Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0471; Project Identifier MCAI-2019-00126-E” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

Except for Confidential Business Information as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this NPRM.

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mehdi Lamnyi, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada Civil Aviation (Transport Canada), which is the aviation authority for Canada, has issued Transport Canada AD CF-2019-05, dated February 19, 2019 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0471.

The FAA reviewed P&WC Service Bulletin (SB) No. PT6B-72-39107, Revision No. 1, dated December 13, 2017. The SB describes procedures for replacing the FCU. 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.

This product has been approved by the aviation authority of Canada and is approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative has notified us of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because it evaluated all the relevant information provided by Transport Canada and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require replacing the FCU with a part eligible for installation.

P&WC SB No. PT6B-72-39107, Revision No. 1, dated December 13, 2017, directs the replacement of both the FCU and the bypass valve cover. This proposed AD requires only the replacement of the FCU.

The FAA estimates that this proposed AD affects 75 engines installed on helicopters of U.S. registry.

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

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

(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 proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0472; Product Identifier 2018-CE-060-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. The FAA will consider all comments received by the closing date and may amend this NPRM because of those comments.

The FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this NPRM.

The FAA received a report of cracks in the tailcone and horizontal stabilizer attachment structure on a Textron (type certificate previously held by Cessna Aircraft Company) Model 185 airplane. It was observed during maintenance that the horizontal stabilizer tail section moved up and down and had excessive play. After a detailed inspection, the tailcone reinforcement braces were found cracked on both sides of the airplane. Upon further investigation, the FAA discovered similar conditions on 29 additional Textron 180 and 185 series airplanes. The FAA determined that the combination of the attachment structure design and high loads during landing contribute to the development of cracks in the tailcone and horizontal stabilizer attachment structure. This condition, if unaddressed, could result in failure of the horizontal stabilizer to tailcone attachment and lead to tail separation with consequent loss of control of the airplane.

The FAA reviewed Textron Aviation Single Engine Mandatory Service Letter SEL-55-01, dated December 7, 2017. The service information contains procedures for inspecting the stabilizer hinge brackets, tailcone reinforcement angles, corner reinforcements, stabilizer hinge reinforcement channel, stabilizer hinge assemblies, stabilizer aft spar reinforcement, and the lower half of the stabilizer aft spar from station (STA) 16 on the left side of the stabilizer aft spar to STA 16 on the right side for cracks and corrosion. 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 is proposing this AD because it evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously.

The service information applies to airplanes with more than 3,000 total hours time-in-service or 10 years in service, while this proposed AD would apply regardless of the airplane's time-in-service. This proposed AD would require inspecting for and replacing loose or sheared rivets, which is not specified in the service information.

The FAA estimates that this proposed AD would affect 6,586 airplanes of U.S. registry.

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

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

Since corrosion may affect any or all of the parts subject to the inspection in this proposed AD differently and the severity of the corrosion on each part would affect the time necessary to correct the condition, the FAA has no way to determine an overall cost per product for removing the corrosion. Similarly, loose or sheared rivets may also affect any or all of the parts subject to the inspection in this proposed AD differently, and the time necessary to correct the condition on each product would be different. Therefore, the FAA has no way to determine an overall cost per product for replacing loose or sheared rivets.

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.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

(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 proposes to amend 14 CFR part 39 as follows:

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2020-0473; Product Identifier 2018-CE-058-AD” at the beginning of your comments. The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. The FAA will consider all comments received by the closing date and may amend this proposed AD because of those comments.

The FAA will post all comments we receive, without change, to https://regulations.gov, including any personal information you provide. The FAA will also post a report summarizing each substantive verbal contact received about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2018-0242, dated October 8, 2018 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Polskie Zaklady Lotnicze Sp. z o.o. informed us the potential for damage to the thermo-shrinkable tubes does not progress with time. Therefore, we determined repetitive inspections are not required. You may examine the MCAI on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0473.

Polskie Zaklady Lotnicze Sp. z o.o. has issued Service Bulletin No. E/12.141/2018, dated May 15, 2018. The service information contains procedures for inspecting the thermo-shrinkable tubes on the electrical harnesses in the center and outer wing fuel tanks for damage and replacing any electrical harness with damaged thermo-shrinkable tubes. 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.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because it evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

The FAA estimates that this proposed AD would affect 15 products of U.S. registry. The FAA also estimates that it would take about 3 work-hours per product to comply with the basic inspection requirement of this proposed AD. The average labor rate is $85 per work-hour.

Based on these figures, the FAA estimates the cost of the proposed AD on U.S. operators to be $3,825, or $255 per product.

In addition, the FAA estimates that any necessary follow-on replacement action would take about 60 work-hours and require parts costing $5,000, for a cost of $10,100 per electrical harness. The FAA has no way of determining the number of products that may need these actions.

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.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

(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 proposes to amend 14 CFR part 39 as follows:

Comments Invited

The FAA invites you to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments received, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments received on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments received.

The FAA proposes to adopt a new AD for MDHI Model 369A, 369D, 369E, 369FF, 369H, 369HE, 369HM, 369HS, 500N, and 600N helicopters with an MR blade part number (P/N) 500P2100-105, P/N 500P2100-305, P/N 500P2300-505, P/N 369D21120-505, P/N 369D21121-505, or P/N 369D21123-505, with a 1.25-inch chord length nickel abrasion strip (abrasion strip) manufactured or installed by Helicopter Technology Company (HTC) or where the manufacturer of the abrasion strip is unknown. This proposed AD would require tap inspecting the abrasion strip within 10 hours time-in-service (TIS) and thereafter before the first flight of each day until the abrasion strip has accumulated 700 hours TIS since installation.

This proposed AD is prompted by reports that leading edge abrasion strips manufactured by HTC are departing the MR blades during flight. An investigation determined that the abrasion strips were manufactured from electroformed nickel, have a chord length of 1.25 inch, and are delaminating from the MR blade before departing from the helicopter. HTC has determined that a repetitive tap inspection of the abrasion strips should be performed on all blades with abrasion strips that have less than 700 hours TIS to detect any voids, including blistering, bubbling, or lifting of the abrasion strip. Identical looking electroformed nickel abrasion strips with a chord length of 1.25 inch manufactured by other repair stations have not departed in flight and therefore are not the subject of this proposed AD. If the manufacturer of the installed abrasion strip is unknown, this proposed AD would apply to the strip.

The FAA is proposing this AD because the agency evaluated all known relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

The FAA reviewed HTC Mandatory Service Bulletin Notice No. 2100-8R4, dated June 1, 2017, which specifies a daily tap inspection of the MR blade abrasion strip to detect voids. If there are any voids, the SB specifies repairing or replacing the MR blade, depending on the size, quantity, and location of any damage.

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.

This proposed AD would require, within 10 hours TIS and thereafter before the first flight of each day until the abrasion strip reaches 700 hours TIS, tap inspecting the leading edge abrasion strip for a void. If there is a void within 0.5 inch (12.7 mm) of the edge of the abrasion strip, the proposed AD would require replacing the blade with an airworthy blade before further flight. If there is a void that is not within 0.5 inch (12.7 mm) from the edge of the abrasion strip and is larger than 0.5 square inch (322.6 square mm) or if there is more than one void of any size, the proposed AD would require replacing the blade with an airworthy blade before further flight.

The FAA estimates that this proposed AD would affect 50 helicopters of U.S. Registry.

The FAA estimates that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85 per hour, tap-testing the MR blades will require about 0.25 work-hour, for a cost per helicopter of $22 per inspection cycle.

If required, replacing an MR blade would require 1 work-hour, and required parts would cost up to $24,130, for a cost per helicopter of $24,215.

According to HTC's service information some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage by HTC. Accordingly, the FAA has 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.

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.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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, I certify this proposed regulation:

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

2. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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 proposes to amend 14 CFR part 39 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Richard Downing Airport, Coshocton, OH, to support instrument flight rule operations at this airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2020-0426/Airspace Docket No. 20-AGL-22.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https:// www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

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

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the Class E airspace extending upward from 700 feet above the surface by adding an extension 2 miles each side of the 217° bearing from the Richard Downing Airport, Coshocton, OH, extending from the 6.5-mile radius of the airport to 9.3 miles southwest of the airport.

This action is the result of an airspace review caused by the development of new instrument procedures at this airport.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Under section 409(b)(5) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 348(b)(5)), notice was given in the Federal Register of April 18, 2017 (82 FR 18268), that a food additive petition (FAP 2299) has been filed by the Canadian Oilseed Processors Association, 404-167 Lombard Ave., Winnipeg MB R3B 0T6, Canada. The petition proposes to amend Title 21 of the Code of Federal Regulations (CFR) in part 573 Food Additives Permitted in Feed and Drinking Water of Animals (21 CFR part 573) to provide for the safe use of spent bleaching clay as a flow agent in canola meal for all livestock and poultry species. Additionally, the submission proposes that the existing regulations be amended to provide for the safe use of silicon dioxide (21 CFR 573.940) and diatomaceous earth (21 CFR 573.340) for use as components of spent bleaching clay.

In a Federal Register notice published on March 19, 2019 (84 FR 9989), an amendment was made to the petition to include an environmental assessment. Based on a review of that assessment, we have asked the petitioner to make revisions.

To encourage public participation consistent with regulations issued under the National Environmental Policy Act (40 CFR 1501.4(b)), we are placing the revised EA submitted with FAP 2299 on public display at the Dockets Management Staff (see DATES and ADDRESSES ) for public review and comment.

We will also place on public display, at the Dockets Management Staff and at https://www.regulations.gov, any amendments to, or comments on, the petitioner's EA without further announcement in the Federal Register . If, based on our review, we find that an environmental impact statement is not required, and this petition results in a regulation, we will publish the notice of availability of our finding of no significant impact and the evidence supporting that finding with the regulation in the Federal Register in accordance with 21 CFR 25.51(b).

Please note that all comments received in response to this docket are considered part of the public record. They will, unless reasonable cause is given, be made available by the Drug Enforcement Administration (DEA) for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. The Freedom of Information Act applies to all comments received. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be made publicly available, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all of the personal identifying information you do not want made publicly available in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify the confidential business information to be redacted within the comment.

Comments containing personal identifying information and confidential business information identified as directed above will generally be made publicly available in redacted form. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to http://www.regulations.gov may include any personal identifying information (such as name, address, and phone number) included in the text of your electronic submission that is not identified as directed above as confidential.

An electronic copy of this document and supplemental information to this proposed rule are available at http://www.regulations.gov for easy reference.

Pursuant to 21 United States Code (U.S.C.) 811(a), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. 551-559. 21 CFR 1308.41-1308.45; 21 CFR part 1316, subpart D. Interested persons may file requests for a hearing or notices of intent to participate in a hearing in conformity with the requirements of 21 CFR 1308.44(a) or (b), and include a statement of interest in the proceeding and the objections or issues, if any, concerning which the person desires to be heard. Any interested person may file a waiver of an opportunity for a hearing or to participate in a hearing together with a written statement regarding the interested person's position on the matters of fact and law involved in any hearing as set forth in 21 CFR 1308.44(c).

All requests for hearing and waivers of participation must be sent to DEA using the address information provided above.

The United States is a party to the 1971 United Nations Convention on Psychotropic Substances (1971 Convention), February 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175, as amended. Procedures respecting changes in drug schedules under the 1971 Convention are governed domestically by 21 U.S.C. 811(d). When the United States receives notification of a scheduling decision pursuant to Article 2 of the 1971 Convention indicating that a drug or other substance has been added or transferred to a schedule specified in the notification, the Secretary of the Department of Health and Human Services (HHS), 1 after consultation with the Attorney General, shall first determine whether existing legal controls under subchapter I of the Controlled Substances Act (CSA) and the Federal Food, Drug, and Cosmetic Act (FDCA) meet the requirements of the schedule specified in the notification with respect to the specific drug or substance. 21 U.S.C. 811(d)(3). If such requirements are not met by existing controls and the Secretary of the HHS concurs in the scheduling decision, the Secretary shall recommend to the Attorney General that he initiate proceedings for scheduling the drug or substance under the appropriate schedule pursuant to 21 U.S.C. 811(a) and (b). 21 U.S.C. 811(d)(3)(B). Pursuant to 21 U.S.C. 811(a)(1), the Attorney General may, by rule, add to such a schedule or transfer between such schedules any drug or other substance, if he finds that such drug or other substance has a potential for abuse, and makes with respect to such drug or other substance the findings prescribed by 21 U.S.C. 812(b) for the schedule in which such drug is to be placed. The Attorney General has delegated this scheduling authority to the Administrator of the DEA (Administrator). 28 CFR 0.100.

Zipeprol, known chemically as 1-methoxy-3-[4-(2-methoxy-2-phenylethyl)piperazin-1-yl]-1-phenylpropan-2-ol, is pharmacologically an opioid drug with some hallucinogenic properties that has no approved medical use in the United States.

In June 1994 and January 1995, the Food and Drug Administration (FDA), on behalf of the Secretary of the HHS, published notices in the Federal Register regarding zipeprol to comply with 21 U.S.C. 811(d)(2). The 1994 notice requested information to be considered by the World Health Organization (WHO) in preparing its scientific and medical evaluation for zipeprol. 2 The 1995 notice solicited public comment regarding a recommendation by the WHO to impose international controls on zipeprol. 3 In March 1995, the United Nations Commission on Narcotic Drugs (CND), on the advice of the Director-General of the WHO, placed zipeprol in Schedule II of the 1971 Convention. 4

As a party to the 1971 Convention, the United States is taking action to place appropriate controls on zipeprol by scheduling it under the CSA after determining that no existing legal controls under subchapter I of the CSA and the FDCA meet the requirements of the scheduling decision with respect to zipeprol. 21 U.S.C. 811(d)(3). Specifically, DEA is proposing to place zipeprol in schedule I of the CSA. Placing zipeprol in schedule I of the CSA would satisfy the United States' international obligations as set forth in Article 2, paragraph 7(b) of the 1971 Convention, and as implemented by the CSA. 21 U.S.C. 811(d)(3).

