replacement of affected parts with serviceable parts.

The FAA is issuing this AD to address cracking of SGRA ring gears. This condition, if not detected and corrected, could, in combination with an independent failure on the second SGRA of the same slat surface, lead to detachment of the slat surface, possibly resulting in reduced control of the airplane and injury to persons on the ground. 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.

The Air Line Pilots Association, International; Stephanie Lok; and an anonymous commenter indicated their support for the NPRM.

Delta Air Lines (Delta) requested that a statement be added to paragraph (g) of this AD to clarify that the installation of affected parts was prohibited for Group 1 airplanes before 15,000 flight hours. Delta asserted that the AD could be interpreted as allowing the installation of affected parts on those airplanes during that time period.

The FAA does not agree that an additional statement to paragraph (g) of this AD is necessary. The FAA has confirmed with EASA that since the safety assessment was performed on the life of the airplane and not the life of the affected part, a restriction to limit the affected parts prior to 15,000 flight hours is not necessary. Therefore, the commenter's interpretation that installation of affected parts could be allowed prior to 15,000 flight hours is correct. This AD has not been changed in this regard.

Delta requested that the serial numbers of final assembly line units be removed from Table 1 of certain Liebherr service information instead of noting that they are to be excluded.

The FAA does not agree with the commenter's request. Although the proposal may provide a more straightforward presentation of the serial numbers, obtaining new service information with revised serial number tables from the manufacturer would delay publication of this AD. This delay would be inappropriate since the FAA has determined that an unsafe condition exists and that the required actions must be accomplished to ensure continued safety. The FAA also has determined that the serial number table in the Liebherr service information provides the information necessary to comply with this AD. Therefore, this AD has not been changed in this regard.

Delta requested that certain Airbus service information be updated to clarify the location of a certain marking on the identification plate. Delta noted that the Liebherr service information refers to the specified marking, but does not show the marking's location, while the Airbus service information does not refer to the marking at all.

The FAA disagrees with obtaining revised service information because it would delay publication of this AD, which would be inappropriate for the reasons stated previously. However, the FAA agrees to clarify the location of the specified marking on the identification plate. The FAA has confirmed with EASA that the marking will be on both “A” faces of the identification plate, as depicted in Figure 1 of the Liebherr service information. This AD has not been changed 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 2019-0020 describes procedures for replacing the affected SGRAs. 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 12 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 cost estimate.

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

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

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

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

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

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

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

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

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

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2000-03-20 R1, Amendment 39-12298 (66 FR 34530, June 29, 2001) (“AD 2000-03-20 R1”). AD 2000-03-20 R1 applied to all Airbus SAS Model A300 B4-601, B4-603, and B4-620, Model A300 B4-600R series, and Model A300 F4-605R airplanes. The NPRM published in the Federal Register on June 17, 2019 (84 FR 27990). The NPRM was prompted by reports of cracking due to fatigue-related stress in the radius of frame 40, adjacent to the tension bolts at the center/outer wing junction. The NPRM proposed to require initial and repetitive ultrasonic (UT) and high frequency eddy current (HFEC) inspections and applicable corrective actions. The FAA is issuing this AD to address fatigue cracking on the forward fittings in the radius of frame 40, adjacent to the tension bolts in the center section of the wings, which could result in reduced structural integrity of the wings.

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0044, dated March 7, 2019 (“EASA AD 2019-0044”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A300 B4-600 series, Model A300 B4-600R series, Model A300 F4-605R, and Model A300 C4-605R Variant F airplanes. See the MCAI for additional background information.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. Patrick Imperatrice indicated support for the NPRM.

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

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

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

EASA AD 2019-0044 describes procedures for initial and repetitive UT and HFEC inspections and applicable corrective actions. Corrective actions include reworking the fuselage lateral panel at frame 40, blending out around cracks, and repair. 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 65 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates that it would take about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting the inspection results on U.S. operators to be $5,525, or $85 per product.

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to 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 current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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 has 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:

I. Background

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 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 otherwise required by 5 U.S.C. 553. The 2015 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 method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act and the Office of Management and Budget (“OMB”) guidance required by the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the Consumer Price Index for all Urban Consumers (“CPI-U”) for the October preceding the date of the adjustment and the prior year's October CPI-U. As set forth in OMB Memorandum M-19-04 of December 14, 2018, the adjustment multiplier for 2019 is 1.02522. In order to complete the 2019 annual adjustment, each current CMP is multiplied by the 2019 adjustment multiplier. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701(b)) requires agencies, beginning in 2017, to make annual adjustments for inflation to CMPs without needing to provide notice and the opportunity for public comment required by 5 U.S.C. 553. Additionally, the methodology used for adjusting CMPs for inflation, effective 2017, is provided by statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. FinCEN is charged only with performing ministerial computations to determine the dollar amount of adjustments for inflation to CMPs. Accordingly, prior public notice and an opportunity for public comment and a delayed effective date are not required for this rule.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

This rule is not a significant regulatory action as defined in section 3.f of Executive Order 12866.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.

For the reasons set forth in the preamble, part 1010 of chapter X of title 31 of the Code of Federal Regulations is amended as follows:

Correction

In FR Rule Doc. 2019-20781, appearing on page 51413 in the Federal Register of Monday, September 30, 2019, the following corrections are made:

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest to do so. There is insufficient time to allow for a reasonable comment period prior to the date of the event. The rule must be in force by October 12, 2019. The tug-of-war event will consist of teams on opposing sides of the Manasquan Inlet with a rope extended between the sides. The event will span the entire width of the inlet. Vessel operation in the area of the event could be hazardous to both event participants and vessels. We are taking immediate action to ensure the safety of event participants and vessels operating in the area.

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 mitigate the potential safety hazards associated with the marine event in this location.

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 Delaware Bay (COTP) has determined that potential hazards associated with the rope crossing the entire span of the waterway will be a safety concern for anyone within a 400 feet of the tug-of-war rope. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

This rule establishes a temporary safety zone on the waters of the Manasquan Inlet to be in effect from noon to 2:30 p.m. on October 12, 2019. The safety zone will cover all waters within 400 feet of the event located between approximate locations 40°06′09″ N, 74°02′09″ W and 40°06′14″ N, 74°02′08″ W. During the event, the inlet will be closed to all non-participant vessel traffic. There is a 30-minute break tentatively planned for midway through the event. If circumstances permit, during the break, the rope will be removed from navigable waters and vessels may be allowed to transit through the area at the discretion of the COTP or COTP's designated representative. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative of the Captain of the Port. The Coast Guard will provide notice of the safety zone by Broadcast Notice to Mariners and by on-scene actual notice.

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

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

This regulatory action determination is based on the size, location, and duration of the regulated area. While this regulated area will impact a designated area of the Manasquan River Inlet for two and half hours, the event sponsor has organized a tentative 30-minute time period during the event where vessels would be able to transit through the inlet. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule will allow vessels to seek permission to enter the zone during the 30-minute break period during the event.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and 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 made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone that entering, transiting through, anchoring in, or remaining within a limited area on the navigable water of the Manasquan Inlet, during a tug-of-war event lasting approximately two and a half hours. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

I. Background

On June 2, 2010, EPA promulgated a revised primary SO 2 NAAQS with a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. See 75 FR 35520 (June 22, 2010). Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. These SIPs, which EPA has historically referred to as “infrastructure SIPs,” are to provide for the “implementation, maintenance, and enforcement” of such NAAQS, and the requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibility under the CAA. Section 110(a) of the CAA requires states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of individual state submissions may vary depending upon the facts and circumstances. The content of the changes in such SIP submissions may also vary depending upon what provisions the state's approved SIP already contains. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS.

Section 110(a)(2)(D)(i)(I) of the CAA requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state. The two clauses of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance of the NAAQS).

On June 25, 2018, the South Carolina Department of Health and Environmental Control (SC DHEC) submitted a revision to the South Carolina SIP addressing only prongs 1 and 2 of CAA section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO 2 NAAQS. EPA is approving SC DHEC's June 25, 2018, SIP submission because the State demonstrated that South Carolina will not contribute significantly to nonattainment, or interfere with maintenance, of the 2010 1-hour SO 2 NAAQS in any other state. All other elements related to the infrastructure requirements of section 110(a)(2) for the 2010 1-hour SO 2 NAAQS for South Carolina are addressed in separate rulemakings. 1

In a notice of proposed rulemaking (NPRM) published on April 23, 2019, EPA proposed to approve South Carolina's June 25, 2018, SIP revision on the basis that the State's implementation plan adequately addresses prong 1 and prong 2 requirements for the 2010 1-hour SO 2 NAAQS. See 84 FR 16799. The details of the SIP revision and the rationale for EPA's action is explained in the NPRM. Comments on the proposed rulemaking were due on or before May 23, 2019. EPA received three sets of adverse comments from anonymous commenters. These comments are included in the docket for this final action. EPA has summarized the comments and provided responses below.

Comment 1: A commenter expresses concern about EPA's statement that the Agency does not have monitoring or modeling data suggesting that North Carolina is impacted by SO 2 emissions from the Milliken & Co. Magnolia Plant (Magnolia)  2 or WestRock CP LLC (WestRock). 3 The commenter questions why EPA did not model these facilities and states that EPA must have monitoring data to “definitively conclude anything about these sources.”

