The FRTIB administers the Thrift Savings Plan (TSP), which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

On February 18, 2020, pursuant to its authority under the Thrift Savings Plan Enhancement Act of 2009 and National Defense Authorization Act for Fiscal Year 2016, 1 the FRTIB published a proposed rule with request for comments in the Federal Register (85 FR 8767) to increase the automatic enrollment rate and the automatic re-enrollment rate to 5 percent, effective October 1, 2020 and January 1, 2021, respectively. In addition, the FRTIB proposed to amend its rule regarding installment payments calculated based on life expectancy to clarify that, for each year following the year in which the installment payments begin, the installment payment amount for the year will be calculated on the first installment payment date of that year.

The FRTIB received three comments on the proposed rule. Two comments expressed strong support for the automatic enrollment and re-enrollment rate change noting, in particular, the importance of ensuring that a participant receives the full amount of Agency/Service Matching Contributions he or she is entitled to. The third comment did not address the substance of the regulation. Therefore, the FRTIB is publishing the proposed rule as final without change.

As noted in the preamble to the proposed rule, participants who are automatically enrolled in the TSP as of September 30, 2020 will not be affected by the automatic enrollment rate increase. However, BRS participants who are automatically enrolled in the TSP as of September 30, 2020 and subsequently terminate their TSP contributions will be affected by the automatic re-enrollment rate increase unless they elect to resume TSP contributions by the last full pay period of the year. All participants may elect to change their contribution rates at any time by contacting their respective agencies.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees, members of the uniformed services who participate in the TSP, and beneficiary participants.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, and 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under 2 U.S.C. 1532 is not required.

Pursuant to 5 U.S.C. 810(a)(1)(A), the Agency submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the Federal Register . This rule is not a major rule as defined at 5 U.S.C. 804(2).

For the reasons stated in the preamble, the FRTIB amends 5 CFR Chapter VI as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE GE90-110B1 and GE90-115B model turbofan engines with a certain HPT rotor stage 2 disk installed. The NPRM published in the Federal Register on May 18, 2020 (85 FR 29676). The NPRM was prompted by a report from the manufacturer that a subsurface anomaly was found on a HPT rotor stage 2 disk. The NPRM proposed to require a USI of the HPT rotor stage 2 disk and, depending on the result of the inspection, replacement of the HPT rotor stage 2 disk with a part eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comments received. The Boeing Company, FedEx Express, United Airlines, and the Air Line Pilots Association, International, supported the NPRM.

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

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

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

The FAA reviewed GE GE90-100 Service Bulletin (SB) 72-0838, dated January 31, 2020. The SB describes procedures for performing an USI of the HPT rotor stage 2 disk. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 28 engines installed on airplanes of U.S. registry. Based on updated information from the manufacturer, the FAA revised the number of engines installed on airplanes of U.S. registry from 12 in the NPRM to 28 in this final rule.

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

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Honeywell ALF502L, ALF502L-2, ALF502L-2A, ALF502L-2C, ALF502L-3, ALF502R-3, ALF502R-3A, ALF502R-4, ALF502R-5, ALF502R-6, LF507-1F, and LF507-1H model turbofan engines. The NPRM published in the Federal Register on May 4, 2020 (85 FR 26375). The NPRM was prompted by a report of an engine experiencing an uncontained release of LPT blades. The NPRM proposed to require initial and repetitive visual inspections of the overspeed fuel solenoid valve assembly and the fuel filter outlet. Depending on the results of these inspections, the NPRM proposed to require inspection of the adjacent fuel system tube assemblies as well as replacement or overhaul of the overspeed fuel solenoid valve assembly. The NPRM also proposed to require periodic overhaul of the overspeed fuel solenoid valve assembly. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA considered the comment received. The National Transportation Safety Board supported the NPRM.