Article 2, paragraph 7(b), of the 1971 Convention sets forth the minimum requirements that the United States must meet when a substance has been added to Schedule II of the 1971 Convention. Pursuant to the 1971 Convention, the United States must require licenses for the manufacture, export and import, and distribution of zipeprol. This license requirement is accomplished by the CSA's registration requirement as set forth in 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. In addition, the United States must adhere to specific export and import provisions set forth in the 1971 Convention. This requirement is accomplished by the CSA's export and import provisions established in 21 U.S.C. 952, 953, 957, 958, and in accordance with 21 CFR part 1312. Likewise, under Article 13, paragraphs 1 and 2, of the 1971 Convention, a party to the 1971 Convention may notify another party, through the Secretary-General of the United Nations, that it prohibits the importation of a substance in Schedule II, III, or IV of the Convention. If such notice is presented to the United States, the United States shall take measures to ensure that the named substance is not exported to the notifying country. This requirement is also accomplished by the CSA's export provisions mentioned above. Under Article 16, paragraph 4, of the 1971 Convention, the United States is required to provide annual statistical reports to the International Narcotics Control Board (INCB). Using INCB Form P, the United States shall provide the following information: (1) In regard to each substance in Schedule I and II of the 1971 Convention, quantities manufactured, exported to and imported from each country or region as well as stocks held by manufacturers; (2) in regard to each substance in Schedule II and III of the 1971 Convention, quantities used in the manufacture of exempt preparations; and (3) in regard to each substance in Schedule II—IV of the 1971 Convention, quantities used for the manufacture of non-psychotropic substances or products. Lastly, under Article 2 of the 1971 Convention, the United States must adopt measures in accordance with Article 22 to address violations of any statutes or regulations that are adopted pursuant to its obligations under the 1971 Convention. The United States complies with this provision as persons acting outside the legal framework established by the CSA are subject to administrative, civil, and/or criminal action.

Pursuant to 21 U.S.C. 811(b), DEA gathered the necessary data on zipeprol and on April 3, 2009, submitted it to the Assistant Secretary for Health of the HHS with a request for a scientific and medical evaluation of available information and a scheduling recommendation for zipeprol. On May 20, 2013, HHS provided to DEA a written scientific and medical evaluation and scheduling recommendation entitled, “Basis for the Recommendation for Control of Zipeprol and Its Salts in Schedule I of the Controlled Substances Act.” Pursuant to 21 U.S.C. 811(b), this document contained HHS' eight-factor analysis of zipeprol, along with its recommendation that zipeprol be placed in schedule I of the CSA.

In response, DEA reviewed the scientific and medical evaluation and scheduling recommendation provided by the HHS and all other relevant data, and completed its own eight-factor review document pursuant to 21 U.S.C. 811(c). Since receiving the HHS recommendation, no additional studies have been published in the scientific literature. Included below is a brief summary of each factor as analyzed by HHS and DEA in their respective eight-factor analyses, and as considered by DEA in its proposed scheduling determination. Please note that both DEA and HHS analyses are available in their entirety under “Supporting Documents” of the public docket for this proposed rule at http://www.regulations.gov under docket number “DEA-477.”

1. The Drug's Actual or Relative Potential for Abuse: As reported by HHS, there are numerous reports indicating that abuse of zipeprol resulted in seizures, comas, amnesia, hallucinations, and death in countries where zipeprol has been marketed as an antitussive. The pharmacological effects of zipeprol are similar to opioids in schedule II of the CSA such as morphine; however, zipeprol is a weak opioid relative to morphine. Hallucinations, convulsions, and opioid-like tolerance and dependence are observed in humans following zipeprol intake. Zipeprol abuse is associated with psychological and physical dependence. Abuse liability studies suggest that the primary motivation for zipeprol abuse was reaching the opioid-like, hypnotic sedative effects and euphoria associated with this drug.

2. Scientific Evidence of the Drug's Pharmacological Effects, if Known: Zipeprol binds with low to moderate affinity to mu and kappa opioid receptors, has a moderate affinity for sigma 1 receptors, and has a strong affinity for sigma 2 receptors. Animal testing data in monkeys, rats and mice show that zipeprol is self-administered. Acute cardiovascular and respiratory toxicity was observed in animals continuously infused with zipeprol. Published clinical reports have indicated that euphoric effects are observed at doses ranging from 3- to 10- fold higher than the therapeutic daily dose range (75-150 mg/day). Generalized seizures were reported at relatively low doses (375 mg) but still higher than the therapeutic dose range.

3. The State of Current Scientific Knowledge Regarding the Drug or Other Substance: Zipeprol, also known as 1-methoxy-3-[4-(2-methoxy-2-phenylethyl) piperazin-1-yl]-1-phenylpropan-2-ol, has a molecular weight of 322.37 g/mol. Zipeprol is extensively metabolized in humans into four major metabolites. Zipeprol is not expected to be detected in urine with a normal pH. When urine pH rises above 6.2, unchanged zipeprol is reabsorbed whereas under acidic urine conditions (pH < 5.0), approximately 1-5 percent of zipeprol is excreted unchanged. There is no currently accepted medical use of zipeprol in the United States. In other countries, zipeprol was used as a cough suppressant (antitussive), but there is no longer any reported manufacture of, consumption of, stocks or trade of zipeprol.

4. Its History and Current Pattern of Abuse: There have been numerous reports of zipeprol abuse from Brazil, Chile, France, Italy, Mexico, the Republic of Korea, Switzerland, and the former Yugoslavia during the 1980s and 1990s. These reports suggest the sedative, hallucinogenic, and euphorigenic effects of zipeprol, and its ability to suppress some signs of opioid withdrawal at high doses, may be the reasons for its abuse. It is important to note that the ability of one opioid to suppress withdrawal from a different opioid does not represent a beneficial effect. Ease of obtaining zipeprol by over-the-counter access may have contributed to its widespread abuse in some countries. Following these reports, many countries in Asia, Europe, and South America discontinued medical use of zipeprol. Incidences of zipeprol abuse were not reported after placement of zipeprol in Schedule II of the 1971 Convention on Psychotropic Substances in 1995 (CND Dec. 38/2). Queries of DEA's System to Retrieve Information from Drug Evidence (STRIDE)/STARLiMS  5 and the National Forensic Laboratory Information System (NFLIS)  6 databases on October 3, 2018, did not generate any reports of zipeprol, suggesting that it is not trafficked in the United States.

5. The Scope, Duration, and Significance of Abuse: The lack of abuse and overdose associated with zipeprol is most likely due to its lack of availability for medical use in the United States.

6. What, if any, Risk There is to the Public Health: Currently in the United States, zipeprol is not an FDA-approved drug, and there have been no reports or epidemiological studies submitted to FDA regarding its abuse. In countries where it was available for medical use, zipeprol became a significant health problem. Based on the available clinical data, zipeprol has the same risks to public health as schedule I or schedule II substances. Such risks include deaths due to voluntary or accidental acute intoxications and the potential for psychological and physical dependence.

7. Its Psychic or Physiological Dependence Liability: Psychological and physiological dependence is associated with zipeprol. Several clinical studies examined and described physical dependence and withdrawal effects associated with zipeprol abuse. Main signs of zipeprol withdrawal include sweating, diarrhea, anxiety, insomnia, dyspnea, yawning, and pain. The euphoric and hallucinogenic effects associated with zipeprol and other opioid-like drugs serve as reinforcers and can result in psychological dependence and are supported by case studies with zipeprol abusers.

8. Whether the Substance is an Immediate Precursor of a Substance Already Controlled Under the CSA: DEA and HHS find that zipeprol is not an immediate precursor of a substance already controlled under the CSA.

Conclusion: Based on consideration of the scientific and medical evaluation and accompanying recommendation of HHS, and based on DEA's consideration of its own eight-factor analysis, DEA finds that these facts and all relevant data constitute substantial evidence of potential for abuse of zipeprol. As such, DEA hereby proposes to schedule zipeprol as a controlled substance under the CSA.

The CSA establishes five schedules of controlled substances known as schedules I, II, III, IV, and V. The CSA also outlines the findings required to place a drug or other substance in any particular schedule. 21 U.S.C. 812(b). After consideration of the analysis and recommendation of the Assistant Secretary for Health of the HHS and review of all available data, the Acting Administrator of the DEA (Acting Administrator), pursuant to 21 U.S.C. 812(b)(1), finds that:

(1) Zipeprol has a high potential for abuse. Widespread reports of zipeprol abuse have occurred in countries that have marketed zipeprol. Zipeprol is self-administered in animals and clinical studies reported that zipeprol abuse is related to its opioid, sedative, hallucinogenic, and euphorigenic effects. Epidemiological reports on zipeprol, worldwide, have indicated that adverse reactions (primarily seizures) are caused by zipeprol abuse and dependence.

(2) There are no approved New Drug Applications for zipeprol and no known therapeutic applications for zipeprol in the United States. 7 Therefore, zipeprol has no currently accepted medical use in treatment in the United States.

(3) There is a lack of accepted safety for use of zipeprol under medical supervision. Zipeprol was first approved and introduced as an antitussive in France and Italy during the late 1970s. Following several reports of abuse and overdosing from zipeprol, this drug was withdrawn in the early to mid-1990s.

Based on these findings, the Acting Administrator concludes that zipeprol warrants control in schedule I of the CSA. 21 U.S.C. 812(b)(1). More precisely, because of its opioid effects, and producing opioid-like tolerance and dependence in humans, DEA is proposing to place zipeprol in 21 CFR 1308.11(b) (the opiates category of schedule I). As such, the proposed control of zipeprol includes the substance as well as its isomers, esters, ethers, salts, and salts of isomers, esters and ethers, whenever the existence of such isomers, esters, ethers and salts is possible within the specific chemical designation.

If this rule is finalized as proposed, zipeprol would be subject to the CSA's schedule I regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, import, export, engagement in research, conduct of instructional activities or chemical analysis with, and possession of schedule I controlled substances, including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses) zipeprol, or who desires to handle zipeprol, would need to be registered with DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312 as of the effective date of a final scheduling action. Any person who currently handles zipeprol, and is not registered with DEA, would need to submit an application for registration and may not continue to handle zipeprol after the effective date of a final scheduling action unless DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312.

2. Disposal of stocks. Any person who does not desire or is not able to obtain a schedule I registration would be required to surrender all quantities of currently held zipeprol, or transfer all quantities of currently held zipeprol to a person registered with DEA before the effective date of a final scheduling action in accordance with all applicable federal, state, local, and tribal laws. As of the effective date of a final scheduling action, zipeprol would be required to be disposed of in accordance with 21 CFR part 1317, in addition to all other applicable federal, state, local, and tribal laws.

3. Security. Zipeprol would be subject to schedule I security requirements and would need to be handled and stored pursuant to 21 U.S.C. 821 and 823, and in accordance with 21 CFR 1301.71-1301.93 as of the effective date of a final scheduling action.

4. Labeling and Packaging. All labels, labeling, and packaging for commercial containers of zipeprol would need to be in compliance with 21 U.S.C. 825 and 958(e), and be in accordance with 21 CFR part 1302 as of the effective date of a final scheduling action.

5. Quota. Only registered manufacturers would be permitted to manufacture zipeprol in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of the effective date of a final scheduling action.

6. Inventory. Every DEA registrant who possesses any quantity of zipeprol on the effective date of a final scheduling action would be required to take an inventory of zipeprol on hand at that time, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (d).

Any person who becomes registered with DEA on or after the effective date of the final scheduling action would be required to take an initial inventory of all stocks of controlled substances (including zipeprol) on hand on the date the registrant first engages in the handling of controlled substances, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (b).

After the initial inventory, every DEA registrant would be required to take an inventory of all controlled substances (including zipeprol) on hand every two years, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

7. Records and Reports. Every DEA registrant would be required to maintain records and submit reports pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR parts 1304, 1312, and 1317 as of the effective date of a final scheduling action. Manufacturers and distributors would be required to submit reports regarding zipeprol to the Automation of Reports and Consolidated Order System pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312 as of the effective date of a final scheduling action.

8. Order Forms. Every DEA registrant who distributes zipeprol would be required to comply with order form requirements, pursuant to 21 U.S.C. 828, and in accordance with 21 CFR part 1305 as of the effective date of a final scheduling action.

9. Importation and Exportation. All importation and exportation of zipeprol would need to be in compliance with 21 U.S.C. 952, 953, 957, and 958, and in accordance with 21 CFR part 1312 as of the effective date of a final scheduling action.

10. Liability. Any activity involving zipeprol not authorized by, or in violation of, the CSA or its implementing regulations, would be unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

Executive Orders 12866, 13563, and 13771, Regulatory Planning and Review, Improving Regulation and Regulatory Review, and Reducing Regulation and Controlling Regulatory Costs

In accordance with 21 U.S.C. 811(a), this proposed scheduling action is subject to formal rulemaking procedures performed “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the procedures and criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563.

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

This proposed regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This proposed rulemaking does not have federalism implications warranting the application of Executive Order 13132. The proposed rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.

This proposed rule does not have tribal implications warranting the application of Executive Order 13175. It does not have substantial direct effects 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.

This action does not impose a new collection of information requirement under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Acting Administrator, in accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-602, has reviewed this proposed rule, and by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities.

DEA proposes placing the substance zipeprol (chemical name: 1-methoxy-3-[4-(2-methoxy-2-phenylethyl)piperazin-1-yl]-1-phenylpropan-2-ol), including its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers and salts is possible, in schedule I of the CSA. This action is being taken to enable the United States to meet its obligations under the 1971 Convention on Psychotropic Substances. If finalized, this action would impose the regulatory controls and administrative, civil, and criminal sanctions applicable to schedule I controlled substances on persons who handle (manufacture, distribute, reverse distribute, import, export, engage in research, conduct instructional activities or chemical analysis with, or possess), or propose to handle zipeprol.

According to HHS, zipeprol has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and lacks accepted safety for use under medical supervision. DEA's research confirms that there is no commercial market for zipeprol in the United States. Additionally, queries of DEA's STRIDE/STARLiMS and the NFLIS databases on October 3, 2018, did not generate any reports of zipeprol, suggesting that it is not trafficked in the United States. Therefore, DEA estimates that no United States entity currently handles zipeprol and does not expect any United States entity to handle zipeprol in the foreseeable future. DEA concludes that no United States entity would be affected by this rule if finalized. As such, the proposed rule will not have a significant effect on a substantial number of small entities.

On the basis of information contained in the “Regulatory Flexibility Act” section above, DEA has determined and certifies pursuant to the Unfunded Mandates Reform Act (UMRA) of 1995 (2 U.S.C. 1501 et seq. ), that this action would not result in any Federal mandate that may result “in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year * * *.” Therefore, neither a Small Government Agency Plan nor any other action is required under provisions of the UMRA of 1995.

For the reasons set out above, 21 CFR part 1308 is proposed to be amended to read as follows:

You may submit written comments, identified with the RIN 1029-AC77, by any of the methods described in the ADDRESSES section. Written comments submitted on the proposed rule should be specific, confined to issues pertinent to the proposed rule, and should explain the reason for any recommended change. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The comments and recommendations that will be most useful and likely to influence agency decisions are those: Supported by quantitative information or studies; based on specific, identifiable experience; and that include citations to, and analyses of, the applicable laws and regulations.

Comments received after the close of the comment period (see the DATES section) or delivered to addresses other than those listed above (see the ADDRESSES section) may not be considered or included in the Administrative Record for the final rule.

Comments, including names and street addresses of respondent commenters, will be available for public review at the address listed under ADDRESSES during regular business hours (7:00 a.m. to 4:00 p.m.), Monday through Friday, except holidays.