Response 1: EPA disagrees with the commenter's assertion that monitoring and dispersion modeling are needed for these two sources before EPA can approve South Carolina's SIP submittal as meeting the interstate transport requirements in CAA section 110(a)(2)(D). There is nothing in this section of the CAA suggesting that monitoring or dispersion modeling is legally required to evaluate good neighbor SIPs, and EPA has previously found that a weight of evidence (WOE) approach is sufficient to determine whether or not a state satisfies the good neighbor provision. 4

EPA continues to believe that the WOE analysis provided in the NPRM is adequate to determine the potential downwind impact from South Carolina to neighboring states. EPA's analysis includes the following factors: (1) SO 2 air dispersion modeling results for sources within 50 kilometers (km) of South Carolina's border both within the State and in neighboring states, (2) SO 2 emissions trends for sources in South Carolina, (3) SO 2 ambient air quality for monitors for sources within 50 km of South Carolina's border both within the State and in neighboring states; and (4) South Carolina's statutes and SIP- approved regulations and federal regulations that address SO 2 emissions. As part of its WOE analysis, EPA performed a qualitative evaluation to assess whether SO 2 emissions from Magnolia and WestRock are impacting North Carolina, the only neighboring state within 50 km of these sources. Because EPA does not have monitoring or modeling data for these two sources, EPA evaluated their 2017 SO 2 emissions, distances from the South Carolina border, and distances from sources in North Carolina with SO 2 emissions greater than 100 tons per year (tpy) in 2017 and not subject to EPA's Data Requirements Rule (DRR)  5 as summarized in Table 5 of the NPRM and found that this information supports EPA's proposed determination that South Carolina has met the good neighbor provision for the 2010 1-hour SO 2 NAAQS. 6 The commenter did not provide a technical analysis that contradicts EPA's proposed determination that sources in South Carolina such as Magnolia or Westrock will not significantly contribute to nonattainment or interfere with maintenance in another state. Therefore, EPA continues to believe that the Agency's analysis of these and other South Carolina sources in the NPRM, weighed along with other WOE factors described in the NPRM, support EPA's conclusion that South Carolina has satisfied the good neighbor provision for the 2010 1-hour SO 2 NAAQS.

Comment 2: Two commenters expressed concerns regarding the modeling analysis for Resolute FP US Inc.—Catawba Mill (Resolute). One commenter questions the use of 2012-2014 actual emissions in the modeling of Resolute. 7 The commenter states that “EPA is hiding behind 5-7 year old data” and that EPA should perform the modeling using maximum allowable potential emissions before concluding that the source, located 7 km from the North Carolina border, “does not contribute to violations in the neighboring state.” Another commenter questions the use of a modeling domain for Resolute that extends 4 km into North Carolina and mentions that EPA should perform “additional modeling to confirm that an extended modeling domain would not show an even higher modeled concentration farther into the state of North Carolina.”

Response 2: As discussed above, the good neighbor provision does not require modeling to determine whether a state contributes significantly to nonattainment or interferes with maintenance of a specific NAAQS in another state. EPA used a WOE analysis to evaluate South Carolina's SIP revision under the good neighbor provision and evaluated all available data, including the modeling submitted by South Carolina during the DRR process for Resolute.

As stated in the NPRM, the modeling for Resolute predicts no violations of the 2010 1-hour SO 2 NAAQS within 50 km of the South Carolina border. The modeling results show that SO 2 concentrations drop off rapidly with a predicted maximum modeled concentration of approximately 69 ppb just north of the facility and concentrations in North Carolina below approximately 18 ppb. 8 EPA continues to believe that these results, weighed along with the other WOE factors discussed in the NPRM, support EPA's proposed conclusion that sources in South Carolina do not significantly contribute to nonattainment or interfere with maintenance of the 2010 1-hour SO 2 NAAQS in any other state.

In response to the comment regarding the use of modeling with “5-7 year old data” to evaluate South Carolina's June 25, 2018, SIP submission, EPA has evaluated more recent actual SO 2 emissions data for Resolute for the years 2015-2017. 9 Resolute's 2015-2017 SO 2 emissions (2,386 tpy, 2,391 tpy, and 2,211 tpy in 2015, 2016, and 2017, respectively) are lower than the modeled 2012-2014 SO 2 emissions (4,562 tpy, 4,491 tpy, and 4,780 tpy in 2012, 2013, and 2014, respectively). Because emissions have decreased from 2012-2014 to 2015-2017, the model results may overpredict current SO 2 concentrations and therefore continue to support the Agency's conclusion that South Carolina has satisfied the good neighbor provision with respect to the 2010 1-hour SO 2 NAAQS. EPA also notes that the commenters did not provide any technical analysis contradicting EPA's proposed determination that Resolute will not significantly contribute to nonattainment or interfere with maintenance in another state.

Comment 3: A commenter notes that EPA analyzed sources that emitted more than 100 tpy of SO 2 within 50 km of the South Carolina border. The commenter states that EPA should have considered and modeled sources that emitted less SO 2 and are closer to the border and that EPA evaluated sources emitting 1 tpy when acting on good neighbor SIP revisions for Delaware and the District of Columbia.

Response 3: EPA assessed annual emissions data for non-DRR sources emitting over 100 tons of SO 2 in 2017 in South Carolina and existing dispersion modeling for DRR sources to identify the universe of sources in the State likely to be responsible for SO 2 emissions potentially contributing to interstate transport. After determining that 89 percent of South Carolina's statewide SO 2 emissions are from point sources based on 2014 emissions, EPA next focused on individual facilities which emitted above 100 tpy using the most recent year for which point source emission data was available, i.e., 2017. EPA assessed, using its best judgment, which sources could have the most serious impact on downwind states. EPA chose 100 tpy as the emissions threshold for consideration for interstate transport because South Carolina's universe of point sources was too large to evaluate every source at a lower threshold like that used in the Delaware and District of Columbia analyses. South Carolina's point sources of SO 2 emitting 100 tons or less in 2017 comprise only seven percent of the State's total SO 2 point source inventory in 2017. 10 EPA is not precluded from choosing different thresholds for evaluating interstate transport in different states because the factual circumstances vary from state to state. Furthermore, EPA notes that small sources, in particular those emitting less than 100 tpy of SO 2 , usually cannot be characterized accurately because the level of detail about the source and the data needed for such an analysis is not as often readily available as for the larger sources.

Regarding the statement about modeling, EPA notes that it did not independently model any sources as part of its evaluation of South Carolina's good neighbor SIP submission, including sources emitting more than 100 tpy of SO 2 within 50 km from the South Carolina border. EPA did, however, evaluate all available information for sources that emitted more than 100 tpy of SO 2 within 50 km of the border, including any available air dispersion modeling, and continues to believe that its WOE analysis demonstrates that South Carolina has satisfied the good neighbor provision for the 2010 1-hour SO 2 NAAQS. The commenter did not provide a technical analysis indicating that sources emitting less than or equal to 100 tpy within 50 km of the border may have downwind impacts that violate the good neighbor provision.

Comment 4: A commenter states that three sources in South Carolina ( i.e., W.S. Lee Station, McMeekin Station, and WestRock) were “able to escape nonattainment designation status” by accepting federally-enforceable permit limits “to exempt them from complying with the DRR.” The commenter states that accepting these limits does not mean that these sources are not “causing or contributing to nonattainment or maintenance” in another state and questions why EPA did not perform modeling to determine if these sources are impacting neighboring states for the 2010 1-hour SO 2 NAAQS.

Response 4: Regarding the commenter's reference to the SO 2 designations signed on December 21, 2017 (83 FR 1098), to the extent commenter is taking issue with those designations, those designations and the federally-enforceable emission limits taken to comply with the DRR are outside the scope of this action to approve South Carolina's SIP revision to address interstate transport for the 2010 1-hour SO 2 NAAQS. Regarding the comment concerning modeling, EPA does not agree that modeling is necessary to demonstrate that these sources do not significantly contribute to nonattainment or interfere with maintenance of the 2010 1-hour SO 2 NAAQS in another state. As discussed above, there is nothing in the interstate transport requirements of CAA section 110(a)(2)(D) suggesting that dispersion modeling is legally required to evaluate good neighbor SIPs, and EPA used its long-standing WOE approach to evaluate South Carolina's SIP revision under the good neighbor provision. EPA also notes that the commenter did not provide a technical analysis that contradicts EPA's proposed determination that W.S. Lee Station, McMeekin Station, and WestRock will not significantly contribute to nonattainment or interfere with maintenance in another state.

EPA is approving South Carolina's June 25, 2018, SIP submission as demonstrating that South Carolina's SIP has adequate provisions prohibiting any source or other type of emissions activity in the State from emitting any air pollutant in amounts that will contribute significantly to nonattainment or interfere with maintenance of the 2010 1-hour SO 2 NAAQS in another state.

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).

In addition, this action for South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000) because it does not have substantial direct effects on an Indian Tribe. The Catawba Indian Nation Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, EPA has determined that this rule does not have substantial direct effects on an Indian Tribe because this action is not approving any specific rule, but rather has determined that South Carolina's already approved SIP meets certain CAA requirements. EPA notes that this action 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 9, 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:

The EPA is approving certain elements of the State of New York Infrastructure State Implementation Plan (SIP) as meeting the section 110(a) infrastructure requirements of the Clean Air Act (CAA) for the following National Ambient Air Quality Standards (NAAQS or standard): 2008 Ozone, 2010 sulfur dioxide (SO 2 ), and 2012 particulate matter of 2.5 microns or less (PM 2.5 ). As explained below, the EPA has determined that the State has the necessary infrastructure, resources, and general authority to implement the standards noted above.

Section 110(a)(1) of the CAA requires states to submit for approval into the SIP a plan that provides for the implementation, maintenance, and enforcement of new or revised NAAQS within three years following the promulgation of such NAAQS. The EPA commonly refers to such state plans as “infrastructure SIPs.”

• On March 12, 2008, the EPA promulgated a revised NAAQS for ozone. 73 FR 16436 (March 27, 2008).

• On June 2, 2010), the EPA promulgated a revised primary NAAQS for SO 2. 75 FR 35520 (June 22, 2010).

• On December 14, 2012, the EPA promulgated a revised primary NAAQS for PM 2.5 for the annual standard. 78 FR 3086 (Jan. 15, 2013).