The FAA determined the need to incorporate the latest service information in this AD. The FAA revised the reference to Honeywell Service Bulletin (SB) ALF/LF-72-1120 in paragraph (g) of this AD from Revision 1, dated January 6, 2020, to Revision 2, dated May 14, 2020 (“the SB”). Revision 2 of the SB retains the same visual inspection, overhaul, and replacement instructions as Revision 1. The FAA is, therefore, revising the reference in this AD to Revision 2 so that operators may avoid unnecessary submission of alternative methods of compliance requests.

The FAA determined the need to define a “part eligible for installation” in this AD to clarify the overspeed fuel solenoid valve assemblies that are eligible for installation.

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

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

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

The FAA reviewed Honeywell SB ALF/LF-72-1120, Revision 2, dated May 14, 2020. The SB describes procedures for a one-time inspection and overhaul of the overspeed fuel solenoid valve assembly, fuel tube, and dual heater oil cooler.

The FAA reviewed Honeywell Temporary Revision (TR) No. 72-1022, dated October 14, 2019, to Honeywell Engine Manual Report No. 286.1, Revision 27, dated August 27, 2004 for Honeywell Engine Manual ALF502R. The TR describes procedures for repetitive overhaul of overspeed fuel solenoid valve assemblies installed on Honeywell ALF502R model engines.

The FAA reviewed Honeywell TR No. 72-202, dated October 10, 2019, to Honeywell Engine Manual Report No. 507F.1, Revision 6, dated August 16, 2013, for Honeywell Engine Manual LF507-1F. The TR describes procedures for repetitive overhaul of overspeed fuel solenoid valve assemblies installed on Honeywell LF507-1F model engines.

The FAA reviewed Honeywell TR No. 72-177, dated October 10, 2019, to Honeywell Engine Manual Report No. 507H.1, Revision 5, dated September 30, 1999, for Honeywell Engine Manual LF507-1H. The TR describes procedures for repetitive overhaul of overspeed fuel solenoid valve assemblies installed on Honeywell LF507-1H model engines.

The FAA reviewed Honeywell TR No. 72-57, dated October 29, 2019, to Honeywell Turbofan Engine Overhaul Manual 72-07-07, Revision 1, dated January 31, 2001, for Honeywell Overhaul Manual ALF502L. The TR describes procedures for repetitive overhaul of overspeed fuel solenoid valve assemblies installed on Honeywell ALF502L model engines.

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 reviewed Wright Components, Inc., Component Maintenance Manual (CMM) 73-19-01, Initial Revision, dated July 30, 1982. The CMM describes procedures for overhauling three-way two-position solenoid operated fuel valves, part number 2-303-175-01.

The FAA reviewed Honeywell Service Bulletin (SB) ALF502-72-0001, Revision 24, dated October 29, 2019. The SB describes procedures for repetitive visual inspections of overspeed fuel solenoid valve assemblies installed on Honeywell ALF502R model engines.

The FAA reviewed Honeywell SB LF507-1F-72-1, Revision 10, dated October 29, 2019. The SB describes procedures for repetitive visual inspections of overspeed fuel solenoid valve assemblies installed on Honeywell LF507-1F model engines.

The FAA reviewed Honeywell SB LF507-1H-72-1, Revision 9, dated October 18, 2019. The SB describes procedures for repetitive visual inspections of overspeed fuel solenoid valve assemblies installed on Honeywell LF507-1H model engines.

The FAA reviewed Honeywell SB ALF502-72-0005, Revision 17, dated October 29, 2019. The SB describes procedures for repetitive visual inspections of overspeed fuel solenoid valve assemblies installed on Honeywell ALF502L model engines.