Please be advised that OSMRE may make your entire comment—including your personal identifying information such as your name, phone number, or email address—publicly available at any time. While you may ask OSMRE in your comment to withhold your personal identifying information from public view, OSMRE cannot guarantee that your request will be granted.

As set forth in section 201(c)(12) of SMCRA, Congress requires OSMRE to, among other responsibilities, “cooperate with . . . State regulatory authorities to minimize duplication of inspections, enforcement, and administration of this Act.” 30 U.S.C. 1211(c)(12). Consistent with this statutory obligation and based on OSMRE's 42 years of experience administering SMCRA, the proposed rule would clarify the regulations found at 30 CFR 842.11 and 842.12 to state that, before issuing a notification to a State regulatory authority when a possible violation exists, OSMRE will consider any information readily available. This proposed modification would reduce inefficiencies by ensuring that OSMRE considers any readily available information, including information that a State regulatory authority may choose to provide, before OSMRE issues a notification to a State regulatory authority. Our consideration of this information is critical because a State regulatory authority has primary enforcement responsibility under a State regulatory program. Thus, the proposed rule would enable OSMRE to eliminate duplication of inspection and enforcement under SMCRA by clarifying that OSMRE would consider all readily available information, including any information provided by the State regulatory authority and other readily available information, before issuing a notification of a possible violation to that State regulatory authority. Furthermore, the proposed rule would clarify the meaning of the statutory terms “appropriate action” and “good cause,” as used in 30 CFR 842.11, to describe the State regulatory authority's action or inaction after OSMRE notifies the State regulatory authority that a possible violation exists. Examples of what constitutes appropriate action and good cause exist in the existing regulations; however, in OSMRE's experience, the existing, example explanations are not exhaustive and do not fully reflect the array of in-the-field scenarios. Within the context of evaluating whether a State regulatory authority has taken appropriate action with respect to a possible violation, OSMRE has observed that not all State regulatory program issues OSMRE identifies warrant a Federal inspection, but may require further evaluation. To address these issues comprehensively and to ensure more complete and efficient enforcement of SMCRA, the proposed revision of 30 CFR part 733 would add procedures for corrective action of State regulatory program issues, including implementation of action plans. The proposed revisions to 30 CFR part 733 include adding definitions of the terms “action plan” and “State regulatory program issue” and introducing a mechanism for early identification and corrective action to address State regulatory program issues.

For ease of organization, the preamble describes the proposed changes to Part 842 first, then it describes the proposed changes to Part 733.

In the spirit of cooperative federalism, OSMRE has developed each of the proposed modifications and clarifications in close coordination with State regulatory authorities. The proposed clarifications are also consistent with Executive Order 13777 of February 24, 2017, 82 FR 12285 (March 1, 2017), because the proposed clarifications would modify the existing regulations to alleviate unnecessary regulatory burden.

The proposed changes in this rulemaking are consistent with SMCRA and will add transparency to OSMRE's oversight responsibilities; promote regulatory certainty for State regulatory authorities, regulated entities, and the public; enhance OSMRE's relationship with the State regulatory authorities; reduce redundancy in inspection and enforcement; and streamline the process for notifying State regulatory authorities of possible violations and other issues.

When Congress enacted SMCRA, 30 U.S.C. 1201 et seq., it established a regulatory structure for protecting the environment from the surface effects of coal mining. Specific to this proposed rulemaking, Title V of SMCRA embodies a regulatory relationship between the Federal Government, through OSMRE, and the States and Tribes (collectively referred to as “State regulatory authority” throughout this proposed rule because no Tribes currently have regulatory programs) known as cooperative federalism. SMCRA's mandate of cooperative federalism authorizes States (or Tribes)—within limits established by Federal minimum standards—to enact and administer regulatory programs structured to satisfy each State's individual needs. Under section 503(a) of SMCRA, States may submit proposed State regulatory programs to the Secretary of the Interior (Secretary) for approval. 30 U.S.C. 1253(a). The Secretary acts through OSMRE to review and approve or not approve a State's proposed State regulatory program. 30 U.S.C. 1211(c)(1). After approval of a proposed State regulatory program, the State has achieved “primacy.” When a State achieves primacy, the State becomes the regulatory authority and has primary jurisdiction over the regulation of surface coal mining and reclamation operations on non-Federal lands within its borders, except as provided in sections 521 and 523 and Title IV of SMCRA. 30 U.S.C. 1271, 1273, and 1231-1244. In general, a State can assume primary jurisdiction if the Secretary, acting through OSMRE, approves a proposed State regulatory program that demonstrates the State's capability to carry out SMCRA's provisions and satisfy its purposes.

One of the exceptions outlined in 30 U.S.C. 1271(a) is the primary subject of this proposed rulemaking. This provision of SMCRA authorizes OSMRE to issue a notification to a State regulatory authority—commonly known as a Ten-Day Notice (TDN)—if OSMRE has reason to believe, based on any information available, that any person is in violation of any requirement of SMCRA or any permit condition required by SMCRA. The State regulatory authority must, within ten days, take appropriate action to cause the violation to be corrected or the State regulatory authority must demonstrate good cause for not correcting the violation. The State regulatory authority is obligated to transmit this response to OSMRE for further evaluation as dictated by OSMRE's regulations (discussed below in section II. C. Regulatory Background ).

Relevant to the proposed revisions to the regulations at 30 CFR part 733, as discussed below, section 504 of SMCRA, 30 U.S.C. 1254, in general, directs the Secretary to prepare and implement a Federal program if a State regulatory authority, among other reasons, fails to implement, enforce, or maintain its approved program. Furthermore, section 521(b) of SMCRA generally requires OSMRE to enforce the requirements of SMCRA when a State regulatory authority fails to enforce an approved State regulatory program effectively and certain other criteria are satisfied. 30 U.S.C. 1271(b).

Section 201(c)(2) of SMCRA authorizes OSMRE to “publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of this Act.” 30 U.S.C. 1211(c)(2). OSMRE has implemented the statutory requirements discussed above through the existing regulations, including 30 CFR parts 842 and 733.

OSMRE has implemented section 521(a)(1) of SMCRA, in part, through the existing regulations at 30 CFR 842.11(b)(1) and (b)(2). These regulations outline the procedures for an authorized representative of the Secretary to notify a State regulatory authority of a possible violation and possible Federal enforcement. In addition, the existing regulation at § 842.11(b)(2) provides that “[a]n authorized representative shall have reason to believe that a violation, condition or practice exists if the facts alleged by the informant would, if true, constitute a condition, practice or violation referred to in paragraph (b)(1)(i) of this section.” As discussed below, in conjunction with the proposed revision to § 842.11(b)(2), the proposed rule would modify that section to recognize that OSMRE considers other readily available information in addition to the facts that a citizen complainant alleges when the authorized representative of the Secretary is determining whether there is reason to believe a violation exists.

An administrative case before the Interior Board of Land Appeals (IBLA) has interpreted SMCRA and these regulations, holding that OSMRE “retains a significant oversight role to ensure compliance with SMCRA's mandates.” Frank Hubbard, 145 IBLA 49, 52 (1998). In Hubbard, the IBLA also stated: “[w]here pursuant to a citizen's complaint, OSM[RE] has reason to believe that a permittee is in violation of a [S]tate regulatory program, OSM[RE] is required to issue a TDN to the appropriate [S]tate regulatory authority.” Id. at 53. However, neither SMCRA nor the regulations clearly define the phrase “reason to believe,” and both are ambiguous as to what information OSMRE may consider when determining whether OSMRE has “reason to believe” that a permittee is in violation of applicable requirements.

The proposed rule would clarify areas of the regulations discussed above, which have resulted in disparate application, regulatory uncertainty, redundancy, and duplicative investigation and enforcement by OSMRE and State regulatory authorities.

Moreover, the existing regulations at 30 CFR 842.11(b)(1)(ii)(B)( 2 ) through ( 4 ) further implement the requirements of section 521(a)(1) of SMCRA. 30 U.S.C. 1271(a)(1). The existing regulations are primarily the result of substantial amendments made to the regulations in 1988. Pursuant to the final rule published in the July 14, 1988, Federal Register (53 FR 26728), the regulations were amended to “establish a uniform standard by which OSMRE will evaluate [S]tate responses to [F]ederal notices of possible violations of [SMCRA].” The regulations established that OSMRE “will accept a [S]tate regulatory authority's response to a [TDN] as constituting appropriate action to cause a possible violation to be corrected or showing good cause for failure to act unless OSMRE makes a written determination that the [S]tate's response was arbitrary, capricious, or an abuse of discretion under the [S]tate program.” Id. This final rule became effective on August 15, 1988.

In summary, a State regulatory authority must take appropriate action to correct a possible violation identified by OSMRE in a TDN, or the State regulatory authority must show good cause why the violation has not been corrected. Under section 521(a)(1) of SMCRA, if a State regulatory authority does not take appropriate action or show good cause, SMCRA requires us to initiate a Federal inspection of the surface coal mining operation at which the alleged violation is occurring (unless the information OSMRE has is from a previous Federal inspection of the same operation). 30 U.S.C. 1271(a)(1). Thus, OSMRE's interpretations of what the terms “appropriate action” and “good cause” mean are essential to maintaining the proper balance between Federal enforcement and the primary role of a State regulatory authority in implementing an approved program. Although the existing regulations discuss both “appropriate action” and “good cause,” the regulations about these integral phrases have not been substantially updated in over 31 years. Based on our experience and feedback from State regulatory authorities, the proposed rule would update and clarify the meaning of the terms “appropriate action” and “good cause.”

OSMRE is also proposing to revise the regulations at 30 CFR part 733 to add new definitions and a new section that would operate in conjunction with the Part 842 regulations, discussed above. To balance the provisions of SMCRA found at sections 503 and 504, 30 U.S.C. 1253 and 1254, and the provisions of section 517(b), 30 U.S.C. 1267(b), regulations found at 30 CFR part 733 were promulgated. See generally 44 FR 15323 (March 13, 1979). States with State regulatory programs are required to implement, administer, enforce, and maintain their respective programs in accordance with SMCRA, the implementing regulations, and the provisions of the approved program. 30 CFR 733.11. The regulations at 30 CFR part 733 establish requirements for the maintenance of State regulatory programs and procedures for the rare remedy of substituting Federal enforcement of State regulatory programs and withdrawing approval of State regulatory programs. 30 CFR 733.1. These regulations have not been substantively revised in over 37 years. 47 FR 26366 (June 17, 1982). However, in coordination with State regulatory authorities, OSMRE determined that mechanisms exist for addressing identified State regulatory program issues to avoid reaching a threshold that would require substitution of Federal enforcement of a State regulatory program. OSMRE may identify these State regulatory program issues in the context of reviewing a State regulatory authority's response to a TDN. Therefore, the proposed rule addresses any State regulatory program issue OSMRE may find during State regulatory program reviews by adding provisions to 30 CFR part 733 for early identification and corrective action and to refer to these State regulatory program issues in the proposed revisions to 30 CFR 842.11(b)(1)(ii)(B)( 3 ).

While most States with significant surface coal mining operations have obtained primacy to regulate surface coal mining within their borders, OSMRE still plays a significant oversight role in regulating the coal mining industry. When OSMRE is not the primary agency regulating surface coal mining in a State, OSMRE assumes a direct oversight role. If OSMRE has reason to believe that any person has violated the applicable requirements, section 521(a)(1) of SMCRA requires OSMRE to notify the relevant State regulatory authority of the potential violation. In this context, “any person” includes the SMCRA permit holder, an operator contracted to conduct the surface coal mining activity, or certain officials related to these entities who have responsibilities under SMCRA. However, “any person” does not include State regulatory authorities, OSMRE, or employees or agents thereof, unless they are acting as permit holders. A reasonable reading of section 521(a)(1) is that the referenced violations are those that permittees, and related entities or persons, commit in contravention of State regulatory programs. Therefore, within the context of section 521(a) of SMCRA and the TDN regulations, the proposed rule would clarify that OSMRE will not send TDNs to State regulatory authorities based on allegations or other information that indicates that a State regulatory authority may have taken an improper action under the State's regulatory program. OSMRE concludes that this approach is consistent with the plain language of section 521(a). However, if OSMRE becomes aware that there is a State regulatory program issue that calls into question a State regulatory authority's effective administration of its State regulatory program, even with respect to a single operation, OSMRE intends to clarify that OSMRE would address the issue programmatically under the proposed revisions to 30 CFR part 733, rather than through the TDN process. Moreover, as explained below in the discussion of the proposed revisions to 30 CFR part 733, the proposed rule would clarify that even when OSMRE is engaged in a corrective action process with a State regulatory authority, the State regulatory authority may take direct enforcement action under its State regulatory program. Additionally, OSMRE can take appropriate oversight enforcement actions, in the event that there is, or may be, an imminent on-the-ground violation.

One of the instances when OSMRE may issue a TDN is when OSMRE receives a complaint from a citizen about an alleged violation at a surface coal mining operation. When OSMRE receives such a citizen complaint, OSMRE will issue a TDN to the State regulatory authority if OSMRE has reason to believe that any person is in violation of any requirement of SMCRA, the implementing regulations, the applicable State regulatory program, or a permit condition required by SMCRA. Based on 42 years of regulatory and oversight experience, OSMRE finds that unnecessary duplication exists in the current TDN process that can be eliminated by ensuring OSMRE examines all readily available information, including the information the State regulatory authority possesses. This is critical because in some instances in the past, OSMRE has issued a TDN after receipt of a citizen complaint even though the State regulatory authority had received a simultaneous complaint about the same possible violation. This resulted in the State regulatory authority and OSMRE initiating two parallel processes and engaging in duplicative effort without any significant benefit. Further, the relevant State regulatory authority and OSMRE were actively investigating the same issue. If OSMRE issues a TDN when a State regulatory authority is already investigating the same allegation, it can divert the State regulatory authority's efforts away from addressing a potential problem to instead responding to OSMRE's TDN. OSMRE could minimize or avoid redundancy and duplication of time and resources by ensuring that a State regulatory authority is involved early in the process, thus, freeing both OSMRE and the State regulatory authority to redirect time and allocate limited resources more effectively to ensure that potential violations are addressed. Accordingly, the proposed rule would clarify that, if OSMRE's authorized representative, while using his or her best professional judgment, is aware that a State regulatory authority has investigated or is actively investigating the possible violation, the authorized representative would consider the State regulatory authority's action before determining if there is reason to believe a violation exists.