The New York State Department of Environmental Conservation (NYSDEC) submitted the following revisions to its Infrastructure State Implementation Plan (ISIP):

On August 26, 2016 (81 FR 58849), the EPA published its action on certain elements of NYSDEC's April 4, 2013 SIP submittal pertaining to the 2008 Ozone ISIP. The EPA's action addressed CAA section 110(a)(2)(D)(i)(I) which requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS (commonly referred to as prong 1), or interfering with maintenance of the NAAQS (prong 2), in any other state and CAA section 110(a)(2)(D)(i)(II) which requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to protect visibility (prong 4). The EPA disapproved 110(a)(2)(D)(i)(I) (prongs 1 and 2) and approved 110(a)(2)(D)(i)(II) (prong 4) for the 2008 Ozone NAAQS. 81 FR 58849, 58855 (August 26, 2016).

The EPA approved portions of New York's infrastructure SIP submittals for the 2008 Ozone and 2010 SO 2 NAAQS  1 pertaining to CAA sections 110(a)(2)(C), (D)(i)(II) (prong 3), and (J), including PSD interstate transport provisions. 2 81 FR 95047 (December 27, 2016).

Section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS.

Sections 110(a)(1) and (2) of the CAA require, in part, that states submit to the EPA plans to implement, maintain and enforce each of the NAAQS promulgated by the EPA. The EPA interprets this provision to require states to address basic SIP requirements including emission inventories, monitoring, and modeling to assure attainment and maintenance of the standards. By statute, SIPs meeting the requirements of section 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised standard.

The infrastructure requirements of CAA sections 110(a)(1) and (2), relevant to this action, are discussed in the following EPA guidance documents: EPA's October 2, 2007, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards;” September 25, 2009, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards;” September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (“2013 Guidance”);  3 and March 17, 2016, “Information on Interstate Transport “Good Neighbor” provision for the 2012 Fine Particulate Matter (PM) National Ambient Air Quality Standards under Clean Air Act (CAA) Section 110(a)(2)(D)(i)(I).”

The EPA reviews each infrastructure SIP submission with the applicable statutory provisions of CAA 110(a)(2). The 14 elements required to be addressed by CAA section 110(a)(2) are:

• 110(a)(2)(A): Emission limits and other control measures;

• 110(a)(2)(B): Ambient air quality monitoring/data system;

• 110(a)(2)(C): Program for enforcement of control measures and for construction or modification of stationary sources;

• 110(a)(2)(D)(i)(I) and (II): Interstate pollution transport;

• 110(a)(2)(D)(ii): Interstate and international pollution abatement;

• 110(a)(2)(E): Adequate resources and authority, conflict of interest, oversight of local governments and local authorities;

• 110(a)(2)(F): Stationary source monitoring and reporting;

• 110(a)(2)(G): Emergency powers;

• 110(a)(2)(H): Future SIP revisions;

• 110(a)(2)(I): Plan revisions for nonattainment areas (under part D);

• 110(a)(2)(J): Consultation with government officials, public notification, and PSD and visibility protection;

• 110(a)(2)(K): Air quality modeling and data;

• 110(a)(2)(L): Permitting fees;

• 110(a)(2)(M): Consultation/participation by affected local entities.

Two elements identified in section 110(a)(2) are not governed by the 3-year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather due at the time that the nonattainment area plan requirements are due pursuant to section 172 of the CAA. See 77 FR 46354 (August 3, 2012) and 77 FR 60308 (October 3, 2012, footnote 1). These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address the nonattainment permit program requirements of section 110(a)(2)(C) for 2012 PM 2.5 or the nonattainment planning requirements related to section 110(a)(2)(I) for the 2008 Ozone, 2010 SO 2, or 2012 PM 2.5 .

This action partially addresses Element D (interstate pollution transport, interstate and international pollution abatement). As mentioned in section II, the EPA previously disapproved 110(a)(2)(D)(i)(I) (prongs 1 and 2) and approved 110(a)(2)(D)(i)(II) (prong 4) for the 2008 Ozone NAAQS. 81 FR 58849 (Aug. 26, 2016). The EPA approved 110(a)(2)(D)(i)(II) (prong 3) for the 2008 Ozone and 2010 SO 2 NAAQS. 81 FR 95047 (December 27, 2016). This action addresses the remaining element D provisions for 2008 Ozone, 2010 SO 2 and 2012 PM 2.5 NAAQS, except for 110(a)(2)(D)(i)(I) (prongs 1 and 2) provisions for the 2010 SO 2 NAAQS and the 2012 PM 2.5 NAAQS, which will be addressed in a subsequent action by the EPA. Therefore, with respect to element D, this action addresses:

• 110(a)(2)(D)(i)(II) (prong 3) for the 2012 PM 2.5 NAAQS;

• 110(a)(2)(D)(i)(II) (prong 4) for the 2010 SO 2 NAAQS and 2012 PM 2.5 NAAQS; and

• 110(a)(2)(D)(ii) for 2008 Ozone NAAQS, 2010 SO 2 NAAQS and 2012 PM 2.5 NAAQS.

The discussion of the EPA's approach to the review of infrastructure SIP submissions is detailed in the “Technical Support Document for the EPA's proposed Rulemaking for the New York State Implementation Plan Revision for Meeting the Infrastructure Requirements in the Clean Air Act” dated 2019 (TSD). The TSD is available in the electronic docket (EPA-R02-OAR-2018-0511) at www.regulations.gov. For additional information, the reader is also referred to EPA's Proposed Rule. 84 FR 27559 (June 13, 2019).

Whenever the EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make Infrastructure SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), the EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. The EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. 4 Unless otherwise noted below, we are following that existing approach in acting on these submissions. In addition, in the context of acting on such infrastructure submissions, the EPA evaluates the submitting state's SIP for facial compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 5 The EPA has other explicit Clean Air Act authority to address issues concerning a state's implementation of its SIP.

NYSDEC submitted the following SIP submittals which address the infrastructure requirements for the identified NAAQS:

New York's section 110 submittals demonstrate how the State, where applicable, has a plan in place that meets the requirements of section 110 for the 2008 Ozone, 2010 SO 2 , and 2012 PM 2.5 NAAQS. The plans reference the current New York Air Quality SIP, the New York Codes, Rules and Regulations (NYCRR), the New York Environmental Conservation Law (ECL) and the New York Public Officer's Law (POL). The NYCRR, ECL and POL referenced in the submittal are publicly available. New York's SIP and air pollution control regulations that have been previously approved by the EPA and incorporated into the New York SIP can be found at 40 CFR 52.1670 and are posted on the internet at https://www.epa.gov/sips-ny.

The EPA has determined that New York has the necessary infrastructure, resources, and general authority to address certain elements of the section 110(a)(1) and (2) infrastructure provisions for the 2008 Ozone, 2010 SO 2 , and 2012 PM 2.5 NAAQS. In summary, the EPA is approving the following elements and sub-elements of New York's Infrastructure SIP submittal for 2008 Ozone, 2010 SO 2 , and 2012 PM 2.5 NAAQS (except as indicated): 110(a)(A) [emission limits and other control measures]; 110(a)(2)(B) [ambient air quality monitoring/data system]; 110(a)(2)(C) [program for enforcement of control measures] for the 2012 PM 2.5 NAAQS only; 110(a)(2)(D)(i)(II) [interstate transport], Prong 3 for 2012 PM 2.5 NAAQS, and Prong 4 for the 2010 SO 2 NAAQS and the 2012 PM 2.5 NAAQS; 110(a)(2)(D)(ii) [interstate and international pollution abatement]; 110(a)(2)(E)[adequate resources, state boards/conflict of interest, oversight of local governments and local authorities];110(a)(2)(F) [stationary source monitoring]; 110(a)(2)(G)[emergency power]; 110(a)(2)(H) [future SIP revisions]; 110(a)(2)(J) [consultation with government official, public notification, and PSD for the 2012 PM 2.5 NAAQS only]; 110(a)(2)(K) [air quality and modeling/data]; 110(a)(2)(L) [permitting fees]; and 110(a)(2)(M) [consultation/participation by affected local entities].

The EPA is not acting on New York's submittal for 2012 PM 2.5 as it relates to nonattainment provisions, including the nonattainment NSR program required by part D in section 110(a)(2)(C) and is not acting on New York's submittals for 2008 Ozone, 2010 SO 2 and 2012 PM 2.5 as they relate to the measures for nonattainment required by part D in section 110(a)(2)(I), because the State's Infrastructure SIP submittals do not include nonattainment requirements related to these 2 elements. The EPA is also not acting on the visibility protection portion of element J for the 2012 PM 2.5 submittal.

On June 13, 2019 (84 FR 27559), EPA proposed to approve certain elements of New York's ISIP revisions, submitted to demonstrate that the State meets the requirements of the CAA for the 2008 Ozone; 2010 SO 2 and 2012 PM 2.5 NAAQS. EPA received an erroneously filed comment from one commenter and an adverse comment from an anonymous commenter, in response to the June 13, 2019 proposed action.

Comment: A comment was submitted on EPA's proposed rule to deny New York's 126 petition submitted by Louisville Gas and Electric and Kentucky Utilities Companies.

EPA Response: These comments were submitted to the Docket for this action but are not applicable to this action and are filed in error. The comments will be addressed separately in the EPA's Response to Comments on the Proposed Action on Section 126(b) Petition from New York (Docket ID No. EPA-HQ-OAR-2018-0170).

Comment: EPA must provide a complete record that New York has adequate resources and personnel to implement the SIP. EPA must audit NYSDEC to ensure proper funding and personnel to implement the SIP.

EPA response: EPA disagrees with this comment. An audit of NYSDEC is not required. CAA Section 110(a)(2)(E)(i) (Element E) requires that the State provide “necessary assurances” that it will have adequate funding and personnel to implement the relevant NAAQS. As stated in the proposal, in the context of acting on infrastructure submissions, EPA evaluates the submitting state's SIP for facial compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 6 The EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

The requirements of Element E, that the State have adequate resources and personnel, are clearly demonstrated in New York's three ISIP submittals dated April 4, 2013 (for the 2008 ozone ISIP), October 3, 2013 (for the 2010 SO 2 ISIP), and November 30, 2016 (for the 2012 PM 2.5 ISIP), as detailed by the EPA in its technical support document (TSD) at pages 11-12, included in this docket. The submittals indicated that NYSDEC's Division of Air Resources (DAR) has over 200 full-time positions and receives both operating and capital funding. As New York's submittals indicates, operating funds are allocated to DAR annually and are used for daily administrative expenses. These expenses include salaries, fringe benefit, and indirect and non-personnel services such as travel, supply and equipment costs. Indirect costs are, in turn, allocated to other Departments or divisions that support DAR activities. DAR is allocated operating funds from five sources: General Fund, Utility Environmental Regulatory Account, Co-operative Agreements ( i.e., EPA section 103 and 105 grants) and the Clean Air Fund, which is comprised of the Title V and Mobile Source accounts.