The FAA estimates that this AD affects 210 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Bell Model 204B, 205A-1, and 212 helicopters with TT strap assembly part number (P/N) 204-012-112-005 installed. The NPRM published in the Federal Register on June 9, 2020 (85 FR 35227). The NPRM was prompted by three incidents of fatigue cracking in TT strap assembly P/N 206-010-105-3 installed on Model 206 helicopters. These TT strap assemblies have stainless steel filament windings (wires) encased in a urethane cover, which was manufactured using Caytur 21 (also known as Cature 21) as the urethane-curing accelerator. Caytur 21 contains chlorides, which are retained in the urethane cover after curing and result in premature failure of the urethane cover and subsequent corrosion and failure of the encased wires of the TT strap assemblies. As a result, Bell changed the curing accelerator in the manufacturing process.

Due to manufacturing process similarities of the urethane cover, TT strap assembly P/N 204-012-112-005, which is installed on Model 204B, 205A-1, and 212 helicopters, is affected by the same unsafe condition.

Accordingly, the NPRM proposed to require reducing the life limit of the TT strap assembly from 2,400 total hours time-in-service (TIS) to 1,200 total hours TIS or 18 months since initial installation on any helicopter, whichever occurs first, and creating a component history card or equivalent record. The NPRM also proposed to prohibit installing the affected TT strap assembly on any helicopter.

The actions of this AD are intended to prevent the TT strap assembly from remaining in service beyond its fatigue life. This condition, if not addressed, could result in failure of a TT strap, loss of a main rotor blade, and subsequent loss of control of the helicopter.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA received one comment in support of the NPRM.

The FAA has reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

The service information specifies replacing TT strap assemblies with less than 1,200 hours TIS no later than January 1, 1979, and replacing TT strap assemblies with more than 1,200 hours TIS no later than September 1, 1978. This AD requires reducing the life limit of the TT strap assembly to 1,200 total hours TIS or 18 months since initial installation on any helicopter, whichever occurs first, instead. This AD also prohibits installing the TT strap assembly on any helicopter after the effective date of this AD.

The FAA reviewed Bell Helicopter Textron Alert Service Bulletin (ASB) No. 204-78-3 for Model 204B helicopters, ASB No. 205-78-2 for Model 205A-1 helicopters, and ASB No. 212-78-4 for Model 212 helicopters, all dated April 19, 1978. This service information specifies replacing TT strap assembly P/N 204-012-112-005 at 1,200 hours TIS but no later than January 1, 1979. For any TT strap assembly P/N 204-012-112-005 that already has accumulated 1,200 hours TIS, this service information specifies replacing it no later than September 1, 1978.

The FAA estimates that this AD affects 143 helicopters of U.S. registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Determining the total hours TIS and the total months since initial installation of each TT strap assembly takes about .5 work-hours for an estimated cost of $43 per helicopter.

Replacing each TT strap assembly takes about 10 work-hours and parts cost about $9,000, for an estimated cost of $9,850 per TT strap assembly.

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

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

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

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

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

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

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

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

Authority for This Rulemaking

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

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 37596; June 23, 2020) for Docket No. FAA-2020-0609 to amend the Class E airspace extending upward from 700 feet above the surface at Clarion Municipal Airport, Clarion, IA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile (increased from a 6.3-mile) radius of Clarion Municipal Airport, Clarion, IA; removes the Clarion NDB and associated extensions from the airspace legal description; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is due to an airspace review caused by the decommissioning of the Clarion NDB.

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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

Authority for this Rulemaking

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

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 36174; June 15, 2020) for Docket No. FAA-2020-0514 to amend the Class E airspace extending upward from 700 feet above the surface at Clinton Regional Airport, Clinton, MO. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface to within a 6.6-mile (increased from 6.4-mile) radius of Clinton Regional Airport, Clinton, MO; removes the Golden Valley NDB and associated extensions from the airspace legal description; and updates the name and the geographic coordinates of the airport (previously Clinton Memorial Airport) to coincide with the FAA's aeronautical database.

This action is due to an airspace review due to the decommissioning of the Golden Valley NDB which provided navigation information to the instrument procedures at this airport.

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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it vertically subdivides the restricted airspace at Camp Edwards, MA, into three sections to enable more efficient use of airspace.