Existing 30 CFR 842.11(b)(1) explains the circumstances when OSMRE “shall” conduct a Federal inspection, but the paragraph primarily focuses on the process leading up to a Federal inspection, including the process for OSMRE's issuance of a TDN to a State regulatory authority. In general (when there is no imminent danger or harm scenario), consistent with section 521(a) of SMCRA, when OSMRE issues a TDN to a State regulatory authority, OSMRE evaluates the State regulatory authority's response to the TDN before deciding whether to conduct a Federal inspection. Consistent with the existing regulations, OSMRE will issue a TDN to a State regulatory authority when an authorized representative of OSMRE has reason to believe that there is a violation of SMCRA, the implementing regulations, the applicable State regulatory program, or any condition of a permit or an exploration approval. In general, OSMRE may also issue a TDN when there is any condition, practice, or violation that creates an imminent danger to the health or safety of the public or is causing, or that OSMRE reasonably expect to cause, a significant, imminent, environmental harm to land, air, or water resources. In the latter situation, OSMRE will bypass the TDN process, and proceed directly to a Federal inspection, if the person supplying the information provides adequate proof that there is an imminent danger to the public health and safety or a significant, imminent environmental harm.

In the introductory sentence at 30 CFR 842.11(b)(1), the proposed rule would replace the word “shall” with the word “will” because it explains an action that OSMRE will take under the specified circumstances. 1 In the context of the existing provision at § 842.11(b)(1), OSMRE already treats “shall” as “will.” Consequently, because other revisions are proposed to this section, the proposed rule would change “shall” to “will” to remove any possible ambiguity.

The proposed rule would also modify existing 30 CFR 842.11(b)(1)(i) to clarify that when an authorized representative assesses whether he or she has reason to believe a violation exists, the authorized representative would consider any information that is accessible without unreasonable delay. The proposed rule would achieve this clarification by inserting the word “readily” between the existing words “information” and “available.”

OSMRE finds that these proposed revisions would be consistent with section 521(a)(1) of SMCRA, which sets forth that OSMRE can form reason to believe “on the basis of any information available to [the Secretary], including receipt of information from any person.” 30 U.S.C. 1271(a)(1). Based on SMCRA's plain language, such information is not restricted to information OSMRE receives from a citizen complainant. Rather, the information includes any information OSMRE receives from a citizen or the applicable State regulatory authority, or any other information OSMRE is aware exists. Also, the proposed rule would clarify that such information must be readily available, so that the process will proceed as quickly as possible and will not become open-ended.

In addition, the House of Representatives discussion of proposed section 521(a)(1) attempted to illustrate one way to establish “reason to believe” in the context of TDNs:

H. Rept. No. 95-218, at 129 (April 22, 1977) (emphasis added). See also H. Rept. No. 94-1445, at 74-75; H. Rep. No. 94-896, at 76-77; and H. Rept. No. 94-45, at 118-119. The proposed revision to § 842.11(b)(1)(i) is consistent with this reference to the Secretary's consideration of “other simple and effective documentation of a violation” in determining whether there is reason to believe that a violation exists. While this language from the legislative history relates to the information that a citizen provides, it is reasonable to apply the same principle to section 521, as enacted. In addition, in practice, citizen complaints do not always include simple and effective documentation of a violation. Instead, citizen complaints sometimes present a combination of documentation and bare allegations. Under the existing regulations, in cases where OSMRE has determined “reason to believe” that a violation exists at a particular operation, it was often because OSMRE only accepted the alleged facts. To ensure OSMRE obtains effective documentation, the proposed rule would expand our consideration to include a broader array of readily available information.

As mentioned above, section 521(a)(1) allows OSMRE to consider “any information available . . ., including receipt of any information from any person” when OSMRE is determining whether it has reason to believe that a violation exists. Congress provided that when States achieve primacy, they are the primary SMCRA regulatory authorities; therefore, it is important for OSMRE to be able to consider any readily available information that OSMRE receives from a State regulatory authority when OSMRE is determining whether OSMRE has reason to believe that a violation exists. Indeed, the above quoted passage from the House Report notes inspectors, based on on-the-ground observations, are “in the best position to recognize” violations. In the overall context of SMCRA, any information OSMRE receives from a State regulatory authority is often integral to the assessment of whether a violation exists. During the course of OSMRE oversight enforcement history, the knowledge and information provided by a State regulatory authority has been critical to OSME's understanding of a possible violation.

Moreover, OSMRE's consideration of information that it receives from the State regulatory authority promotes efficiency and avoids duplication and redundancy of investigatory and enforcement activity between OSMRE and a State regulatory authority. As discussed above in the Overview, the TDN process is time-consuming for both State regulatory authorities and OSMRE. OSMRE has spent considerable time preparing TDNs and analyzing State regulatory authority TDN responses. Similarly, State regulatory authorities have spent considerable time preparing responses to TDNs issued by OSMRE, and some State regulatory authorities have reported increases in the time spent investigating and responding to TDNs. Accordingly, the proposed rule would clarify that, if OSMRE's authorized representative, while using his or her best professional judgment, is aware that a State regulatory authority has investigated or is actively investigating the possible violation, the authorized representative would consider the State regulatory authority's action before determining if there is reason to believe a violation exists.

In addition, clarification of the existing regulations is warranted because State regulatory authorities have reported varying levels of communication and approaches from our various field offices relative to consideration of a State regulatory authority's actions when assessing whether the OSMRE authorized representative has reason to believe that a violation exists. Clarifying the regulation in the manner described above will promote regulatory certainty for State regulatory authorities and permittees, as well as the public, and should foster better relationships between OSMRE and State regulatory authority personnel. Increased cooperation between OSMRE and the State regulatory authorities promotes both the common mission of effective SMCRA implementation and collaboration between Federal and State agencies. Additionally, relying on information OSMRE receives from a State regulatory authority, along with the information in a citizen complaint and other readily available information, will promote more efficient and informed decision making on our part. Thus, by making a more informed decision, the TDNs that OSMRE issues will be focused on situations with a higher likelihood of a violation, which is a better use of OSMRE and the State regulatory authority's resources. Armed with more time, the State regulatory authorities and OSMRE could devote more resources to effective regulation of potential environmental effects of surface coal mining.

Finally, the existing regulations at § 842.12(a) require that a person requesting a Federal inspection must demonstrate that he or she has notified the applicable State regulatory authority. In the context of this rulemaking, OSMRE reiterates that, in general, OSMRE would not consider a citizen complaint until the citizen has complied with this regulation and properly notified the relevant State regulatory authority. Therefore, the provisions of existing § 842.12(a) work in conjunction with the addition of the provisions of proposed § 842.11(b) that would require an authorized representative to determine whether he or she has reason to believe that a violation exists based on “any information readily available.” The “information readily available” would include information from a State regulatory authority, which a citizen complainant has notified—consistent with the existing regulations. However, if an imminent harm is present, OSMRE will take any action it deems necessary under 30 U.S.C. 1271(a) and the implementing regulations.

Existing 30 CFR 842.11(b)(1)(ii)(A) reads as follows: “[t]here is no State regulatory authority or the Office is enforcing the State regulatory program under section 504(b) or 521(b) of the Act and part 733 of this chapter.” In this section, the proposed rule would only capitalize the “p” in the word “Part” and add the word “regulatory” between the words “State” and “program” to promote consistency throughout this rulemaking and clarify that OSMRE is referring to State regulatory programs.

The proposed rule would make non-substantive changes to existing 30 CFR 842.11(b)(1)(ii)(B)( 1 ) for readability. The existing language is set forth above under section II.C. Regulatory Background. The proposed revision would read,

Although there is no proposed change to the existing regulation at 30 CFR 842.11(b)(1)(ii)(B)( 2 ), it is discussed here for context related to the proposed clarifications in 30 CFR 842.11(b)(1)(ii)(B)( 3 ), which describes the term “appropriate action,” and 30 CFR 842.11(b)(1)(ii)(B)( 4 ), which describes the term “good cause.” Consistent with § 842.11(b)(1)(ii)(B)( 2 ), when OSMRE receives a State regulatory authority's response to a TDN, OSMRE determines whether or not the State regulatory authority's action or response constitutes appropriate action to cause any violation to be corrected or good cause for not taking action. The existing regulation requires OSMRE to determine that the State regulatory authority's action or response constitutes appropriate action or good cause if it is not arbitrary, capricious, or an abuse of discretion under the approved State regulatory program. In this context, the arbitrary and capricious standard is appropriately deferential to State regulatory authorities and is consistent with SMCRA's cooperative federalism model.

As it currently exists, 30 CFR 842.11(b)(1)(ii)(B)( 3 ) explains that “[a]ppropriate action includes enforcement or other action authorized under the State program to cause the violation to be corrected.” The proposed rule would add to this requirement a second sentence that reads, “[a]ppropriate action may include OSMRE and the State regulatory authority immediately and jointly initiating steps to implement corrective action to resolve any issue that the authorized representative and applicable Field Office Director identify as a State regulatory program issue, as defined in 30 CFR part 733.” The proposed rule gives the responsibility for identification of State regulatory program issues to the applicable Field Office Director and authorized representative, as these officials possess unique knowledge of the specific requirements of and responsibilities under the applicable State regulatory program. Although OSMRE has historically allowed programmatic resolution of State regulatory program issues, such as implementation of remedies under 30 CFR part 732, to constitute “appropriate action” in a given situation, the existing regulations do not specifically explain resolution of State regulatory program issues through corrective actions. This approach has created regulatory uncertainty. In order to avoid confusion for the regulated community, State regulatory authorities, and the public at large, the proposed rule would remove any ambiguity and definitively state that “appropriate action” may include corrective action to resolve State regulatory program issues. However, proposed § 733.12(a)(2) reaffirms that if OSMRE concludes that the State regulatory authority is not effectively implementing, administering, enforcing, or maintaining all or a portion of its State regulatory program, OSMRE may substitute Federal enforcement of the State regulatory program or withdraw approval. Additionally, in accordance with proposed § 733.12(d), OSMRE reserves the right to reinstitute oversight enforcement if, subsequent to a finding of appropriate action based upon a corrective action consistent with proposed 30 CFR part 733, an on-the-ground violation occurs or may imminently occur.

As it currently exists, 30 CFR 842.11(b)(1)(ii)(B)( 4 ) identifies circumstances that constitute good cause for a State regulatory authority not to have corrected a violation. In general, pursuant to the existing regulations, good cause for a State regulatory authority's failure to take action includes: (1) A finding that the possible violation does not exist under the State regulatory program; (2) the State regulatory authority requires additional time to determine whether a violation exists; (3) the State regulatory authority lacks jurisdiction over the possible violation under the State regulatory program; (4) the State regulatory authority is precluded by an administrative or judicial order from acting on the possible violation; or (5) specific to abandoned mine sites, the State regulatory authority is diligently pursuing or has exhausted all appropriate enforcement provisions.

The proposed rule would make minor clarifications to the examples of what constitutes good cause. First, proposed § 842.11(b)(1)(ii)(B)( 4 )( i ) would make a non-substantive change for readability and consistency that would simply add the word “regulatory” between “State” and “program” and switch the position of two phrases in the provision. The existing provision reads, “[u]nder the State program, the possible violation does not exist,” and the revised provision would read, “[t]he possible violation does not exist under the State regulatory program.” Second, the proposed rule would revise § 842.11(b)(1)(ii)(B)( 4 )( ii ) to provide that good cause includes: “[t]he State regulatory authority has initiated an investigation into a possible violation and as a result has determined that it requires a reasonable, specified additional amount of time to determine whether a violation exists.” The proposed revision would explain that the authorized representative would have discretion to determine how long the State regulatory authority should reasonably be given to complete its investigation of the possible violation. Also, the authorized representative would communicate to the State regulatory authority the date by which its investigation must be completed. This proposed revision would promote prompt identification and resolution of possible violations. OSMRE cautions that investigations should not be open-ended, the State regulatory authority would be required to perform the investigations efficiently and effectively, and the State regulatory authority should focus the investigation on satisfying the objective of the TDN process—achieving compliance with the State regulatory program. A State regulatory authority must demonstrate that, when engaging in an investigation, its inquiry focuses on investigating a possible violation. In no circumstance should a State regulatory authority use an investigation to delay Federal oversight or enforcement or delay our evaluation of a State regulatory authority's response to a TDN.

The proposed rule would make a minor revision to § 842.11(b)(1)(ii)(B)( 4 )( iii ). This proposed change would also require that a State regulatory authority would need to demonstrate that it lacks jurisdiction over the possible violation to qualify for this good cause showing. The existing language reads, “[t]he State regulatory authority lacks jurisdiction under the State program over the possible violation or operation . . . .” The proposed language would read, “[t]he State regulatory authority demonstrates that it lacks jurisdiction over the possible violation under the State regulatory program . . . .”

Similarly, the proposed rule would make minor, non-substantive modifications to § 842.11(b)(1)(ii)(B)( 4 )( iv) for readability and to clarify that, in order to show good cause, the State regulatory authority would need to demonstrate that an order from an administrative review body or court of competent jurisdiction precludes it from taking action on the possible violation. The existing language reads, “[t]he State regulatory authority is precluded by an administrative or judicial order from an administrative body or court of competent jurisdiction from acting on the possible violation, where that order is based on the violation not existing or where the temporary relief standards of section 525(c) or 526(c) of the Act have been met . . . .” The proposed language would read, “[t]he State regulatory authority demonstrates that it is precluded from taking action on the possible violation because an administrative review body or court of competent jurisdiction has issued an order concluding that the possible violation does not exist or that the temporary relief standards of the State regulatory program counterparts to section 525(c) or 526(c) of the Act have been satisfied . . . .”

Finally, the proposed rule would make minor, non-substantive modifications to § 841.11(b)(1)(ii)(B)( 4 ) (v ) to enhance readability and clarity. The existing language reads,

The proposed rule would read,

In addition to the specific clarifications of the terms “appropriate action” and “good cause” noted above, the proposed rule would reaffirm the process OSMRE currently employs in relationship to conclusions about State regulatory authority TDN responses. Pursuant to existing § 842.11(b)(1)(B)( 2 ), the authorized representative may make a finding that the State regulatory authority has taken an appropriate action or has good cause for not taking action, as long as the State regulatory authority has presented a rational basis for its decision, action, or inaction. Additionally, the State regulatory authority's response must not be arbitrary, capricious, or an abuse of discretion under the State regulatory program. When an authorized representative assesses whether a State regulatory authority has taken appropriate action or has good cause for not taking action, the authorized representative focuses on whether the action corrected the violation and not merely the methodology that the State regulatory authority employed to correct the violation. Additionally, OSMRE assesses and determines if the State regulatory authority based its action or response on a reasonable consideration of the relevant facts and if the action or response is an exercise of reasoned discretion that complies with the State regulatory program.

As it currently exists, § 842.11(b)(2) offers an interpretation of the phrase “reason to believe” that has not been revisited in this section since a 1982 rulemaking. The existing regulation at § 842.11(b)(2) essentially requires an authorized representative to accept the facts in a citizen complaint as true when determining whether he or she has reason to believe that a violation exists. The existing provision reads, “[a]n authorized representative shall have reason to believe that a violation, condition or practice exists if the facts alleged by the informant would, if true, constitute a condition, practice or violation referred to in paragraph (b)(1)(i) of this section.”