Capital funds are allocated to the DAR at the discretion of the New York State legislature and are used for the financing or acquisition of capital facilities such as the construction of an air monitoring site. DAR is allocated Capital funds from three sources: General Fund, Mobile Source Account and Rehabilitation and Improvement.”  7

Therefore, the EPA has determined that the NYSDEC has provided necessary assurances that it has sufficient funding and personnel to meet the requirements of section 110(a)(2)(E)(i) for the 2008 ozone, 2010 SO 2 and 2012 PM 2.5 NAAQS.

Comment: New York does not have adequate resources to implement a Regional Haze Program and EPA must impose a FIP on New York for two sources which commenter does not identify.

EPA Response: EPA disagrees that New York lacks adequate resources to implement a Regional Haze Program. As noted above, Element E, specifically CAA Section 100(a)(2)(E)(i), does not require an audit of resources and personnel. New York's Regional Haze plan was approved into the SIP for 18 facilities. 77 FR 51915 (Aug. 28, 2012). Only two facilities, Danskammer Generating Station and Roseton Generating Station, were subject to the Federal Implementation Plan (FIP). Specifically, New York's SO 2, NO X and PM Best Available Retrofit Technology (BART) determinations and emissions limits for Danskammer Generating Station, Unit 4, and New York's SO 2 BART determinations and emissions limit for Roseton Generating Station, Units 1 and 2, were subject to the FIP. EPA's FIP determination did not cite resources or personnel as a basis for the FIP, rather, the State had provided a regional haze SIP with supporting analysis, but EPA disagreed with the specific BART determinations with regard to specific pollutants at specific units at these facilities that the State had submitted. 77 FR 51915 (Aug. 28, 2012). Moreover, for each of the sources, the EPA subsequently approved a source-specific SIP revision and withdrew the FIP. 82 FR 57126 (Dec. 4, 2017) (approving the SIP for Danskammer Generating Station, Unit 4) and 83 FR 6970 (Feb. 16, 2018) (approving the SIP for Roseton Generating Station, Units 1 and 2).

Comment: Elements, F, H, K, L and M: EPA does not provide any rationale for approving these elements other than to refer the reader to previous actions. EPA must review each submission on its own merits.

EPA Response: EPA reviewed and evaluated each submittal addressed in this action. As explained in the proposal (84 FR 27559) and the accompanying TSD for this rulemaking, and consistent with EPA's ISIP guidance, certain elements of the Infrastructure SIP submittals are not pollutant specific. EPA proposed to find that, for certain elements, including Elements F, H, K, L and M, the information provided in these submittals is consistent with or identical to prior submittals that addressed these specific elements. As explained in the proposal, EPA's prior actions on ISIPs included a full evaluation of the information provided by the State for each element, found the New York SIP submittal was sufficient, and approved it. New York, in each of its submittals in this action, has affirmed that the existing SIP meets the requirements of CAA sections 110(a)(1) and (2). The EPA is not aware of, and the commenter has not identified, anything about the 2008 ozone, 2010 SO 2, or 2012 PM 2.5 NAAQS that would cause New York's SIP for these elements to be insufficient. In addition, New York's submissions for the 2008 ozone, 2010 SO 2 , or 2012 PM 2.5 NAAQS identify the basis for approving Elements F, H, K, L and M, and that is detailed in the TSD for this action at pages 12-14 for Element F, page 15-16 for Element H, page 20-21 for Element K, page 21 for Element L and pages 21-22 for Element M. Accordingly, approval of the pending submittal for these elements is appropriate.

Comment: For Element H, the EPA must disapprove this element until the EPA establishes a SHL for the PM 2.5 NAAQS. In establishing the PM 2.5 NAAQS under the 1997 standard the EPA stated that no SHL was able to be established so a placeholder value was being imposed at 500.

EPA Response: Element H concerns future SIP revisions and does not relate to establishment of a significant harm level (SHL). The issue of establishment of an SHL relates to Element G (Emergency Powers). In promulgating the 2012 PM 2.5 NAAQS, EPA retained the pre-existing level of 500 micrograms per cubic meter (ug/m 3 ), 24-hour average, for the Air Quality Index (AQI) value of 500 and did not establish a significant harm (SHL) for PM 2.5. In the absence of a SHL, EPA maintains that the central components of a contingency plan would be to reduce emissions for the PM 2.5 sources at issue and to provide public communication as needed. See 2013 Guidance at pages 47-49. NYSDEC's November 2016 ISIP submittal addressing the Element G requirements for the 2012 PM 2.5 NAAQS meets the requirements of the EPA's 2013 guidance and, as explained in detail in the EPA's TSD for this ISIP submittal, is acceptable to the EPA.

Comment: The comment asserts that the EPA must review Element L with respect to permitting fees and reveal any defects at this time. The EPA cannot point to a previous approval of a similar or nearly similar submittal. EPA must audit the state's title V fee collection system to affirmatively prove that adequate fees are being collected in order to implement the title V program. The EPA cannot rely on a state claim without affirmatively confirming it.

EPA response: CAA 110(a)(2)(L) sets forth specific requirements that are in effect “until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under subchapter V [title V].” The Administrator previously approved New York's title V operating program. EPA granted interim approval to the Title V operating permit program submitted by the State of New York effective December 9, 1996. 61 FR 57589 (November 7, 1996). The final interim approval at 61 FR 57590, determines that “the State has the authority to collect sufficient fees to implement its title V program” and, at 61 FR 57592, allows the State to “issue operating permits pursuant to Title V of the Act to all major stationary sources.” See also 61 FR 63928 (Dec. 2, 1996) (correction); 40 CFR part 70, Appendix A. EPA subsequently granted full approval to New York's program, effective November 30, 2001. 66 FR 63180 (December 5, 2011). In so doing, the Administrator found that the fee program was sufficient to cover all CAA permitting, implementation, and enforcement for new and modified major sources as well as existing major sources, which is consistent with the requirements of CAA 110(a)(2)(L). Statutory and regulatory citations related to the fee aspects of New York's title V operating program are found in the TSD at p. 21. Accordingly, and consistent with EPA's ISIP guidance, reliance on the existing, EPA-approved title V fee program is sufficient to approve this element and an additional examination of that approved program is not necessary.

The EPA is approving New York's submittals as meeting the infrastructure requirements for the 2008 Ozone, 2010 SO 2 and 2012 PM 2.5 NAAQS for all section 110(a)(2) elements and sub-elements, as follows: (A), (B), (C) [enforcement measures and PSD program for major sources for 2012 PM 2.5 only], (D)(i)(II) prong 3 [for 2012 PM 2.5 only], (D)(i)(II) prong 4 [for 2010 SO 2 and 2012 PM 2.5 only], D(ii), (E), (F), (G), (H), (J) [for consultation, public notification and prevention of significant deterioration 2012 PM 2.5 only], (K), (L) and (M).

The EPA is not acting on New York's submittal for 2012 PM 2.5 as it relates to nonattainment provisions, the NSR program required by part D, in section 110(a)(2)(C) and is not acting on New York's submittals for 2008 Ozone, 2010 SO 2 and 2012 PM 2.5 NAAQS as they relate to the measures for attainment required by section 110(a)(2)(I), as part of this proposed approval because the State's infrastructure SIP submittals do not include nonattainment requirements and the EPA will act on them when, if necessary, they are submitted.

The EPA is also not acting on 110(a)(2)(D)(i)(I) provisions (prongs 1 and 2) for the 2010 SO 2 NAAQS and the 2012 PM 2.5 NAAQS, which will be addressed in a subsequent action by the EPA.

Under the Clean Air Act, 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, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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 Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

• Does not provide 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).

This rulemaking pertaining to New York's section 110(a)(2) infrastructure requirements for the 2008 Ozone NAAQS, 2012 PM 2.5 NAAQS, and 2010 SO 2 NAAQS 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 it will not impose substantial direct costs on tribal governments or preempt tribal law.

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Part 52 chapter I, title 40 of the Code of Federal Regulations is amended as follows:

On August 29, 2018, the District of Columbia Department of Energy and Environment (DOEE) submitted a SIP revision to address all the RACT requirements for VOCs set forth by the CAA under the 2008 8-hour ozone NAAQS (the 2018 RACT Submission). The District's RACT submittal for the 2008 ozone NAAQS includes: (1) Certification that for certain major sources, previously adopted VOC RACT controls in the District's SIP that were approved by EPA under the 1979 1-hour and 1997 8-hour ozone NAAQS are based on the currently available technically and economically feasible controls, and continue to represent RACT for implementation of the 2008 8-hour ozone NAAQS; (2) a listing of the Control Techniques Guidelines (CTGs) already adopted into the District's SIP, and (3) a listing of those categories of sources subject to CTGs which do not exist in the District and the location of prior negative declarations previously submitted and approved by EPA. The District's SIP submittal also includes an update to the 2002 Mobile Equipment Repair and Refinishing (MERR) rule to incorporate the Ozone Transport Commission's (OTC) 2009 Motor Vehicle and Mobile Equipment Non-Assembly Line Coating Operations regulations (MVMERR) rule adopted by the District in 2016. EPA addressed the 2009 MVMERR rule in a separate rulemaking action as it is not related to the 2008 VOC RACT SIP revision and does not impact EPA's approval. The DOEE also submitted as an amendment to the SIP-approved 2002 MERR rule the updated 2009 MVMERR rule. As previously mentioned, the 2009 MVMERR rule was addressed in a separate rulemaking action.