Restricted area R-4101 at Camp Edwards, MA, currently extends from the surface to 9,000 feet MSL. The time of designation for the area is “From 0600 to 1800 local time, daily, or other times as specified by NOTAM issued 48 hours in advance.”

An FAA review of the utilization reports for R-4101 revealed that most activities being conducted only require restricted airspace up to 2,500 feet MSL. Less frequent activities are conducted that require restricted airspace up to 5,000 feet MSL, and 9,000 feet MSL, respectively.

To provide for more efficient use of airspace, the FAA and the using agency agreed to subdivide R-4101 vertically into three areas: R-4101A extending from the surface to but not including 2,500 feet MSL; R-4101B extending from 2,500 feet MSL to but not including 5,000 feet MSL; and R-4101C extending from 5,000 feet MSL to 9,000 feet MSL. The new configuration enables activation of restricted airspace to the lower altitude required for the majority of the using agency's training needs while maintaining the ability to activate additional restricted airspace for missions that require higher altitudes.

These changes will accommodate the using agency's requirements while releasing unneeded restricted airspace for access by other users. The lateral boundaries of the restricted airspace, the overall vertical limits, and the activities conducted within the airspace are unchanged.

This rule amends Title 14 Code of Federal Regulations (14 CFR) part 73 by subdividing the R-4101 at Camp Edwards, MA, into three areas: R-4101A extending from the surface to but not including 2,500 feet MSL; R-4101B extending from 2,500 feet MSL to but not including 5,000 feet MSL; and R-4101C extending from 5,000 feet MSL to 9,000 feet MSL. The time of designation for R-4101A and B remains the same as currently designated for R-4101: “From 0600 to 1800 local time, daily, or other times as specified by NOTAM issued 48 hours in advance.” The time of designation for R-4101C, due to its less frequent utilization, is “By NOTAM issued 48 hours in advance.” The changes are fully contained within the existing lateral and vertical dimensions of R-4101, and the activities conducted within the restricted areas are unchanged.

These changes enhance the efficient use of the National Airspace System by providing for: Activation of the minimum amount of restricted airspace needed for the specific mission being conducted; releasing unneeded restricted airspace for access by other users; and, more clearly informing the public of when to expect activation of the restricted airspace.

In addition, the modifications do not change the current lateral boundaries, overall designated altitudes, or activities conducted within the restricted areas; therefore, I find that notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

The FAA has determined that this action of modifying restricted area R-4101 at Camp Edwards, MA, by vertically subdividing the area into R-4101A, R-4101B, and R-4101C, qualifies for categorical exclusion under the National Environmental Policy Act (NEPA) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). This action also qualifies for FAA categorical exclusion under paragraph 5-6.5d, which categorically excludes from further environmental impact review “Modification of the technical description of special use airspace (SUA) that does not alter the dimensions, altitudes, or times of designation of the airspace (such as changes in designation of the controlling or using agency, or correction of typographical errors).” As such, this action is not expected to result in any potentially significant environmental impacts. A separate categorical exclusion declaration document citing the applicability of FAA categorical exclusion 5-6.5d was signed on May 21, 2020. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73, as follows:

On March 18, 2020, President Trump signed into law the FFCRA, which creates two new emergency paid leave requirements in response to the COVID-19 global pandemic. Division E of the FFCRA, “The Emergency Paid Sick Leave Act” (EPSLA), entitles certain employees of covered employers to take up to two weeks of paid sick leave if the employee is unable to work for specific qualifying reasons related to COVID-19. These qualifying reasons are: (1) Being subject to a Federal, state, or local quarantine or isolation order related to COVID-19; (2) being advised by a health care provider to self-quarantine due to COVID-19 concerns; (3) experiencing COVID-19 symptoms and seeking a medical diagnosis; (4) caring for another individual who is either subject to a Federal, state, or local quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to COVID-19 concerns; (5) caring for the employee's son or daughter whose school, place of care, or child care provider is closed or unavailable due to COVID-19 related reasons; and (6) experiencing any other substantially similar condition as specified by the Secretary of Health and Human Services (HHS). 1 FFCRA section 5102(a)(1)-(6). Division C of the FFCRA, “The Emergency Family and Medical Leave Expansion Act” (EFMLEA), which amends Title I of the Family and Medical Leave Act, 29 U.S.C. 2601 et seq. (FMLA), permits certain employees of covered employers to take up to 12 weeks of expanded family and medical leave, ten of which are paid, if the employee is unable to work due to a need to care for his or her son or daughter whose school, place of care, or child care provider is closed or unavailable due to COVID-19 related reasons. FFCRA section 3012, adding FMLA section 110(a)(2)(A).

These paid sick leave and expanded family and medical leave requirements will expire on December 31, 2020. The costs to private-sector employers of providing paid leave required by the EPSLA and the EFMLEA (collectively “FFCRA leave”) are ultimately covered by the Federal Government as Congress provided tax credits for these employers in the full amount of any FFCRA leave taken by their employees. On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136 (CARES Act), which amends certain provisions of the EPSLA and the provisions of the FMLA added by the EFMLEA.

FFCRA leave is part of a larger set of Federal Government-provided COVID-19 economic relief programs, which also include the Paycheck Protection Program and expanded unemployment benefits provided under the CARES Act. The Paycheck Protection Program, CARES Act sections 1101-1114, provided an incentive for employers to keep workers on their payrolls. FFCRA leave provides paid leave to certain employees who continue to be employed but are prevented from working for specific COVID-19 related reasons. And the CARES Act's expanded unemployment benefits, CARES Act sections 2101-2116, provided help to workers whose positions have been affected by COVID-19. Together, these three programs provide relief with respect to: (1) Employed individuals whose employers continue to pay them; (2) employed individuals who must take leave from work; and (3) unemployed individuals who no longer had work or had as much work.

The FFCRA grants authority to the Secretary to issue regulations for certain purposes. Section 3102(b) of the FFCRA, as amended by section 3611(7) of the CARES Act, and 5111(3) of the FFCRA grant the Secretary authority to issue regulations “as necessary, to carry out the purposes of this Act, including to ensure consistency” between the EPSLA, the EFMLEA, and the Act's tax credit reimbursement provisions. Due to the exigency created by COVID-19, the FFCRA authorizes the Secretary to issue EPSLA and EFMLEA regulations under two exceptions to the usual requirements of the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. One of those exceptions permits issuing a rule without prior public notice or the opportunity for the public to comment if there is good cause to believe that doing so is “impractical, unnecessary, or contrary to the public interest”; the other permits a rule to become effective immediately, rather than after a 30-day delay, if there is good cause to do so. FFCRA sections 3102(b) (as amended by section 3611(7) of the CARES Act), 5111 (referring to 5 U.S.C. 553(b)(B) and (d)(3)). Relying on those exceptions, the Department promulgated a temporary rule to carry out the EPLSA and EFMLEA, which was made public on April 1, 2020. 85 FR 19326 (published April 6, 2020); see also 85 FR 20156-02 (April 10, 2020 correction and correcting amendment to April 1 rule).

On April 14, 2020, the State of New York filed suit in the United States District Court for the Southern District of New York (“District Court”) challenging certain parts of the temporary rule under the APA. On August 3, 2020, the District Court ruled that four parts of the temporary rule are invalid: (1) The requirement under § 826.20 that paid sick leave and expanded family and medical leave are available only if an employee has work from which to take leave; (2) the requirement under § 826.50 that an employee may take FFCRA leave intermittently only with employer approval; (3) the definition of an employee who is a “health care provider,” set forth in § 826.30(c)(1), whom an employer may exclude from being eligible for FFCRA leave; and (4) the statement in § 826.100 that employees who take FFCRA leave must provide their employers with certain documentation before taking leave. New York v. U.S. Dep't of Labor, No. 20-CV-3020 (JPO), 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020). 2