The proposed revision reads,

Some might have interpreted the existing regulatory provisions to mean that all OSMRE has to do is determine if the alleged facts would constitute a violation before issuing a TDN. However, the existing regulations at § 842.11(b)(1)(i) provide that the authorized representative can consider “information available” when determining whether he or she has reason to believe a violation exists, rather than automatically and only accepting the facts alleged in a citizen complaint as true. Because of its importance to an understanding of the statutory scheme, clarifying the meaning of the phrase “reason to believe,” as discussed above in the explanation of proposed 30 CFR 842.11(b)(1), is paramount.

Consistent with this approach, the proposed rule would modify § 842.11(b)(2) to clarify that OSMRE would consider any information readily available and not only the facts alleged in a citizen complaint when determining whether it has reason to believe a violation exists. Nothing in SMCRA requires OSMRE to accept alleged facts as true in a vacuum. Rather, information that a citizen provides is usually only a portion of the readily available information that OSMRE would consider when deciding whether to initiate the TDN process. Moreover, the inclusion of the phrase “reason to believe” in section 521(a)(1) of SMCRA indicates that Congress intended for OSMRE to use discretion in determining whether to issue a TDN to a State regulatory authority. With the proposed changes, after OSMRE receives an allegation of a violation and assess all readily available information, OSMRE would apply independent, professional judgment to determine whether OSMRE has reason to believe a violation exists. Congress created OSMRE to be the expert agency that administers SMCRA. Therefore, OSMRE should never be acting as a mere conduit for transmitting a citizen complaint to a State regulatory authority in the form of a TDN.

Proposed § 842.11(b)(2) would complement the provisions of proposed § 842.11(b)(1)(i), discussed above, and, together, the provisions would provide clarification for how an authorized representative would arrive at reason to believe that a violation exists in the context of the TDN process. In short, the clarified provisions propose to adopt language that Congress offered when it was drafting SMCRA. Specifically, Congress anticipated that “`reasonable belief' could be established by a snapshot of an operation in violation or other simple and effective documentation of a violation.” H. Rept. No. 95-218 at 129 (1977). As explained above, under the discussion of proposed § 842.11(b)(1), OSMRE would apply the principle of considering “other simple and effective documentation of a violation” to all information readily available to it, no matter the source. Specifically, the reference to “any information available” in section 521(a)(1), 30 U.S.C. 1271(a)(1), would include not only information OSMRE receives from a citizen complainant and information of which it is already aware, but also any information OSMRE receives from the applicable State regulatory authority. The discussion of proposed § 842.11(b)(1)(i), above, discusses in more detail OSMRE's multi-faceted rationale for clarifying the meaning of the phrase “reason to believe.” One key point that the proposed rule would be clarifying is that, if the authorized representative, while using his or her best professional judgment, is aware that the State regulatory authority has investigated or is actively investigating the possible violation, the authorized representative would consider the State regulatory authority's action before determining if there is reason to believe a violation exists.

However, OSMRE remains mindful of the important role that citizens play in effective implementation and enforcement of SMCRA. Therefore, OSMRE would continue to take allegations in a citizen complaint very seriously, and OSMRE encourages citizens to provide as much detail and simple and effective documentation about the alleged violation in their complaints as possible.

In summary, the proposed revision to § 842.11(b)(2) dovetails with existing § 842.11(b)(1)(i), as well as the proposed clarification of that section, discussed above, which would allow OSMRE to consider “any information readily available” when making a “reason to believe” determination. Being able to read these two provisions in harmony should reduce or eliminate any conflict or confusion that the existing provisions created.

As it currently exists, 30 CFR 842.12(a) identifies the process to request a Federal inspection. This existing regulatory provision states that a person may request a Federal inspection by submitting a signed, written statement giving the authorized representative reason to believe that a violation, condition or practice referred to in § 842.11(b)(1)(i) exists and that the State regulatory authority has been notified in writing about the violation. The provision also requires the submitter to include a phone number and address where the person can be contacted. The authorized representative then assesses if he or she has reason to believe that a violation, condition, or practice referred to in § 842.11(b)(1)(i) exists.

The proposed modifications to 30 CFR 842.12(a) complement the proposed clarifications outlined above in the discussion of proposed § 842.11(b)(1)'s “reason to believe” standard. Specifically, the proposed rule would modify the existing language in § 842.12(a) to clarify that, when a person requests a Federal inspection, the person's request must include, “information that, along with any other readily available information, may give the authorized representative reason to believe that a violation, condition, or practice referred to in § 842.11(b)(1)(i) exists.” The proposed rule would also make minor, non-substantive modifications to the provision at existing § 842.12(a) so that the revised provision would reaffirm that when any person requests a Federal inspection, the person's written statement “must also set forth the fact that the person has notified the State regulatory authority, if any, in writing, of the existence of the possible violation, condition, or practice . . . .” Under the proposed rule, the person's statement must also include “the basis for the person's assertion that the regulatory authority has not taken action with respect to the possible violation.” The latter provision reflects the fact that, most often, a State regulatory authority will address a potential violation when the State regulatory authority is made aware of the situation.

Under this section of the proposed rule, OSMRE would verify whether the individual requesting the Federal inspection notified the State regulatory authority. As with the “reason to believe” standard in § 842.11(b)(1), OSMRE would consider any readily available information, including any information that the citizen or the State regulatory authority provides, in our “reason to believe” determination. OSMRE may verify the person's compliance with this section, and the State regulatory authority's action or inaction relative to the alleged violation, using a variety of methods, not limited to the examples that follow. OSMRE may directly communicate with the State regulatory authority to obtain any readily available information, or rely on other readily available information, such as information in permit files, public records, or documentation that the person provides in connection with the request for a Federal inspection. OSMRE may also obtain the status of the situation if the State regulatory authority acknowledges in writing that the requester previously notified the State regulatory authority of the possible violation, and the State regulatory authority sets forth whether it has acted or not with respect to the possible violation. Again, OSMRE does not deem this list of examples to be exhaustive, and OSMRE may select other mechanisms to verify that the requester properly notified the State regulatory authority of the existence of a possible violation, and to ascertain the status of the State regulatory authority's response to the possible violation.

Finally, in order to conform and update the regulations to modern, generally accepted, and efficient mechanisms of communication, the proposed rule would provide that, in addition to providing a phone number and physical address, any person who requests a Federal inspection should include an email address, if one is available, so that OSMRE may contact the requester.

In § 842.12(a), the proposed rule would replace the term “a person” with the term “any person” to mirror the language of section 521(a) of SMCRA.

Please note that, under the proposed rule change in § 842.12(a), when OSMRE determines whether a violation exists for purposes of issuing a TDN or determining whether to conduct a Federal inspection, a State regulatory program issue would not qualify as a possible violation. Similarly, OSMRE would not consider a State regulatory authority's failure to enforce its State regulatory program as a violation that warrants a TDN or Federal inspection. The TDN and Federal inspection process in section 521(a) applies to oversight enforcement about violations at individual operations. Congress differentiated this type of individual operation oversight from the State regulatory program enforcement provisions of section 521(b). Based on this distinction, the existing 30 CFR part 733 addresses State regulatory program issue enforcement identified in section 521(b). As discussed in the next section of the preamble, the proposed rule would add new provisions to 30 CFR part 733, so that OSMRE may also address potential problems for individual permits under the part 733 regulations. As proposed, the changes to 30 CFR part 733 discussed below would not address the types of issues that qualify as violations under the TDN and Federal inspection process in section 521(a). However, OSMRE could still take appropriate oversight enforcement actions in the event that there is an on-the-ground violation, or such a violation could be imminent. The proposed modifications to 30 CFR part 733 are discussed below.

As it currently exists, this part establishes requirements for the maintenance of State regulatory programs, and procedures for substituting Federal enforcement of State regulatory programs or OSMRE withdrawal of approval of State regulatory programs.

Throughout OSMRE's 42 years of implementing and overseeing SMCRA and State regulatory programs, OSMRE has observed that early identification of and corrective action to address problems is critical to strong enforcement of SMCRA. If problems remain unaddressed, they may result in a State regulatory authority's ineffective implementation, administration, enforcement, or maintenance of its State regulatory program. To prevent this from occurring and to encourage a more complete and efficient implementation of SMCRA, the proposed rule would enhance the provisions of 30 CFR part 733. Proposed § 733.5 would define the terms “action plan” and “State regulatory program issue.” Proposed § 733.12 would address how early identification of and corrective action for State regulatory program issues can be achieved. OSMRE considers these additions to the regulations beneficial for early identification, evaluation, and resolution of potential problems that may impact a State regulatory authority's ability to effectively implement, administer, enforce, or maintain its State regulatory program. Further, these proposed mechanisms would avoid unnecessary substitution of Federal enforcement and minimize the number of on-the-ground violations.

Additionally, in the sections that would be added or revised throughout 30 CFR part 733, the proposed rule would add the term “regulatory” between the terms “State” and “program.” Specific wording is discussed in each proposed section, below. OSMRE finds these to be nonsubstantive changes made for the purpose of clarity; if incorporated into a final rule, these changes would clearly differentiate between a regulatory program administered by OSMRE and a State regulatory program that is administered by a State that has achieved primacy after approval by OSMRE.

The proposed rule would add a definition section to 30 CFR part 733. The proposed rule would define the terms “action plan” and “State regulatory program issue.” In short, under the proposed definition, the term “action plan” would mean “a detailed schedule OSMRE prepares to identify specific requirements a State regulatory authority must achieve in a timely manner to resolve State regulatory program issues identified during oversight of State regulatory programs.” Historically, OSMRE and State regulatory authorities have used action plans as a compliance strategy and documented their use in the Annual Evaluation Reports that OSMRE compiles to discuss, among other things, the status of State regulatory programs. Therefore, the proposed inclusion of a definition for the term “action plan” in the regulations would not place a new burden on State regulatory authorities, but would merely create regulatory certainty and promote uniform application.

Similarly, the proposed rule would define the term “State regulatory program issue” to mean:

Generally, OSMRE identifies State regulatory program issues during oversight of a State regulatory program. In short, State regulatory program issues are those that may result in a State regulatory authority not adhering to its approved, State regulatory program. Other examples of a State regulatory program issue include when a State regulatory authority does not adopt and implement program amendments that are required under 30 CFR 732.17 and 30 CFR Subchapter T. The proposed definition would also include issues related to the requirement in SMCRA section 510(b), 30 U.S.C. 1260(b), that a regulatory authority must not approve a permit or permit revision, unless the regulatory authority finds that the application is accurate and complete and is in compliance with all of SMCRA's requirements and those of the approved program.

As discussed above in relation to the proposed changes to 30 CFR part 842, the TDN and Federal inspection process in section 521(a) of SMCRA and the State regulatory program enforcement provisions in section 521(b) of SMCRA, along with the existing implementing regulations, differentiate between issues related to a State regulatory authority's failure to implement, administer, maintain, and enforce all or a part of a State regulatory program and possible violations that could lead to a TDN or Federal inspection. Most notably, the State regulatory program enforcement provisions of section 521(b) of SMCRA generally address systemic programmatic problems with a State regulatory program, not specific violations exclusive to an individual operation or permit as detailed in section 521(a) of SMCRA. However, citizens sometimes identify State regulatory program issues in citizen complaints under section 521(a) of SMCRA and 30 CFR part 842. OSMRE may also become aware of a State regulatory program issue while overseeing enforcement of specific operations or permits. As discussed above in connection with proposed § 842.11(b)(1)(ii)(B)( 3 ), the proposed rule would modify the definition of “appropriate action” to further clarify the differences between possible violations, which may warrant issuance of a TDN or a Federal inspection on specific permits, and systemic, programmatic issues, which are not appropriately addressed through the TDN or Federal inspection process. SMCRA and the existing regulations provide a remedy for systemic, programmatic issues at 30 CFR part 733 by identifying procedures for substituting Federal enforcement of State regulatory programs or withdrawing approval of State regulatory programs. The proposed addition of early identification and corrective action to address State regulatory program issues would enhance our ability to ensure prompt resolution of issues, which, if unattended, may result in OSMRE exercising the rare remedy of substituting Federal enforcement. Specifically, if the proposed inclusion of an “action plan,” as proposed in § 733.5(a), is finally adopted, an “appropriate action” that a State might take, as explained in proposed § 842.11(b)(1)(ii)(B)( 3 ), could include OSMRE and the State regulatory authority immediately and jointly initiating steps to implement corrective action to resolve any issue that the authorized representative and applicable Field Office Director identify as a State regulatory program issue. The proposed modification to 30 CFR 842.11(b)(1)(ii)(B)( 3 ), coupled with the proposed definition of “State regulatory program issue,” is designed to further clarify the differences between the types of violations or issues that would be addressed by the TDN and Federal inspection process in section 521(a) and the State regulatory program enforcement provisions in section 521(b) of SMCRA, respectively.

While OSMRE may sometimes identify State regulatory program issues during the TDN process, as discussed in the preceding paragraph, at other times, as referenced earlier in this preamble, OSMRE may identify and address State regulatory program issues before, and instead of, initiating the TDN process. For example, over the years, various groups, including citizens, State regulatory authorities, and industry, have raised the issue of how OSMRE deals with alleged problems in a permit that a State regulatory authority has issued to a permittee. This proposed rule would address these types of issues in the proposed additions to the regulations at 30 CFR part 733. As discussed above, SMCRA provides textual support for this approach. However, as previously discussed earlier in this preamble, even when a State regulatory authority and OSMRE are engaged in the proposed Part 733 process, the State regulatory authority could still take direct enforcement action under its State regulatory program. Additionally, OSMRE could still take appropriate oversight enforcement actions, in the event that there is or may be an imminent on-the-ground violation. It should be noted that an imminent on-the-ground violation is different from “[i]mminent danger to the health and safety of the public,” as defined at 30 CFR 701.5. Like other changes proposed in this rulemaking, the proposed additions to 30 CFR part 733 should provide greater regulatory stability and certainty in relationship to State regulatory program issues and how these issues will be addressed to all interested parties, including citizens, State regulatory authorities, and permittees. OSMRE has addressed mechanisms for handling State regulatory program issues in various ways outside the context of rulemaking, but uncertainty among the regulated community and State regulatory authorities remain. The proposed rule would resolve the issue in the context of this rulemaking initiative by clearly differentiating between the types of violations or issues that would be addressed by the TDN and Federal inspection process outlined in section 521(a) and the State regulatory program enforcement provisions in section 521(b) of SMCRA.

In sum, these proposed changes would ensure a more complete enforcement of SMCRA, and provide guidance on early detection of potential problems that may, if left unaddressed, escalate to the point that OSMRE considers substituting Federal enforcement procedures as outlined in existing 30 CFR 733.12 through 733.13.