Ozone is formed in the atmosphere by photochemical reactions between VOCs and NO X in the presence of sunlight. In order to reduce these ozone concentrations, the CAA requires control of VOC and NO X emission sources to achieve emission reductions in moderate or more serious ozone nonattainment areas. Among effective control measures, RACT controls significantly reduce VOC and NO X emissions from major stationary sources.

RACT is defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. 1 Section 172 of the CAA sets forth general requirements for SIPs in nonattainment areas, including a requirement that SIPs must include reasonably available control measures (RACM) for attainment of the NAAQS, including emissions reductions from existing sources through adoption of RACT. CAA section 172(c)(1). Part D, subpart 2 of the CAA sets forth additional provisions for ozone nonattainment areas. CAA sections 181-185B. Sections 182(b)(2) and 182(f)(1) of the CAA require states with moderate (or worse) ozone nonattainment areas to implement RACT controls on all major stationary sources of VOC and NO X , and on source categories covered by a CTG document issued by EPA, for sources located in the nonattainment area. EPA's CTGs include recommendations on RACT controls for various VOC source categories. The CTGs typically identify a particular control level that EPA recommends as being RACT. In some cases, EPA has issued Alternative Control Techniques guidelines (ACTs), primarily for NO X source categories, which in contrast to the CTGs, only present a range for possible control options but do not identify any particular option as a recommendation for what is RACT. Section 183(b) and (c) of the CAA requires EPA to revise and update CTGs and ACTs as the Administrator determines necessary. States are required to implement RACT for the source categories covered by CTGs through the SIP.

Section 184(a) of the CAA established a single ozone transport region (OTR), comprising all or part of 12 eastern states and the District. 2 The District is part of the OTR and, therefore, must comply with the RACT requirements in section 184(b)(1)(B) and (2) of the CAA. Specifically, section 184(b)(1)(B) requires the implementation of RACT in OTR states with respect to all sources of VOC covered by a CTG. Additionally, section 184(b)(2) states that any stationary source with the potential to emit 50 tons per year (tpy) or more of VOCs shall be considered a major source and subject to the requirements which would be applicable to major stationary sources as if the area was classified as a moderate nonattainment area. Section 182(f) extends the SIP requirements for major sources of VOCs to major sources of NO X , as defined in sections 302 and 182(c), (d), and (e).

Under the 2008 8-hour ozone standard, EPA designated the District as a marginal nonattainment area. As part of the OTR, the District must, at a minimum, implement more stringent moderate area RACT requirements for: (1) All categories of VOC or NO X sources covered by a CTG; (2) all other major stationary sources of VOC or NO X located in the area. Section 182(b)(2). For the District's 2008 VOC RACT analysis, despite classification as a marginal nonattainment area, the OTR major source thresholds of 50 tpy for VOCs and 100 tpy for NO X apply. Sections 184(b)(2), 182(f)(1).

EPA has provided more substantive RACT requirements through final implementation rules for each ozone NAAQS, as well as guidance. On March 6, 2015, EPA issued its final rule for implementing the 2008 8-hour ozone NAAQS (the 2008 Ozone Implementation Rule). 80 FR 12264, codified at 40 CFR part 51, subpart AA. This rule addressed, among other things, control and planning obligations as they apply to nonattainment areas under the 2008 8-hour ozone NAAQS, including RACT and RACM. In the preamble of the proposed rule, EPA stated that RACT SIPs must contain adopted RACT regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations that there are no sources in the nonattainment area covered by a specific CTG source category. 78 FR 34178, 34192 (June 6, 2013). Stated differently, states can meet the RACT requirements associated with the 2008 ozone NAAQS either through (1) a certification that previously adopted RACT controls in their SIP approved by EPA under a prior ozone NAAQS continue to represent adequate RACT control levels for attainment of the 2008 8-hour ozone NAAQS; (2) through the adoption of new or more stringent regulations or controls that represent RACT control levels; and/or (3) a negative declaration if there are no source categories subject to certain CTGs within the nonattainment area. A certification must be accompanied by appropriate supporting information such as consideration of information received during the public comment period and consideration of new data. Adoption of new RACT regulations is more likely to occur when states have new stationary sources not covered by existing RACT regulations, or when new data or technical information indicates that a previously adopted RACT measure does not represent a currently available RACT control level.

On August 29, 2018, the DOEE submitted a SIP revision to address all the VOC RACT requirements set forth by the CAA for the 2008 8-hour ozone NAAQS. Specifically, the District's 2018 RACT Submission included: (1) A certification that for certain major sources, previously adopted VOC RACT controls in the District's SIP that were approved by EPA under the 1979 1-hour and 1997 8-hour ozone NAAQS are based on the currently available technically and economically feasible controls, and continue to represent RACT for implementation of the 2008 8-hour ozone NAAQS; (2) a listing of the CTGs already adopted into the District's SIP, and (3) a listing of those categories of sources subject to CTGs which do not exist in the District and the location of prior negative declarations previously submitted and approved by EPA.

More detailed information on the District's 2018 VOC RACT submission; as well as a detailed summary of EPA's review of the submission, can be found in the notice of proposed rulemaking (NPR) for this action published on July 11, 2019 (84 FR 33032), which is also available online at www.regulations.gov, Docket number EPA-R03-OAR-2019-0184.

After evaluating the SIP revision submittal, EPA concluded that the District's SIP revision satisfied the 2008 8-hour ozone NAAQS RACT requirements for VOC through (1) certification that previously adopted RACT controls in the District's SIP for major, non-CTG VOC sources that were approved by EPA under the 1-hour ozone and 1997 8-hour ozone NAAQS continue to be based on the currently available technically and economically feasible controls, and that they continue to represent RACT; (2) a listing identifying those CTGs which the District has already adopted into its SIP, and (3) a listing of the negative declarations submitted by the District for those source categories covered by CTGs that do not exist in the District. On July 11, 2019 (84 FR 33032), EPA published an NPR for the District's SIP revision. EPA received one comment, which is addressed in Section III below.

EPA received comments from one anonymous commenter during the comment period for the proposed rulemaking action.

Comment #1: The commenter stated: “Did EPA actually review the regulations listed in table 1 for the control techniques guidance requirements or is EPA just saying that because these regulations were previously certified EPA doesn't have to review these regulations anymore? EPA should review every regulations the district lists to make sure the district still enforces these rules and that the rules continue to meet the reasonably available control technology requirements listed in the CTG to this day as well as make sure the district's regulations are identical to the regulations approved into the state's plan. The district periodically reevaluates it's regulations and makes changes as required by their laws so EPA needs to be very careful with what the district says it's regulations are meeting.”

Response #1: EPA does not agree with the commenter's concerns. As noted in the NPR published on July 11, 2019 (84 FR 33032), and the associated Technical Support Document included in the docket, EPA has reviewed the District's 2018 RACT submission, including all associated regulations and tables, and concluded that the District has met the VOC RACT requirements for the 2008 8-hour ozone NAAQS as set forth by sections 182(b) and 184(b)(2) of the CAA. Therefore, this revision will help the District attain and maintain the NAAQS for ozone. The District certified that the regulations, under Title 20 (Environment), District Municipal Regulations (DCMR) Subtitle A (Air Quality), Chapter 7—Volatile Organic Compounds, which contains the VOC RACT controls previously approved by EPA into the SIP under the 1-hour and 1997 8-hour ozone NAAQS, continue to meet the RACT requirements for the 2008 8-hour ozone NAAQS for major stationary sources and CTG covered sources of VOCs.

First, EPA did review the District's regulations cited in Table 1, to ensure that every CTG and ACT identified as having been adopted by the District is still codified in the District's regulations.

Second, Table 1 of the District's SIP submission lists the date when EPA approved each SIP submission requesting approval for an adopted CTG or ACT. EPA evaluated the District's adopted regulations to ensure they conformed to the CTGs or ACTs at the time that EPA approved a SIP revision adopting a CTG or ACT. Moreover, if the District has changed any of its RACT regulations following EPA's approval of those CTGs or ACTs as part of the SIP, the version of the District's regulations which were approved into the SIP by EPA are still enforceable by EPA and the public.

Finally, EPA did not review in this action the District's enforcement of its currently-adopted regulations. EPA has authority to enforce any requirement of an EPA-approved SIP, See CAA section 113, and therefore has concurrent enforcement authority over those regulations which are in the District's SIP. Furthermore, EPA is not aware of any failure of the District to ensure that the RACT regulations are being implemented.

Comment #2: The commenter also stated: “Under Table 2 the district says there are no fixed roof tanks that store petroleum products but a simple look at Google Maps shows the Ronald Reagan Nation Airport has several fixed roof tanks for storage of petroleum products. Did EPA actually review this table and make sure there were no sources subject to these control techniques guidance documents or did EPA just rely on the district's thinly stretched staff to make sure they don't have sources subject to every guidance document? EPA must do it's own independent research and come to the same conclusion as the district.”

Response # 2: Regarding commenter's concern about the fixed roof tanks at Ronald Reagan National Airport, EPA notes that the tanks and airport are located in Arlington, Virginia and therefore are not within the District's jurisdiction. Also, EPA did review Tables 1 and 2 to determine if the District made negative declarations for any CTG or ACT sources that were likely to be within the District. Many of the CTGs in Table 1 and ACTs in Table 2 are aimed at controlling emissions from large manufacturing facilities, such as shipbuilding, refinery operations, manufacture of metal furniture, manufacture of rubber tires, etc. These kind of manufacturing facilities would be known to EPA and the District Department of Energy and Environment, notwithstanding any perceived shortage of staff. EPA CAA enforcement personnel inspect facilities in the District for compliance with all CAA requirements and are familiar with the types of air emission sources located in the District. In response to this comment, EPA Region 3 air enforcement personnel reviewed Tables 1 and 2 in the SIP submission and did not identify any sources covered by a negative declaration that actually exist in the District. In sum, EPA did not identify any sources subject to CTGs or ACTs in the District for which the District submitted a negative declaration, and the commenter did not identify any such sources.