The proposed rule would redesignate certain sections of existing 30 CFR part 733 to accommodate both the proposed new definition section at 30 CFR 733.5, discussed above, and a new proposed § 733.12 entitled, “Early identification and corrective action to address State regulatory program issues.” Because this rulemaking proposes to number the new, proposed section as 733.12, the proposed rule would re-designate existing § 733.12 as 733.13 and existing § 733.13 as 733.14. Additionally, the proposed rule would replace references to § 733.12 in the existing regulations with references to § 733.13 in the proposed rule, in accordance with the new section numbering to accommodate the addition of proposed new § 733.12. In particular, in existing § 733.10, the proposed rule would replace the reference to 30 CFR 733.12(a)(2) with a reference to 30 CFR 733.13(a)(2). Similarly, in existing § 736.11(a)(2), the proposed rule would replace the reference to “§ 733.12” with a reference to “§ 733.13.” Also, in existing § 733.10, the proposed rule would change a reference from “OSM” to “OSMRE” for consistency.

Proposed § 733.12 would contain the substantive mechanisms and compliance strategies that OSMRE would use to resolve a State regulatory program issue (as defined in proposed 30 CFR 733.5) that OSMRE becomes aware of during oversight of a State regulatory program or from information OSMRE receives from any person. Although OSMRE has historically worked closely with the State regulatory authorities and used similar approaches, incorporating these approaches into the regulations would provide a clear mechanism for early identification and resolution of issues that would enable OSMRE to achieve regulatory certainty and uniform implementation of the procedures among State regulatory authorities. This proposed addition to the regulations would include procedures for developing an action plan (as defined in proposed 30 CFR 733.5) so that OSMRE can ensure that State regulatory program issues are timely resolved.

When OSMRE identifies a State regulatory program issue, proposed § 733.12(a) would provide that the Director should take action to make sure that the issue does not escalate to the point that might give the Director reason to believe that the State regulatory authority is not effectively implementing, administering, enforcing, or maintaining all or a part of its State regulatory program, which could otherwise lead to substituting Federal enforcement of a State regulatory program or withdrawing approval of a State regulatory program as provided in 30 CFR part 733. OSMRE would use the proposed procedures in proposed § 733.12 to attempt to achieve resolution of the issue in a timely and effective manner. It is emphasized that proposed § 733.12 would not, in any manner, diminish the requirements of existing 30 CFR 733.12 (that would be re-designated as 30 CFR 733.13 under this proposed rule) or our responsibilities associated with substituting Federal enforcement of State regulatory programs or withdrawing approval of State regulatory programs under the appropriate circumstances. Instead, this proposed procedure supplements the existing process in order to identify problems before State regulatory program issues rise to the level of warranting the rare remedy of substituting Federal enforcement. In the event OSMRE has reason to believe that the State regulatory authority is not effectively implementing, administering, enforcing, or maintaining its State regulatory program, OSMRE would use existing 30 CFR 733.12 (that would be redesignated as § 733.13) and all other applicable provisions to respond appropriately. In contrast, if the State regulatory program issue does not rise to the level of requiring OSMRE to substitute Federal enforcement, OSMRE may initiate the proposed process for early identification and corrective action found in proposed § 733.12(b). Inherent in the previous statement is the supposition that the State regulatory program issue is a programmatic problem, not a possible violation warranting a TDN or Federal inspection, as contemplated in section 521(a)(1) of SMCRA; if it is a possible violation, OSMRE would use the TDN procedures if OSMRE has reason to believe that a violation exists.

In general, proposed § 733.12(b) would allow the OSMRE Director, or his or her delegate, as set forth in OSMRE's guidance, to “employ any number of compliance strategies to ensure that the State regulatory authority corrects State regulatory program issues in a timely and effective manner.” OSMRE suggests that possible compliance strategies might include, but are not limited to:

• OSMRE engaging in informal discussions with the State regulatory authority regarding possible resolutions of the issue;

• OSMRE and the State regulatory authority participating in the program amendment process as outlined in 30 CFR 732.17;

• OSMRE suggesting changes in the State regulatory authority's procedures, use of resources, or training of staff;

• OSMRE providing technical assistance or initiating targeted special studies that our technical experts would conduct;

• OSMRE increasing our number of oversight inspections beyond the statutory minimum or providing more OSMRE inspection teams to supplement the State regulatory authority's inspection resources;

• OSMRE conducting a formal audit of the State regulatory authority's permitting and compliance activities;

• OSMRE conducting public fact-finding hearings related to the State regulatory program issue; or

• OSMRE devising enhanced tracking procedures to determine if the State regulatory program issue represents a systemic problem.

Although the above list reflects examples of potential corrective actions that a State regulatory authority and OSMRE might jointly employ, the list is not exhaustive. In fact, OSMRE recommends a case-by-case analysis of the State regulatory program issue. This would allow the State regulatory authority and OSMRE to develop a specifically tailored, innovative solution to the State regulatory program issue that is designed to achieve timely resolution.

Generally, OSMRE does not anticipate that resolution of a State regulatory program issue should exceed 180 days. However, the proposed rule at § 733.12(b) would provide that if the OSMRE Director or delegate “does not expect that the State regulatory authority will resolve the State regulatory program issue within 180 days after identification or that it is likely to result in an on-the-ground violation, then the Director or delegate will develop and institute an action plan [as defined in proposed § 733.5].” In proposed § 733.12(b)(1), OSMRE would prepare a written action plan with sufficient “specificity to identify the State regulatory program issue and an effective mechanism for timely correction.” When OSMRE is preparing the action plan, OSMRE would consider any input it receives from the State regulatory authority. When selecting corrective measures to integrate into the action plan, OSMRE may consider any established or innovative solutions, including the compliance strategies referenced above. Additionally, proposed § 733.12(b)(2) states that “[a]ction plans will identify any necessary technical or other assistance that the Director or his or her delegate can provide and remedial measures that a State regulatory authority must take immediately.” It is important for OSMRE to assist the State regulatory authorities in any way to ensure successful implementation of their respective State regulatory programs. This provision also recognizes that OSMRE might identify a State regulatory program issue that requires immediate remedial measures, and the action plan would reflect that fact.

The balance of this proposed section, at § 733.12(b)(3), describes the contents of action plans. To ensure that OSMRE can adequately track actions plans and that the underlying State regulatory program issue is resolved, under the proposed rule each action plan would be required to include: A specific “action plan identification number”; “a concise title and description of the State regulatory program issue”; “explicit criteria for establishing when complete resolution will be achieved”; “explicit and orderly sequence of actions the State regulatory authority must take to remedy the problem”; “a schedule for completion of each action in the sequence”; and “a clear explanation that if the action plan, upon completion, does not result in the correction of the State regulatory program issue, the provisions of 30 CFR 733.13 [existing § 733.12] may be triggered.”

Proposed § 733.12(c) reiterates that OSMRE will track all identified State regulatory program issues. As part of OSMRE oversight responsibilities, each year OSMRE develops a performance agreement and evaluation plan to guide oversight activities within each primacy State. That process includes solicitation and consideration of public input and involves collaboration with the respective State. At the end of the evaluation period, OSMRE prepares an Annual Evaluation report. As proposed, this section would also require OSMRE to report the issues in the applicable State regulatory authority's Annual Evaluation report.

Finally, proposed § 733.12(d) would emphasize that nothing in the proposed new section “prevents a State regulatory authority from taking direct enforcement action in accordance with its State regulatory program, or [us] from taking appropriate oversight enforcement action, in the event that a previously identified State regulatory program issue results in or may imminently result in an on-the-ground violation.” In context, “imminence” may vary, and OSMRE will rely on our authorized representative to use his or her professional judgment to determine whether an on-the-ground violation is imminent in a given situation.

This proposed rule would not affect a taking of private property or otherwise have takings implications under Executive Order 12630. The proposed rule primarily concerns Federal oversight of State regulatory programs and enforcement when permittees and operators are not complying with the law. Therefore, the proposed rule would not result in private property being taken for public use without just compensation. A takings implication assessment is not required.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has not deemed this proposed rule significant because it would not have a $100 million annual impact on the economy, raise novel legal issues, or create significant impacts. The proposed rule would primarily clarify the existing regulations to reduce the burden upon the regulated community and preserve resources by allowing for greater cooperation between the Federal Government and the States.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that agencies must base regulations on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. This proposed rule has been developed in a manner consistent with these requirements.

This proposed rule describes a proposed deregulatory action. Consistent with Executive Order 13771 and the April 5, 2017, Guidance Implementing Executive Order 13771, the proposed rule, if finalized, will have total costs less than zero.

This proposed rule complies with the requirements of Executive Order 12988. Among other things, this rule:

(a) Satisfies the criteria of Section 3(a) requiring that all regulations be reviewed to eliminate drafting errors and ambiguity; be written to minimize litigation; and provide clear legal standards for affected conduct; and

(b) satisfies the criteria of Section 3(b) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in Section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. While clarification of the existing regulations would have a direct effect on the States and the Federal Government's relationship with the States, this effect is not significant as it neither imposes substantial unreimbursed compliance costs on States nor preempts State law. Furthermore, this proposed rule would not have a significant effect on the distribution of power and responsibilities among the various levels of government. The proposed rule would reduce burdens on State regulatory authorities and more closely align the regulations to SMCRA. A federalism summary impact statement is not required.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. OSMRE has evaluated this proposed rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it would not have substantial direct effects on federally recognized Tribes and that consultation under the Department's tribal consultation policy is not required. Currently, no Tribes have achieved primacy; therefore, OSMRE regulates all surface coal mining and reclamation operations on Indian lands with tribal input and assistance. Currently, OSMRE works in conjunction with the Crow, Hopi, and Navajo regarding enforcement of surface coal mining and reclamation operations. This proposed rulemaking would not directly impact the Tribes. However, because they have expressed interest in perhaps having their own regulatory programs in the future, OSMRE has coordinated with the Crow, Hopi, and Navajo to inform them of, and to provide updates on the progress of, our proposed rulemaking.

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rule that is: (1) Considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy; or is designated as a significant energy action by the Office of Management and Budget. Because this proposed rule is not deemed significant under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This proposed rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action would not concern environmental health or safety risks disproportionately affecting children.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 3701 note et seq. ) directs Federal agencies to use voluntary consensus standards when implementing regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. This proposed rule would not be subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with SMCRA, and the requirements would not be applicable to this proposed rulemaking.

OSMRE has made a preliminary determination that the changes to the existing regulations that would be made under this proposed rule are categorically excluded from environmental review under the National Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq. Specifically, OSMRE has determined that the proposed rule is administrative or procedural in nature in accordance with the Department of the Interior's NEPA regulations at 43 CFR 46.210(i). The regulation provides a categorical exclusion for, “[p]olicies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis . . . .” The proposed rule primarily seeks to clarify how OSMRE formulates reason to believe in the TDN context and the information OSMRE considers in this analysis. As such, the proposed rule would merely clarify OSMRE's process. Therefore, OSMRE deems the proposed changes to the regulations to be administrative and procedural in nature, as these proposed changes ensure regulatory certainty. These clarifications would result in efficiency and enhanced collaboration among State regulatory authorities and OSMRE. OSMRE has also determined that the proposed rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. OSMRE will continue to review these factors as the proposed rule is evaluated.

This proposed rule would not impose a collection of information burden, as defined by 44 U.S.C. 3502, upon any entity defined in the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

Based on OSMRE's collaboration with State regulatory authorities and years of experience, OSMRE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The Regulatory Flexibility Act generally requires Federal agencies to prepare a regulatory flexibility analysis for rules that are subject to the notice-and-comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553), if the rule would have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 601-612.

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

This proposed rule would not impose an unfunded mandate on State, local, or Tribal governments, or the private sector, of $100 million or more in any given year. The proposed rule would not have a significant or unique effect on State, local, or Tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

For the reasons set out in the preamble, the Department of the Interior, acting through OSMRE, proposes to amend 30 CFR parts 733, 736 and 842 as follows:

Currently, DMM Exhibit 604.9.2.1, Postage and Fees Refunds, provides that a customer must apply for an extra service refund no sooner than 10 days, or no later than 60 days, from the date the service was purchased.

Certain extra services ( e.g., Certified Mail®) have workflow timelines that extend beyond the current 10-day limit to initially file for a refund. As a result, to meet the required workflow timelines for these extra services, and for consistency in application of the refund processes, the Postal Service is proposing to extend the current 10-day time limit to a 30-day time limit before a customer can file for a refund.

In addition, the Postal Service is proposing to add another category for refunds, “All other classes of mail with an extra service” for consistency. This proposed revision to the 30-day time limit will apply for refunds of both pieces of all other classes of mail with an extra service and for an extra service. This revision will not affect the “Priority Mail Express® with an extra service” refund category.

We believe this proposed revision will provide customers with a more efficient process and a more consistent customer experience.

Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comments on the following proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

Accordingly, 39 CFR part 111 is proposed to be amended as follows:

I. What is the background of Georgia's SIP-approved I/M program?

The CAA requires certain areas that are designated as moderate, serious, severe, or extreme ozone nonattainment areas to establish a motor vehicle I/M program to ensure regular monitoring of gasoline fueled motor vehicle emissions by requiring that vehicles undergo periodic emissions testing. See CAA sections 182(b)(4), (c)(3). This emissions testing ensures that vehicles are well maintained and operating as designed, and do not exceed established vehicle pollutant limits. A basic I/M program is required for certain moderate areas and an enhanced I/M program is required for certain serious, severe, or extreme ozone nonattainment areas.

In 1991, EPA classified a 13-county area in and around the Atlanta, Georgia, metropolitan area as a serious ozone nonattainment area for the 1990 1-hour ozone NAAQS, triggering the requirement for the State to establish an enhanced I/M program for this area. 1 In 1996, Georgia submitted its enhanced I/M program to EPA for incorporation into the SIP. EPA granted interim approval of the State's program. See 62 FR 42916 (August 11, 1997). Full approval was subsequently granted. See 65 FR 4133 (January 26, 2000). Since that time, EPA has approved several SIP revisions regarding the State's I/M program.

In 1997, EPA established an 8-hour ozone NAAQS and subsequently designated areas. On April 30, 2004 (69 FR 23858), EPA designated a 20-county area, in and around metropolitan Atlanta, as a marginal ozone nonattainment area for the 1997 8-hour ozone NAAQS. 2 EPA reclassified these counties as a moderate ozone nonattainment area on March 6, 2008 (73 FR 12013), because the area failed to attain the 1997 8-hour ozone NAAQS by the required attainment date of June 15, 2007. Subsequently, the area attained the 1997 8-hour ozone standard, and on December 2, 2013 (78 FR 72040), EPA redesignated the counties to attainment for the 1997 8-hour ozone NAAQS.

On March 12, 2008, EPA revised the 8-hour ozone NAAQS. See 73 FR 16436 (March 27, 2008). EPA designated a 15-county area in and around metropolitan Atlanta as a marginal ozone nonattainment area for the 2008 8-hour ozone NAAQS on April 30, 2012 (effective July 20, 2012). 3 See 77 FR 30088 (May 21, 2012). EPA reclassified these counties as a moderate ozone nonattainment area on April 11, 2016, because the area failed to attain the 2008 8-hour ozone NAAQS by the required attainment date of July 20, 2015. See 81 FR 26697 (May 4, 2016). Subsequently, the area attained the 2008 8-hour ozone standard and EPA redesignated the counties to attainment for the 2008 8-hour ozone NAAQS. See 40 CFR 25523 (June 2, 2017).

On October 1, 2015, EPA again revised the 8-hour ozone NAAQS to 0.070 parts per million (ppm). See 80 FR 16436 (October 26, 2015). EPA designated a 7-county area in and around metropolitan Atlanta as a marginal ozone nonattainment area for the 2015 8-hour ozone NAAQS on April 30, 2018 (effective August 3, 2018). 4 The attainment date is August 3, 2021.

EPA is proposing to approve changes to the Georgia SIP that were provided to EPA under a cover letter dated March 15, 2019. 5 Specifically, GA EPD provided three different changes to Georgia's Rule 391-3-20— Enhanced Inspection and Maintenance (“Georgia I/M Regulation”), which were adopted by the GA DNR Board of Directors and became state-effective on November 22, 2016, March 28, 2018, and February 17, 2019. 6 With respect to 391-3-20-.06, GA EPD provided additional changes that the GA DNR Board adopted on January 31, 2014 and became state-effective on June 19, 2014.

The proposed changes are to update the SIP to remove obsolete references, clarify the State's I/M requirements, and update terminology, including to reflect advances in technology. These proposed changes include adding, removing, and revising definitions applicable to the Georgia I/M Regulation. EPA is proposing to determine that the changes will not impact emissions. Additional detail on the changes and EPA's analysis is contained in Section III.

Georgia's March 15, 2019, SIP revision seeks to modify the following sections of the Georgia's SIP-approved I/M Regulation: Rule 391-3-20-.01, “Definitions;” Rule 391-3-20-.03, “Covered Vehicles: Exemptions;” Rule 391-3-20-.04, “Emission Inspection Procedures;” Rule 391-3-20-.05, “Emission Standards;” Rule 391-3-20-.06, “Testing of Exhaust Emissions by Remote Sensing Technology or Other Means;” Rule 391-3-20-.07, “Inspection Equipment System Specification;” Rule 391-3-20-.09, “Inspection Station Requirements;” Rule 391-3-20-.10, “Certificates of Authorization;” Rule 391-3-20-.11, “Inspector Qualifications and Certification;” Rule 391-3-20-.13, “Certificate of Emission Inspection;” Rule 391-3-20-.15, “Repairs and Retests;” Rule 391-3-20-.17, “Waivers;” and Rule 391-3-20-.18, “Sale of Vehicles.” EPA's analysis of these changes is provided in sections III.A through III.N.

Georgia's March 15, 2019, SIP revision includes the following: (1) Changes to the definitions of Acceleration Simulation Mode 2525/5015 exhaust emission test, Calibration, DLC, E-Certs, Georgia Analyzer System, Grandfathered Vehicle, Light Duty Vehicle, Management Contractor, Station Owner, and 2-speed idle (TSI) test; (2) additions of definitions for Certificate of Authorization, Certificate of Emissions Inspection, Emissions Inspector Certification Training Program Manual, Georgia Analyzer System Hardware and Software Specifications, Georgia's Clean Air Force, Inspection Term, Responsible Motor Vehicle, Revolutions per Minute, and State-Certified Emissions Inspection Station; and (3) removal of the terms I/M Inspection Procedures Manual, I/M Test Manual, and State Inspection Program. EPA has evaluated the changes to the definitions and has made the preliminary determination that the changes are to clarify the requirements, to delete obsolete references, and to add definitions. EPA's analysis of each of these changes is provided in further detail in the following discussion.

The following provides details and EPA's analysis of definition rule provisions related to the Georgia I/M program that were revised by Georgia, and for which the State has requested that EPA incorporate into the Georgia SIP.

The term “Acceleration Simulation Mode 2525/5015 exhaust emission test” is revised to remove references to a chassis dynamometer and the I/M Inspection Procedures Manual, which are obsolete. 7 The rule now provides specific language on testing requirements by identifying the manner in which 2525 and 5015 tests are to be run (25 percent engine load at 25 miles per hour and 50 percent engine load at 15 miles per hour, respectively). EPA has made the preliminary determination that these changes are SIP strengthening because the edits provide additional clarity within the SIP and will not impact emissions. Therefore, EPA is proposing to approve this change.

The term of “Calibration” contains a minor revision to more clearly explain the test values of the GAS emissions bench. EPA has made the preliminary determination that this change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “DLC” adds the word “diagnostic” to the definition to include both data and the diagnostics. This addition is consistent with the outputs the tests provides. EPA has made the preliminary determination that this minor change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “E-Certs” adds the word blank to electronic certification of emission inspection, to avoid confusion that they are not prepopulated, and adds wording that these forms must be purchased by the official emission inspection station preforming the test. EPA has made the preliminary determination that this minor change will not impact emissions. Therefore, EPA is proposing to approve this change.

The definition of “Georgia Analyzer System” clarifies that this test system must be approved by GA EPD. EPA has made the preliminary determination that this minor change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “Grandfathered Vehicle” adds language to clarify that vehicles manufactured outside of the United States are subject to the Georgia Motor Vehicle Emission Inspection and Maintenance Act. EPA has made the preliminary determination that this minor change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term light duty vehicle is revised to specify that such vehicles have a gross vehicle weight rating (“GVWR”) 8,500 pounds or less. This change is intended to avoid confusion as to which vehicles are considered light duty and revises the term to match the federal vehicle classification and 40 CFR 51.356. EPA has made the preliminary determination that this change is consistent with EPA's inspection and maintenance regulations at 40 CFR 51 subpart S and will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “Management Contractor” is revised to remove the word “certain” before the other functions that the management contractor performs for the state I/M program. EPA has made the preliminary determination that this minor change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “Station Owner” is revised to specify that the entity is the owner or has control of the daily operation of an inspection station and is not the person preforming the actual emissions test. EPA notes that the person certified to perform emissions is defined as “Inspector.” EPA has made the preliminary determination that this change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “2-speed idle (TSI)” test is revised to remove a reference to the I/M Inspection Procedures Manual and instead provide specific language on the testing requirement by describing that the TSI test is run at idle at revolutions per minute (RPM) speed and higher RPM speed as determined by the GAS Specs. EPA has made the preliminary determination that this change is SIP strengthening because the edits provide additional clarity within the SIP and will not impact emissions. EPA has made the preliminary determination that this change will not impact emissions. Therefore, EPA is proposing to approve this change.

The following provides details and EPA's analysis of definition rule provisions related to the Georgia I/M program that were added by Georgia, and for which the State has requested that EPA incorporate into the Georgia SIP.

The term “Certificate of Authorization” is defined as a certificate issued to each station designated as an official emissions station. EPA has made the preliminary determination that this change is SIP strengthening by identifying the different types of I/M-related certificates issued by GA EPD and will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “Certificate of Emissions Inspection” is defined as a certificate issued to stations that have been inspected and approved by GA EPD. EPA has made the preliminary determination that this change is SIP strengthening by identifying the different types of I/M-related certificates issued by GA EPD and will not impact emissions. Therefore, EPA is proposing to approve this change.

The definition of “Emissions Inspector Certification Training Program Manual” is added to provide that the manual is supplied to inspectors during the initial certification and replaces the I/M Inspection Procedures Manual. It also adds informational language that the manual is available on-line on the Georgia Clean Air Force (GCAF) website. EPA has made the preliminary determination that these changes will not negatively impact implementation of the I/M program and will not impact emissions. Therefore, EPA is proposing to approve this change.

The changes include the addition of the term “Georgia Analyzer System Hardware and Software Specifications” (“GAS Specs”), which provides the specifications for the hardware and software requirements of the Georgia Analyzer System (“GAS”). EPA has made the preliminary determination that this change is SIP strengthening by providing clarification as to the exact hardware and software requirements for the GAS Specs system used and will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “Georgia's Clean Air Force” is added, defined as the partnership between GA EPD and the Management Contractor to implement Georgia's I/M Program. This term is used throughout the program and is added to provide clarity as to who this group is and its relationship to GA EPD and the state I/M program. EPA has made the preliminary determination that this change is consistent with 40 CFR part 51 Subpart S and will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “Inspection Term” is added. This term is defined as the time period a certificate of emission inspection is considered valid. EPA notes that time period of the inspection term is provided in 391-3-20-.12. EPA has made the preliminary determination that this change provides additional clarity and will not impact emissions. Therefore, EPA is proposing to approve this change.

The definition of “Responsible Motor Vehicle” is added to provide clarity as to which vehicles are subject to the requirements of the I/M program, specifically those defined as light duty vehicles or light duty trucks. The EPA has made the preliminary determination that the definition is consistent with 40 CFR part 51 subpart S ( see, e.g. 40 CFR 51.351), and the change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “Revolutions per Minute” is added to explain that RPM means the number of times the crankshaft of an engine makes a complete 360 degree turn in one minute. EPA has made the preliminary determination the definition is consistent with the federal testing requirement, 8 and the change will not impact emissions. Therefore, EPA is proposing to approve this change.

The term “State Certified Emissions Inspection Station” is defined as a facility that has met all the qualifications of the Georgia Air Quality Control Act (“GAQCA”) and the Georgia I/M Regulation and is certified by the GA EPD Director. EPA has made the preliminary determination that this change is SIP strengthening by providing additional clarity within the SIP, will not impact implementation of the SIP and will not impact emissions. Therefore, EPA is proposing to approve this change.

The following provides details and EPA's analysis of definition rule provisions related to the Georgia I/M program that the State has requested EPA remove from the Georgia SIP.

Georgia requests removal of the term “I/M Inspection Procedures Manual” from the SIP. This term is no longer used in the Georgia I/M Regulation, as reliance in the program on hard copy manuals has been replaced with the GAS system. In addition, this manual has been replaced with the Emissions Inspector Certification Training Program Manual, which is supplied to emissions inspectors upon their initial certification. EPA has made the preliminary determination that this change will not impact emissions. Therefore, EPA is proposing to approve this change.

Georgia requests removal of the term “I/M Test Manual” from the SIP. This term is no longer used in the Georgia I/M Regulation, as reliance in the program on hard copy manuals has been replaced with the GAS system. EPA has made the preliminary determination that this change will not impact emissions. Therefore, EPA is proposing to approve this change.

Georgia requests removal of the term “State Inspection Program” from the SIP. This term is no longer used in the Georgia I/M Regulation as 391-3-20 now references the program as the “Georgia I/M Program.” EPA has made the preliminary determination that this change will not affect implementation of the SIP and will not impact emissions. Therefore, EPA is proposing to approve this change.

Rule 391-3-20-.03, “Covered Vehicles: Exemptions,” is being amended for clarity and consistency with terminology, such as replacing “covered vehicle” with “responsible motor vehicle” to differentiate between the term defined in 391-3-20-.01 and the applicability of “Covered Vehicles” as defined in 391-3-20-.03. Further, changes to 391-3-20-.03 clarify that 391-3-20 applies to all vehicles required to be registered rather than just vehicles that are registered or are pending registration.

EPA has reviewed the changes and preliminarily determined that these changes do not impact emissions and are consistent with 40 CFR 51 subpart S. These changes are SIP strengthening by providing additional clarity to the SIP. Accordingly, EPA is proposing to approve the changes to Rule 391-3-20-.03 into Georgia's SIP.

Rule 391-3-20-.04, “Emission Inspection Procedures,” is being amended to insert the word “initial” into the requirement for annual inspections to differentiate with re-inspections in the same year, to require inspectors to perform reinspection of the portions of a previously-failed inspection, and to revise terminology for consistency within Georgia's regulations. In addition, the changes allow inspectors to use any published traction control chart available, rather than a specific EPD approved traction control chart. EPA has reviewed these changes and preliminarily determined that they do not impact emissions and are consistent with 40 CFR part 51 subpart S. Accordingly, EPA is proposing to approve the changes to Rule 391-3-20-.04 into Georgia's SIP.

Rule 391-3-20-.05, “Emission Standards” is amended to delete an outdated reference to the emission inspector training program as well as updating references from the test manual name to the GAS. Rule 391-3-20-.05 adds clarifying language to reflect that the vehicle manufacturer programs the malfunction illumination light. EPA has made the preliminary determination that these changes provide additional clarity within the SIP, and will not impact emissions. Accordingly, EPA is proposing to approve the changes to Rule 391-3-20-.05 into Georgia's SIP.

Rule 391-3-20-.06, “Testing of Exhaust Emissions by Remote Sensing Technology or Other Means,” is being amended to require on-road testing of the lesser of 0.5 percent of the vehicle population or 20,000 vehicles, and also to provide flexibility to the State as to the type of on-road testing that can be conducted. 9 In addition, the changes replace a testing scheme for cars that are identified as high emitting vehicles by on-road testing with the testing procedures in 391-3-20-.04 and .05. Last, edits to 391-3-20-.06 remove a provision specifying that vehicle owners would be in violation of section 391-3-20 under certain circumstances.

EPA has reviewed the changes and preliminarily determined that these changes will not impact emissions and are consistent with 40 CFR part 51 subpart S. With respect to the additional flexibility as to the type of on-road testing, the State will be obligated to conduct on-road testing on the lesser of 0.5 percent of the vehicle population or 20,000 vehicles, and identify high emitting vehicles, consistent with 40 CFR part 51 subpart S. Since high emitting vehicles must present their vehicles for emissions inspection, and—if the high emitting vehicle fails the emission inspection under 391-3-20-.04 and 391-3-20-.05—must pass a reinspection under 391-3-20-.15, EPA does not anticipate emissions increases associated with this change. With respect to the removal of the provision regarding violations, EPA does not anticipate emissions increases associated with the removal of this requirement because the regulations will continue to require a vehicle owner present the vehicle for inspection within 30 days of notification. Further, without a passing emission certificate the vehicle cannot be registered, and without registration, the vehicle cannot legally operate on highways. Accordingly, EPA is proposing to approve the revisions to Rule 391-3-20-.06 into Georgia's SIP.

Rule 391-3-20-.07, “Inspection Equipment System Specification,” is being amended to add language requiring station owners to acquire a specific manufacturer's published Fuel Cap Testing Application Chart, and to clarify that inspection stations must have an appropriate GAS for their class of station. In addition, the changes to 391-3-20-.07 include language to specify that the inspection stations must have systems that have been approved by the GA EPD.

EPA has reviewed the changes and preliminarily determined that these changes will not impact emissions and are consistent with 40 CFR part 51 subpart S. These changes are SIP strengthening by updating the SIP to reflect more recent technology and providing additional clarity to the SIP. Accordingly, EPA is proposing to approve the revisions to Rule 391-3-20-.07 into Georgia's SIP.