EPA is approving the District of Columbia's August 29, 2018 SIP revision that satisfies the VOC RACT requirements under the 2008 8-hour ozone NAAQS.

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 it is not a significant action 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 9, 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, which approves the District's 2008 8-hour ozone RACT SIP revision, 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. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0561 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before December 9, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0561, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of December 21, 2018 (83 FR 65660) (FRL-9985-67), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 8E8686) by IR-4, IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of indaziflam, N-[(1R,2S)-2,3-dihydro-2,6-dimethyl-1H-inden-1-yl]-6-(1-fluoroethyl)-1,3,5-triazine-2,4-diamine, including its metabolites and degradates, in or on the raw agricultural commodities Fruit, tropical and subtropical, edible peel, group 23 at 0.01 ppm and Fruit, tropical and subtropical, inedible peel, group 24 at 0.01 ppm. The petition also requested to amend 40 CFR 180.653 by removing the established tolerance for residues of indaziflam in or on the raw agricultural commodity Fruit, tropical and subtropical, small fruit, edible peel, subgroup 23A at 0.01 ppm. That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Although not requested, EPA is removing the tolerance for “banana” since it is covered by the new group 24 tolerance. Also, the tolerance expression is being modified as well. The reasons for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for indaziflam including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with indaziflam follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Metabolism studies with rats indicate that indaziflam is rapidly and completely (>90%) absorbed by the oral route, although absorption may become saturated at higher doses. Following absorption, indaziflam is distributed to multiple tissues, with the highest levels found in the liver, skin, and thyroid. Metabolism of indaziflam was extensive and occurred primarily via oxidation to form carboxylic acid and hydroxylated metabolites. Based on in vivo dermal absorption data from rats and comparative in vitro absorption data from rat and human skin, dermal absorption for humans is estimated to be 7.3%.

The nervous system is the major target for toxicity in rats and dogs. Evidence of neurotoxicity ( e.g., decreased motor activity, clinical signs, and/or neuropathology) was observed in both species throughout the database, which included the dog subchronic and chronic toxicity studies; the rat acute, subchronic, and developmental neurotoxicity (DNT) studies; the rat two-generation reproduction study; the rat chronic toxicity study; and the rat combined carcinogenicity/chronic toxicity study. In repeated-dose studies, the dog was the more sensitive species, showing the lowest no observed adverse effects levels (NOAELs) and lowest observed adverse effects levels (LOAELs) among all available studies, based on neuropathology (degenerative nerve fibers in the brain, spinal cord, and sciatic nerve). At higher doses, three dogs in the subchronic study were prematurely terminated due to excessive clinical signs including ataxia, tremors, decreased pupil response, seizures, and other findings.

In the rat, a marginal decrease in motor/locomotor activity was observed in females in the acute neurotoxicity study. Decreases in motor/locomotor activity were also seen in the subchronic neurotoxicity study in females and in the DNT study in male offspring at post-natal day (PND) 21. Clinical signs of neurotoxicity were observed in the acute, subchronic, and developmental neurotoxicity studies and consisted primarily of tremors, changes in activity and reactivity, repetitive chewing, dilated pupils, and oral, perianal, and nasal staining. Similar clinical signs of neurotoxicity were observed in the 2-generation reproduction study, the rat chronic toxicity study, and the combined rat carcinogenicity/chronic toxicity study. Neuropathology findings were also observed in the rat manifested as focal/multifocal vacuolation of the median eminence of the brain and the pituitary pars nervosa and degenerative nerve fibers in the Gasserian ganglion, sciatic nerve, and tibial nerve. Evidence of neurotoxicity was not seen in the mouse following subchronic or chronic exposure.

Other organs affected by indaziflam in mice and rats included the kidney, liver, thyroid, stomach, seminal vesicles, and ovaries. Effects on the kidney were observed following chronic exposure in rats and mice while effects on the liver were observed following chronic exposure in the rat. Effects on the thyroid were only observed in multiple dose rat studies and usually in the male only. Increased thyroid stimulating hormone (TSH) measured at 3 and 14 weeks in the 90-day and 1-year studies showed an increase in males at week 3. Histopathological alterations (thyroid follicular cell hypertrophy at 90 days and 1 year, as well as colloid alterations at chronic exposure times) were observed, but no increases in thyroid weight were noted. Thyroid histopathology was observed at a lower dose in the two-year study, compared to the 90-day and 1-year studies. Chronic exposures also led to atrophied or small seminal vesicles in male rats and glandular erosion/necrosis in the stomach and blood-filled ovarian cysts/follicles in female mice. In rats, effects observed on the liver, thyroid, kidney, and seminal vesicles occurred at doses that were similar to or higher than those that produced neurotoxicity. However, these effects in the rat occurred at higher doses than those at which neurotoxicity was observed in the dog. Decreased body weight was also observed in most subchronic and chronic studies following oral exposure to indaziflam. There was no evidence of immunotoxicity in the available studies, which included a guideline immunotoxicity study in the rat. No systemic effects were observed in the rat following a 28-day dermal exposure period.

Since the previous assessment, the maternal findings in the rat developmental toxicity study have been revised because the decreases in maternal weight gain and food consumption did not result in reduced mean maternal body weight at any dose tested and no other maternal findings were reported. Decreased mean fetal weight was observed at the highest dose tested, indicating increased quantitative susceptibility. However, no evidence of increased quantitative or qualitative susceptibility was seen in developmental toxicity studies in rabbits, a developmental neurotoxicity study in rats, or in a 2-generation reproduction study in rats. No developmental effects were observed in rabbits up to maternally toxic dose levels. Decreased pup weight and delays in sexual maturation (preputial separation in males and vaginal patency in females) were observed in the rat two-generation reproductive toxicity study, along with clinical signs of toxicity, at a dose causing parental toxicity that included coarse tremors, renal toxicity, and decreased weight gain. In the developmental neurotoxicity study, transiently decreased motor activity (PND 21 only) in male offspring was observed and was considered a potential neurotoxic effect. It was observed at a dose that also caused clinical signs of neurotoxicity along with decreased body weight in maternal animals.

Indaziflam showed no evidence of carcinogenicity in the two-year dietary rat and mouse bioassays. All genotoxicity studies that were conducted on indaziflam were negative.

Specific information on the studies received and the nature of the adverse effects caused by indaziflam as well as the NOAEL and the LOAEL from the toxicity studies can be found at http://www.regulations.gov in the document titled “Indaziflam—Aggregate Human Health Risk Assessment of the Proposed New Use on Lowbush Blueberry, and Crop Group Expansions to Tropical and Subtropical Fruit, Edible Peel, Group 23 and Tropical and Subtropical Fruit, Inedible Peel, Group 24” on pages 29-39 in docket ID number EPA-HQ-OPP-2018-0561.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticide.

A summary of the toxicological endpoints for indaziflam used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to indaziflam, EPA considered exposure under the petitioned-for tolerances as well as all existing indaziflam tolerances in 40 CFR 180.653. EPA assessed dietary exposures from indaziflam in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for indaziflam. In estimating acute dietary exposure, EPA used 2003-2008 food consumption information from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, the acute assessment was based on tolerance-level residues and 100 percent crop treated (PCT).

ii. Chronic exposure. In estimating chronic dietary exposure, EPA used 2003-2008 food consumption information from the USDA's NHANES/WWEIA. As to residue levels in food, the chronic assessment was based on tolerance-level residues and 100 PCT.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that indaziflam does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue estimates or PCT information in the dietary assessment for indaziflam. Tolerance level residues and 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for indaziflam in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of indaziflam. Further information regarding EPA drinking water models used in pesticide exposure assessments can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Residues of concern in drinking water are indaziflam, triazine indanone, indaziflam-carboxylic acid, indaziflam-olefin, indaziflam-hydroxyethyl, and fluoroethyl diaminotriazine (FDAT). With the exception of FDAT, all of the metabolites are assumed to have comparable toxicity to the parent due to structural similarity ( i.e., both rings intact). However, FDAT, a single-ring metabolite, is not expected to be more toxic than the parent indaziflam based on FDAT's non-neurotoxic mode of action. The Agency calculated total indaziflam estimated drinking water concentrations (EDWCs) for residues of concern that are structurally similar to indaziflam ( i.e., indaziflam, triazine-indanone, indaziflam-carboxylic acid, indaziflam-hydroxyethyl, and indaziflam-olefin), and separate EDWCs for total FDAT, including its fluoroethyl-triazinanedione (ROI1) degradate. The Agency combined the total indaziflam and total FDAT EDWCs for use in the dietary assessments.

Based on the Pesticide in Water Calculator (PWC), the EDWCs of combined residues of indaziflam for acute exposures are estimated to be 84 parts per billion (ppb) for surface water and 3.7 ppb for ground water, and for chronic exposures are estimated to be 26 ppb for surface water and 3.7 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the water concentration value of 84 ppb was used to assess the contribution to drinking water. For the chronic dietary risk assessment, the water concentration value of 26 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Indaziflam is currently registered for the following uses that could result in residential exposures: Turf, gardens, and trees. EPA assessed residential exposure using the following assumptions: Short-term dermal and inhalation handler exposure is expected for adults as a result of applying products containing indaziflam to lawns/turf and gardens/trees using a variety of application equipment. Short-term post-application dermal exposure is expected for adults, children 11 to less than 16 years old, and children 6 to less than 11 years old as a result of playing, mowing, and/or golfing on treated turf. Short-term dermal and incidental oral exposure (hand to mouth, object to mouth, incidental soil ingestion) is expected for children 1 to less than 2 years old as a result from playing on treated turf/lawns. Lastly, short-term post-application dermal exposure is expected for adults and children 6 to less than 11 years old as result of application to gardens and trees.