Rule 391-3-20-.09, “Inspection Station Requirements,” is amended to remove language at 391-3-20-.09(c)(4), specifying that the Director can suspend or revoke a station's Certificate of Authorization if it fails to comply with the requirements of the mobile GAS. Additional changes identify the materials that must be provided by a public inspection station by adding language to specify that the relevant poster is the one provided at the time of station certification, and that a Q&A brochure must be provided. Changes to the requirements for station owners include edits to require a specific Emissions Repair Form (replacing the term “repair information form”), broaden the type of traction control charts each station must maintain, provide a web address for the location of the OBD DLC Location Chart, and require station owners to maintain Version 1.4 of the Emissions Inspector Certification Training Program Manual. Requirements for fleet inspection stations are revised to remove language requiring certain fleet inspection technicians to be certified in the area of advanced automotive engine diagnostic and repair. In addition, 391-3-20-.09 is amended to clarify that the sign posted at inspection stations reflects a state certified station, to clarify that the Repair Watch Public Report is issued quarterly, and to require station owners to provide an email address with their contact information. Finally, changes to paragraphs (i)(3) and (5) revise the requirements for the required type of internet connection.

EPA has reviewed the changes and has made the preliminary determination that these changes do not impact emissions and are consistent with 40 CFR part 51 subpart S. With respect to the removal of language at 391-3-1-.09(c)(4), the general provisions regarding Certificates of Authorization at 391-3-20-.10 provide that the GA EPD Director can suspend or revoke a station's Certificate of Authorization. With respect to the changes related to internet requirements and the removal of the requirement for certain fleet inspection technicians to be certified in the area of advanced automotive engine diagnostic and repair, the changes reflect current technology as the diagnostic tools now perform the required analysis, and EPA is proposing to make the determination that the changes will not impact implementation of the SIP and will not impact emissions. The remainder of the changes, including those regarding materials and internet requirements, are minor changes that will not impact the implementation of the I/M testing to be performed and thus will not impact emissions. Accordingly, EPA is proposing to approve the change to Rule 391-3-20-.09 into Georgia's SIP.

Rule 391-3-20-.10, “Certificates of Authorization,” is being amended to use the acronym for Georgia Analyzer System and deleting spelling out the words. EPA has reviewed the changes and has made the preliminary determination that these minor changes do not impact emissions and are consistent with the I/M program requirements. Accordingly, EPA is proposing to approve the change to Rule 391-3-20-.10 into Georgia's SIP.

Rule 391-3-20-.11, “Inspector Qualifications and Certification,” is amended to clarify that an inspector's certificate is valid for two years from the date of issuance; to state that an inspector's certificate application is due 30 days before the expiration of an existing application; and to add language that a certificate will be renewed on timely receipt of an application, if there is no cause to deny a certificate; and clarify that it is the inspector that must pass the written test. In addition, 391-3-20-.11 is revised to require emissions inspectors to pass a practical (rather than hands-on) test, and to have knowledge about conducting all parts of the inspection (replacing the words “can perform”).

EPA has reviewed the changes and has made the preliminary determination that these minor changes do not impact implementation of the SIP, do not impact emissions, and are consistent with 40 CFR part 51 subpart S. Accordingly, EPA is proposing to approve the revisions to Rule 391-3-20-.11 into Georgia's SIP.

Rule 391-3-20-.13, “Certificate of Emission Inspection,” is amended replace terms with standard terminology (for example “Emissions Repair Form” replaces “repair information form”), to provide the website address to obtain an Emissions Repair Form, and to clarify that the Repair Watch Public Report is issued quarterly. EPA has reviewed these minor changes and preliminarily finds that the changes are SIP strengthening by providing additional clarity to the SIP. Accordingly, EPA is proposing to approve the revisions to Rule 391-3-20-.13 into Georgia's SIP.

Rule 391-3-20-.15, “Repairs and Retests,” is being amended by replacing the term “repair information form” with standard terminology of “Emissions Repair Form.” EPA has reviewed this change and is preliminarily determining that it is a minor change that is SIP strengthening by providing additional clarity to the SIP. Accordingly, EPA is proposing to approve this change to Rule 391-3-20-.15 into the Georgia SIP.

Rule 391-3-20-.17, “Waivers,” is revised to specify the dollar amount of expenditures that must be made annually in order to qualify for a waiver from the I/M program requirements, and language is added to provide a web-address where the waiver amount will be posted. In addition, language is added to require the issuer of a waiver to visually inspect to confirm that repairs have been made.

EPA has reviewed these minor changes and preliminarily finds that the changes are SIP strengthening by providing additional clarity to the SIP, are consistent with 40 CFR part 51 subpart S, and will not impact emissions. Accordingly, EPA is proposing to approve the changes to Rule 391-3-20-.17 into Georgia's SIP.

Rule 391-3-20-.18, “Sale of Vehicles,” is being amended to add that no person shall sell a vehicle without a valid passing certificate of emissions inspection if the vehicle will be registered in a covered county. In addition, language imposing criminal and civil penalties is removed.

EPA has reviewed these administrative changes and determined that do not impact emissions and are consistent with the 40 CFR part 51 subpart S. While the language imposing criminal and civil penalties is removed, a valid passing certificate of emissions inspections must be provided in order to register a vehicle for highway use. Since without an emission certificate the vehicle cannot be registered, and without registration, the vehicle cannot legally operate on highways, EPA does not anticipate emissions increases associated with the removal of the specific penalties previously listed in 391-3-20-.18. 10 Accordingly, EPA is proposing to approve this change to Rule 391-3-20-.18 into the Georgia SIP.

In addition, Georgia's March 15, 2019, SIP revision contains several minor changes to Georgia's I/M Regulation 391-3-20. For example, rule 391-3-20-.01 contains changes to numbering to reflect the addition and deletion of several definitions, as described more fully above; rule 391-3-20-.03, “Covered Vehicles: Exemptions,” contains changes for grammatical purposes and to correct capitalization; and rules 391-3-20-.01, 391-3-20-.09 and 391-3-20-.11 contain changes that replace the term “State Inspection” with “I/M” program. Also, changes are made to replace terms with acronyms. For example, multiple rules include adding the acronym “GAS” or replacing “Georgia Analyzer System” with the acronym “GAS;” and 391-3-20-.13 substitutes the acronym “EPA” for “U.S. Environmental Protection Agency.” Further, the March 15, 2019, SIP revision contains a number of changes to reflect changing technology, such as removing references to hard copy manuals, since the material is now found within the GAS program. EPA is making the preliminary determination that these minor changes will not affect implementation of the SIP and thus will not impact emissions. Therefore, EPA is proposing to approve these changes into the SIP.

In this rule, EPA is proposing to include in a final GA EPD rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Georgia Rules 391-3-20-.04, 391-3-20-.05, 391-3-20-.07, 391-3-20-.08, 391-3-20-.10, 391-3-20-.13, 391-3-20-.15, 391-3-20-.18, and 391-3-20-.20, state effective on March 28, 2018, and Georgia Rules 391-3-20-.01, 391-3-20-.03, 391-3-20-.06, 391-3-20-.09, 391-3-20-.11, and 391-3-20-.17, state effective on February 17, 2019, within Chapter 391-3-20, titled “Enhanced inspection and Maintenance” to remove obsolete references, clarify the State's I/M requirements, and update terminology, including to reflect advances in technology. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

For the reasons explained above, EPA is proposing to approve Georgia's March 15, 2019, SIP revision. Specifically, EPA is proposing to approve the changes to Georgia's I/M Regulation 391-3-20 because they are consistent with the CAA and 40 CFR part 51 subpart S.

Under the CAA, the Administrator is required to approve a SIP submittal 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, if they meet the criteria of the CAA. Accordingly, this proposed action merely proposes to approve state law as meeting Federal requirements and does not propose to impose additional requirements beyond those imposed by state law. For that reason, this proposed 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, October 7, 1999);

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

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

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

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

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

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

The harvest of red snapper from South Atlantic Federal waters was prohibited in 2010 through Amendment 17A to the Snapper Grouper FMP when the stock was determined to be overfished and undergoing overfishing (75 FR 76874; December 9, 2010). In 2013, the Council developed a process for allowing limited harvest of red snapper through Amendment 28 to the Snapper-Grouper FMP (78 FR 44461; July 24, 2013). In 2018, the Council revised the commercial and recreational annual catch limits (ACLs) through Amendment 43 to the Snapper-Grouper FMP (83 FR 35428; July 26, 2018).

The commercial ACL is 124,815 lb (56,615 kg) round weight, and the commercial season begins on the second Monday in July each year. The commercial ACL is monitored during the season and the sector is closed when the ACL is reached or projected to be reached. The commercial fishing season was open for 60 days in 2017, 116 days in 2018, and 54 days in 2019.

The recreational ACL is 29,656 fish and the season begins on the second Friday in July, and the recreational season consists of weekends only (Friday, Saturday, and Sunday). The length of the recreational red snapper season is projected based on catch rate estimates from previous years, and the length of the projected fishing season is announced each year in the Federal Register before the start of the season.

For South Atlantic red snapper, NMFS annually projects the number of days that it would take for the commercial and recreational sectors to reach their respective ACL. If NMFS projects the South Atlantic red snapper season (commercial or recreational) to be 3 days or less, the respective season would not open for that fishing year. Under both current and proposed regulations, the red snapper commercial and recreational seasons are projected and managed independently of each other; that is, harvest for one sector can occur without the other. NMFS notes that to date, there has not been a fishing year where one sector was allowed harvest of red snapper and the other was not. NMFS initially implemented the 3-day minimum season length provision in 2013 because the Council determined in Amendment 28 to the Snapper-Grouper FMP that a season of less than 4 days would not provide sufficient fishing opportunity to the public (78 FR 44461, July 24, 2013).

Recreational fishermen have expressed concern to the Council and NMFS that as the South Atlantic red snapper population recovers and catch rates improve, access to the red snapper resource could decline due to shortened fishing seasons. Specifically, as the red snapper population rebuilds, more fish are available for harvest and the South Atlantic red snapper recreational fishing season has generally experienced increased effort over the last 3 years, particularly off the east coast of Florida. Since the recreational red snapper ACL has remained the same over recent years, fishing seasons in future years could get shorter despite the population rebuilding because the ACL would be met in less time due to the increased effort and increased availability of fish. The length of the red snapper recreational season has declined from 10 days in 2017, to 6 days in 2018, and to 5 days in 2019 as a result of the recreational ACL being projected to be reached sooner in each year. To better ensure recreational access to red snapper regardless of season length projections, the Council is proposing in Regulatory Amendment 33 to remove the 3-day minimum season length requirement. In addition, because the commercial season for red snapper has remained open for several months each year in recent years when harvest of red snapper was allowed, NMFS expects that the commercial season duration will not be impacted by this action.

This proposed rule would remove the requirement that if a red snapper season (commercial or recreational) is projected by NMFS to be 3 days or less, the respective fishing season will not open for that fishing year. If this provision is removed, red snapper harvest could be open for either commercial or recreational harvest for less than 4 days. Therefore, for the recreational sector specifically, this measure could allow for a fishing season to occur that otherwise would not be allowed under the existing regulations. NMFS expects this measure to increase the flexibility for recreational sector access to red snapper and enhance recreational fishing opportunities. NMFS notes that if this measure is implemented, the recreational ACL and accountability measures are not changing in this rule, and thus the measure is not expected to negatively impact the stock.

NMFS is analyzing the data and information on which the 2020 season length is based, and expects to announce information about the 2020 recreational and commercial fishing seasons soon.

Regulatory Amendment 33 also contains an action to consider changing the start date of the commercial season. Currently, unless otherwise specified, the commercial season is expected to open on the second Monday of July. The Council considered different commercial season start dates of May 1 and the second Monday of June in Regulatory Amendment 33. However, after receiving public input the Council decided not to modify the start date for the commercial red snapper season. The Council determined that a commercial season start date change may not benefit the majority of stakeholders or provide overall biological benefits to the red snapper stock. The Council also determined that the change would likely create conflict between the commercial and recreational sectors as the red snapper season for the commercial sector would begin over a month before the recreational sector. Therefore, the current commercial season start date of the second Monday in July will remain in place.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with Regulatory Amendment 33, the Snapper-Grouper FMP, the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:

A description of the proposed rule and its purpose are contained at the beginning of the SUPPLEMENTARY INFORMATION section and in the SUMMARY section of the preamble. The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, this proposed rule does not implicate the Paperwork Reduction Act.

This proposed rule would remove the requirement that if the South Atlantic red snapper season (commercial or recreational) is projected to be 3 days or less, the respective season would not open for that fishing year. Because the RFA does not apply to recreational anglers, only the effects on commercial vessels were analyzed. Any impact to the profitability or competitiveness of charter vessel and headboat (for-hire) fishing businesses would be the result of changes in for-hire angler demand and would, therefore, be indirect in nature; the RFA does not consider indirect impacts.

The proposed action would directly affect federally permitted commercial fishermen fishing for South Atlantic red snapper. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

Any fishing vessel that harvests and sells any of the snapper-grouper species from the South Atlantic exclusive economic zone must have a valid South Atlantic commercial snapper-grouper permit, which is a limited access permit. As of January 23, 2020, there were 523 valid or renewable South Atlantic snapper-grouper unlimited permits and 104 valid or renewable 225-lb (102 kg) trip-limited permits. After a permit expires, it can be renewed or transferred up to 1 year after the date of expiration. In any given year, however, not all federally permitted commercial vessels harvest red snapper in the South Atlantic. From 2014 through 2018, an average of 113 federally permitted commercial vessel took 749 trips and landed approximately 49,000 lb (22,226 kg), gutted weight, of red snapper and 306,000 lb (138,799 kg), gutted weight, of other species co-harvested with red snapper. These vessels also took an average of 3,128 trips that landed approximately 1.94 million lb (879,968 kg), gutted weight, of various species but without red snapper. These vessels generated a total of approximately $8.40 million (2018 dollars) of revenues from all species, of which approximately $1.03 million (2018 dollars) were from red snapper. The 2014-2018 average revenue per vessel was approximately $84,000 (2018 dollars). The average annual price per lb, gutted weight, of red snapper was $5.49 (2018 dollars) and ranged from $4.28 in 2015 to $5.57 in 2018.

Based on the revenue information, all commercial vessels directly affected by the proposed action may be considered small entities. Because all directly affected entities are small entities, the issue of disproportional effects on small versus large entities does not arise.

The commercial harvest of red snapper is limited by the commercial ACL. If the projected red snapper season is determined to be more than 3 days, the economic effects of the proposed action would be the same as those of the status quo. If the projected red snapper fishing season is 3 days or less, the proposed action would allow the commercial sector to generate some revenues where otherwise the season may be forgone based on a projected shortened season. In either scenario, the proposed action is expected to not reduce the revenues and profits of directly affected small entities.

The information provided above supports a determination that this proposed rule would not have a significant economic impact on a substantial number of small entities. Because this proposed rule, if implemented, is not expected to have a significant economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

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