The Agency selected only the most conservative, or worst case, residential adult and child scenarios to be included in the aggregate estimates, based on the lowest overall MOE ( i.e., highest risk estimates). The worst-case residential exposure scenario for both adults and children resulted from short-term dermal and incidental oral (for children only) post-application exposure to treated turf. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found indaziflam to share a common mechanism of toxicity with any other substances, and indaziflam does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that indaziflam does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. Since the previous assessment, the maternal findings in the rat developmental toxicity study have been revised because the decreases in maternal weight gain and food consumption did not result in reduced mean maternal body weight at any dose tested and no other maternal findings were reported. Decreased mean fetal weight was observed at the highest dose tested, indicating increased quantitative susceptibility. However, no evidence of increased quantitative or qualitative susceptibility was seen in developmental toxicity studies in rabbits, a developmental neurotoxicity study in rats, or in a 2-generation reproduction study in rats. No developmental effects were observed in rabbits up to maternally toxic dose levels. Decreased pup weight and delays in sexual maturation (preputial separation in males and vaginal patency in females) were observed in the rat two-generation reproductive toxicity study, along with clinical signs of toxicity, at a dose causing parental toxicity that included coarse tremors, renal toxicity and decreased weight gain. In the developmental neurotoxicity study, transiently decreased motor activity (PND 21 only) in male offspring was observed and was considered a potential neurotoxic effect. It was observed at a dose that also caused clinical signs of neurotoxicity along with decreased body weight in maternal animals.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for indaziflam is complete.

ii. Evidence of neurotoxicity was observed in dogs and rats throughout the database, which included the dog subchronic toxicity study; the rat subchronic toxicity; the rat acute, subchronic, and developmental neurotoxicity screening batteries; the rat two-generation reproduction study; the rat chronic toxicity study; and the rat combined carcinogenicity/chronic toxicity study. Evidence of neurotoxicity was manifested as neuropathology in dogs and as decreased motor activity and clinical signs ( e.g., tremors) in rats. Evidence of neurotoxicity was the most consistent effect (seen in dogs and rats), the most sensitive toxicological finding (based on neuropathology in dogs) and is being used as the basis for the risk assessment.

iii. No developmental effects were observed in rabbits up to maternally toxic dose levels. Offspring effects in the DNT study in rats and multi-generation toxicity studies only occurred in the presence of maternal toxicity and were not considered more severe than the parental effects. However, decreased fetal weight was observed in the rat developmental toxicity study in the absence of adverse maternal effects. Therefore, the Agency concluded that there is evidence of increased quantitative susceptibility to rat fetuses exposed in utero to indaziflam. In all studies, clear NOAELs/LOAELs were identified for maternal/parental and fetal/offspring effects.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to indaziflam in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by indaziflam.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to indaziflam will occupy 19% of the aPAD for all infants less than 1 year old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to indaziflam from food and water will utilize 7.8% of the cPAD for all infants less than 1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of indaziflam is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Indaziflam is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to indaziflam. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,400 for adults and 580 for children 1 to less than 2 years old. Because EPA's level of concern for indaziflam is an MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

An intermediate-term adverse effect was identified; however, indaziflam is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for indaziflam.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, indaziflam is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to indaziflam residues.

Adequate enforcement methodology (liquid chromatography with tandem mass spectrometry detection (LC/MS/MS) method (DH-003-P07-02) for fruit and nut tree matrices for indaziflam and FDAT) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established any MRLs for indaziflam.

Although not requested, EPA is also removing the existing tolerance for “banana” because it is superseded by the new crop group 24 tolerance. Also, EPA is amending the tolerance expression for indaziflam to correct the residues that should be measured in determining compliance with the established tolerance levels. The Agency has determined that residues of the FDAT metabolite should be aggregated with residues of indaziflam when evaluating compliance with established tolerance levels. This revision does not require any changes in tolerance levels because those tolerance levels were established based on aggregated residues of FDAT and indaziflam. In accordance with its policy to improve the consistency and clarity of its tolerance expressions, EPA is revising the tolerance expression in this rulemaking.

Therefore, tolerances are established for residues of indaziflam in or on Fruit, tropical and subtropical, edible peel, group 23 at 0.01 ppm and Fruit, tropical and subtropical, inedible peel, group 24 at 0.01 ppm.

Additionally, the existing tolerances for both the tropical and subtropical, small fruit, edible peel, subgroup 23A and banana are removed as unnecessary due to the establishment of the above tolerances.

Lastly, the tolerance expression in paragraph (a) is modified to read as follows: “General. Tolerances are established for residues of the herbicide indaziflam, N -[(1R,2S)-2,3-dihydro-2,6-dimethyl-1 H -inden-1-yl]-6-(1-fluoroethyl)-1,3,5-triazine-2,4-diamine, including its metabolites and degradates, in or on the commodities in the following table. Compliance with the tolerance levels specified in the table below is to be determined by measuring only indaziflam and FDAT, 6-[(1 R )-1-fluoroethyl]-1,3,5-triazine-2,4-diamine, calculated as the stoichiometric equivalent of indaziflam, in or on the commodity.”

This action establishes and modifies tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

A. What changes to North Carolina's hazardous waste program is EPA authorizing with this action?

On June 4, 2019, North Carolina formally requested authorization of changes to its hazardous waste management program in accordance with 40 CFR 271.21. 1 EPA now makes a final decision that North Carolina's hazardous waste program revisions that are being authorized are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. For a list of State rules being authorized with this final authorization, please see the proposed rule published in the August 23, 2019 Federal Register at 84 FR 44266.

EPA received one comment from a private citizen (“Commenter”) on its August 23, 2019 proposed authorization of North Carolina's hazardous waste program revisions. The comment is provided in the docket for this final action. See Docket ID No. EPA-R04-RCRA-2019-0425 at www.regulations.gov. A summary of the comment and EPA's response is provided below.

Comment: The Commenter supports North Carolina's program revisions and contends that the proposed State requirements should be authorized by the EPA so long as they are “up to code” with Federal requirements. The Commenter states that all of the State's proposed amendments should be authorized as long as they are “equally stringent or more stringent than the Federal standards.”

Response: As discussed in EPA's August 23, 2019 proposed rule (84 FR 44266), the amendments for which the State is seeking authorization are already effective and enforceable as a matter of State law. The effect of EPA's authorization decision is to make these changes part of the federally authorized State hazardous waste program and therefore federally enforceable. North Carolina will continue to have primary enforcement authority and responsibility for its State hazardous waste program within the State of North Carolina. EPA has reviewed all of North Carolina's changes and determined that they are equivalent to, consistent with, and no less stringent than the Federal program. As discussed in Section G of the proposed rule, EPA has also concluded that some provisions of North Carolina's amended regulation are more stringent than the Federal program. These more stringent requirements will also become part of the federally enforceable RCRA program in North Carolina. With this final authorization, EPA continues to support and is proceeding with Federal authorization of North Carolina's program revisions.

Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not codifying the authorization of North Carolina's revisions at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart II, for the authorization of North Carolina's program changes at a later date.

This final authorization revises North Carolina's authorized hazardous waste management program pursuant to Section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. For further information on how this authorization complies with applicable executive orders and statutory provisions, please see the proposed rule published in the August 23, 2019 Federal Register at 84 FR 44266. 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 document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final action will be effective October 10, 2019.

I. What does this technical correction do?

EPA issued a final rule in the Federal Register of August 20, 2019 (84 FR 43266) (FRL-9994-72) for significant new uses for 145 chemical substances that were the subject of PMN notices. EPA included the wrong Chemical Abstracts Service (CAS) Registry Numbers for four of the chemical substances listed in the significant new use rules (SNURs) codified in 40 CFR 721.11053 (PMN P-17-33 and P-17-87), 40 CFR 721.11054 (PMN P-17-88) and 721.11055 (PMN P-17-101). This action corrects these errors as follows:

• In Table 1 to 40 CFR 721.11053—Halogenated Sodium Benzoate Salts, the CAS number for PMN P-17-33 is corrected from 6654-64-4 to 490-97-1 and the CAS number for PMN P-17-87 is corrected from 938142-13-2 to 1938142-13-2.

• In Table 1 to 40 CFR 721.11054—Halogenated Benzoic Acids, the CAS number for PMN P-17-88 will be corrected from 11007-16-5 to 1007-16-5.

• In Table 1 to 40 CFR 721.11055—Halogenated Benzoic Acid Ethyl Esters, the CAS number for PMN P-17-101 is corrected from 351354-50-2 to 139911-28-7.

Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment. Correcting the wrong CAS Registry numbers listed in the August 20, 2019 SNUR is necessary for the proper identification of the chemical substances. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

No. For a detailed discussion concerning the statutory and Executive Order review, refer to Unit XII. of the August 20, 2019 final rule.

Pursuant to the CRA (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR part 721 is corrected as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) does not apply.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

Atlantic shark fisheries are managed under the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and implementing regulations (50 CFR part 635) issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ).

Atlantic shark fisheries have separate regional (Gulf of Mexico and Atlantic) quotas for all management groups except those for blue shark, porbeagle shark, pelagic sharks (other than porbeagle or blue sharks), and the shark research fishery for LCS and sandbar sharks. The boundary between the Gulf of Mexico region and the Atlantic region is defined at § 635.27(b)(1) as a line beginning on the East Coast of Florida at the mainland at 25°20.4′ N lat, proceeding due east. Any water and land to the north and east of that boundary is considered, for the purposes of setting and monitoring quotas, to be within the Atlantic region. This inseason action only affects the aggregated LCS and hammerhead shark management groups in the Atlantic region.

Under § 635.24(a)(8), NMFS may adjust the commercial retention limits in the shark fisheries during the fishing season. Before making any adjustment, NMFS must consider specified regulatory criteria (see § 635.24(a)(8)(i) through (vi)). After considering these criteria as discussed below, NMFS has concluded that increasing the retention limit of the Atlantic aggregated LCS and hammerhead management groups for directed shark limited access permit holders in the Atlantic region will allow use of available aggregated LCS and hammerhead shark management group quotas and will provide fishermen throughout the region equitable fishing opportunities for the rest of the year. Therefore, NMFS is increasing the commercial Atlantic aggregated LCS and hammerhead shark retention limit in the Atlantic region from 45 to 55 LCS other than sandbar shark per vessel per trip.

NMFS considered the inseason retention limit adjustment criteria listed at § 635.24(a)(8)(i) through (vi), which includes:

• The amount of remaining shark quota in the relevant area, region, or sub-region to date, based on dealer reports.

Based on dealer reports through September 13, 2019, 34.5 metric tons (mt) dressed weight (dw) (76,011 lb dw), or 20 percent, of the 168.9 mt dw shark quota for aggregated LCS and 9.3 mt dw (20,479 lb dw), or 34 percent, of the 27.1 mt dw shark quota for the hammerhead management groups have been harvested in the Atlantic region. This means that approximately 80 percent of the aggregated LCS quota remains available and approximately 66 percent of the hammerhead shark quota remains available. NMFS took action on April 2, 2019, to reduce the retention limit from 25 to 3 after considering the relevant inseason adjustment criteria, particularly the need for all regions to have an equitable opportunity to utilize the quota (84 FR 12524). NMFS increased the retention limit to 36 LCS other than sandbar sharks per vessel per trip on June 25, 2019 (84 FR 29808), and increased the retention limit to 45 LCS other than sandbar sharks per vessel per trip on August 18, 2019 (84 FR 42827), to promote use of the available quota.

• The catch rates of the relevant shark species/complexes in the region or sub-region, to date, based on dealer reports.

Based on the current commercial retention limit and average catch rate of landings data from dealer reports, the amount of Atlantic aggregated LCS and hammerhead shark quota available is high, while harvest in the Atlantic region on a daily basis is low. Using current catch rates, projections indicate that landings would not reach the quota before the end of the 2019 fishing season (December 31, 2019). A higher retention limit authorized under this action will promote increased fishing opportunities and utilization of available quota in the Atlantic region.

• Estimated date of fishery closure based on when the landings are projected to reach 80 percent of the available overall, regional, and/or sub-regional quota, if the fishery's landings are not projected to reach 100 percent of the applicable quota before the end of the season.

Once the landings reach 80 percent of either the aggregated LCS or hammerhead shark quotas, NMFS would, as required by the regulations at § 635.28(b)(3), close the aggregated LCS and hammerhead shark management groups since they are “linked quotas.” However, current catch rates would likely result in the fisheries remaining open for the remainder of the year. The higher retention limit should increase the likelihood of full utilization of the quota in the Atlantic region, while also allowing the fisheries to operate for the remainder of the year.

• Effects of the adjustment on accomplishing the objectives of the 2006 Consolidated HMS FMP and its amendments.

Increasing the retention limit on the aggregated LCS and hammerhead management groups in the Atlantic region from 45 to 55 LCS other than sandbar sharks per vessel per trip would continue to allow for fishing opportunities throughout the rest of the year consistent with objectives established in the 2006 Consolidated HMS FMP, including rebuilding requirements for overfished stocks.

• Variations in seasonal distribution, abundance, or migratory patterns of the relevant shark species based on scientific and fishery-based knowledge.

The directed shark fisheries in the Atlantic region are composed of a mix of species, with a high abundance of aggregated LCS caught in conjunction with hammerhead sharks. Migratory patterns of many LCS in the Atlantic region indicate that sharks move farther north in the summer and then return south in the fall. Taking these migration patterns into account, NMFS increased the retention limit on June 25, 2019, from 3 to 36 LCS other than sandbar sharks per vessel per trip (84 FR 29808), then from 36 to 45 LCS other than sandbar sharks per vessel per trip on August 18, 2019 (84 FR 42827), to provide additional fishing opportunities for fishermen in the Mid-Atlantic and New England areas. However, based on dealer reports through September 13, 2019, harvest in the Atlantic region on a daily basis has been low. Therefore, NMFS is increasing the retention limit from 45 to 55 LCS other than sandbar sharks per vessel per trip in order to provide additional opportunity for fishermen to fully utilize the quota in the entire Atlantic region.

• Effects of catch rates in one part of a region or sub-region precluding vessels in another part of that region or sub-region from having a reasonable opportunity to harvest a portion of the relevant quota.

NMFS' goal for the 2019 commercial shark fishery is to ensure fishing opportunities throughout the fishing season and the Atlantic region (83 FR 60777; November 27, 2018, 84 FR 12524; April 2, 2019, 84 FR 29808; June 25, 2019, and 84 FR 42827; August 18, 2019). While dealer reports indicate that, under current catch rates, the aggregated LCS and hammerhead shark management groups in the Atlantic region would remain open for the remainder of the year, the catch rates also indicate that the quotas would likely not be fully harvested under the current retention limit. If the harvest of these species is increased through an increased retention limit, NMFS estimates that the fishery would remain open for the remainder of the year and fishermen throughout the Atlantic region would have a reasonable opportunity to harvest a portion of the quota.

On November 27, 2018 (83 FR 60777), NMFS announced in a final rule that the aggregated LCS and hammerhead shark fisheries management groups for the Atlantic region would open on January 1 with a quota of 168.9 mt dw (372,552 lb dw) and 27.1 mt dw (59,736 lb dw), respectively, and a commercial retention limit of 25 LCS other than sandbar sharks per trip for directed shark limited access permit holders in those fisheries. NMFS published a proposed rule on September 11, 2018 (83 FR 45866), and invited and considered public comment. In the final rule, NMFS explained that if it appeared that the quota is being harvested too quickly, thus precluding fishing opportunities throughout the entire region ( e.g., if approximately 20 percent of the quota is caught at the beginning of the year), NMFS would consider reducing the commercial retention limit to 3 or fewer LCS other than sandbar sharks and then later consider increasing the retention limit, perhaps to 36 LCS other than sandbar sharks per vessel per trip around July 15, 2019, consistent with the applicable regulatory requirements. In April 2019, dealer reports indicated that landings had reached 21 percent of the quota, and NMFS therefore reduced the commercial Atlantic aggregated LCS and hammerhead shark retention limit from 25 to 3 LCS other than sandbar sharks per vessel per trip on April 2, 2019 (84 FR 12524; April 2, 2019), after considering the inseason retention limit adjustment criteria listed in § 635.24(a)(8). NMFS increased the retention limit to 36 LCS other than sandbar sharks per vessel per trip on June 25, 2019 (84 FR 29808), and increased the retention limit to 45 LCS other than sandbar sharks per vessel per trip on August 18, 2019 (84 FR 42827). Based on dealer reports through September 13, 2019, approximately 80 percent and 66 percent of the aggregated LCS and hammerhead shark quotas remain unharvested, respectively. Commercial shark landings in the Atlantic region at this point in the season are uncharacteristically low. A higher retention limit should increase the likelihood of full utilization of the quota in the Atlantic region, while also allowing the fisheries to operate for the remainder of the year.

Accordingly, as of October 9, 2019, NMFS is increasing the retention limit for the commercial aggregated LCS and hammerhead shark management groups in the Atlantic region for directed shark limited access permit holders from 45 LCS other than sandbar sharks per vessel per trip to 55 LCS other than sandbar sharks per vessel per trip. This retention limit adjustment does not apply to directed shark limited access permit holders if the vessel is properly permitted to operate as a charter vessel or headboat for HMS and is engaged in a for-hire trip, in which case the recreational retention limits for sharks and “no sale” provisions apply (§ 635.22(a) and (c)); or if the vessel possesses a valid shark research permit under § 635.32 and a NMFS-approved observer is onboard, in which case the restrictions noted on the shark research permit apply.

All other retention limits and shark fisheries in the Atlantic region remain unchanged. This retention limit will remain at 55 LCS other than sandbar sharks per vessel per trip for the rest of the 2019 fishing season, or until NMFS announces another adjustment to the retention limit or a fishery closure via a notification in the Federal Register , if warranted.

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

Prior notice is impracticable because the regulatory criteria for inseason retention limit adjustments are intended to allow the agency to respond quickly to existing management considerations, including remaining available shark quotas, estimated dates for the fishery closures, the regional variations in the shark fisheries, and equitable fishing opportunities. Additionally, regulations implementing Amendment 6 of the 2006 Atlantic Consolidated HMS FMP (80 FR 50074, August 18, 2015) intended that the LCS retention limit could be adjusted quickly throughout the fishing season to provide management flexibility for the shark fisheries and provide equitable fishing opportunities to fishermen throughout a region. Based on available shark quotas and informed by shark landings in previous seasons, responsive adjustment to the LCS commercial retention limit from the incidental level is warranted as quickly as possible to allow fishermen to take advantage of available quotas while sharks are present in their region. For such adjustment to be practicable, it must occur in a timeframe that allows fishermen to take advantage of it.

Adjustment of the LCS fisheries retention limit in the Atlantic region will begin on October 9, 2019. Prior notice would result in delays in increasing the retention limit and would adversely affect those shark fishermen that would otherwise have an opportunity to harvest more than the current retention limit of 45 LCS other than sandbar sharks per vessel per trip and could result in low catch rates and underutilized quotas. Analysis of available data shows that adjustment of the LCS commercial retention limit upward to 55 would result in minimal risks of exceeding the aggregated LCS and hammerhead shark quotas in the Atlantic region based on our consideration of previous years' data, in which the fisheries have opened in July. With quota available and with no measurable impacts to the stocks expected, it would be contrary to the public interest to require vessels to wait to harvest the sharks otherwise available through this action. Therefore, NMFS finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. Adjustment of the LCS commercial retention limit in the Atlantic region is effective October 9, 2019, to minimize any unnecessary disruption in fishing patterns and to allow fishermen to benefit from the adjustment. Foregoing opportunities to harvest the respective quotas could have negative social and economic impacts for U.S. fishermen that depend upon catching the available quotas.

Therefore, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness.

This action is being taken under § 635.24(a)(2) and is exempt from review under Executive Order 12866.