The Department has carefully examined the District Court's opinion and has reevaluated the portions of the temporary rule that the court held were invalid. Given the statutory authorization to invoke exemptions from the usual requirements to engage in notice-and-comment rulemaking and to delay a rule's effective date, see FFCRA sections 3102(b), 5111, the time-limited nature of the FFCRA leave benefits, the urgency of the COVID-19 pandemic and the associated need for FFCRA leave, and the pressing need for clarity in light of the District Court's decision, the Department issues this temporary rule, effective immediately, to reaffirm its regulations in part, revise its regulations in part, and further explain its positions. In summary:

1. The Department reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave and explains further why this requirement is appropriate. This temporary rule clarifies that this requirement applies to all qualifying reasons to take paid sick leave and expanded family and medical leave.

2. The Department reaffirms that, where intermittent FFCRA leave is permitted by the Department's regulations, an employee must obtain his or her employer's approval to take paid sick leave or expanded family and medical leave intermittently under § 825.50 and explains further the basis for this requirement.

3. The Department revises the definition of “health care provider” under § 825.30(c)(1) to mean employees who are health care providers under 29 CFR 825.102 and 825.125, 3 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.

4. The Department revises § 826.100 to clarify that the information the employee must give the employer to support the need for his or her leave should be provided to the employer as soon as practicable.

5. The Department revises § 826.90 to correct an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to his or her employer.

The Department's April 1, 2020 rule stated that an employee is entitled to FFCRA leave only if the qualifying reason is a but-for cause of the employee's inability to work. 85 FR 19329. In other words, the qualifying reason must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason. This means an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform, even if the qualifying reason did not apply. Id. This work-availability requirement was explicit in the regulatory text as to three of the six qualifying reasons for leave. 4 As explained below, the Department's intent, despite not explicitly including the work-availability requirement in the regulatory text regarding the other three qualifying reasons, was to apply the requirement to all reasons.

The work-availability requirement and the but-for causation standard that undergirds it were part of the legal challenge to the rule. New York, 2020 WL 4462260 at *6-7. The FFCRA uses the words “because” and “due to” in identifying the reasons for which an employee may take FFCRA leave. See FFCRA sections 3102 and 5102(a). The District Court held that the FFCRA's use of “because” and “due to” in referring to the reasons an employee is unable to work or telework were ambiguous as to the causation standard imposed and further concluded that the work-availability requirement was invalid for two reasons. One, the Department's explicit application of the requirement to only three of the six reasons for taking leave was unreasoned and inconsistent with the statutory text; two, the Department did not sufficiently explain the reason for imposing this requirement at all. Id. at *7-9.

The Department has carefully considered the District Court's opinion and now provides a fuller explanation for its original reasoning regarding the work-availability requirement. With this revised rule, the Department explains why it continues to interpret the FFCRA to impose a but-for causation standard that in turn supports the work-availability requirement for all qualifying reasons for leave. 5 Further, the Department revises § 826.20 to explicitly include the work-availability requirement in all qualifying reasons for leave.

The FFCRA states that an employer shall provide its employee FFCRA leave to the extent that the employee is unable to work (or telework) due to a need for leave “because” of or “due to” a qualifying reason for leave under FFCRA sections 3102 and 5102(a). 6 The terms “because,” “due to,” and similar statutory phrases have been repeatedly interpreted by the Supreme Court to require “but-for” causation. 7 “[A]n act is not a `but-for' cause of an event if the event would have occurred even in the absence of the act[,]”  8 including where the event would have occurred due to another sufficient cause. 9 The District Court recognized that the “traditional meaning of `because' (and `due to') implies a but-for causal relationship,” but concluded that these terms' use in the FFCRA did not necessarily foreclose a different interpretation. New York, 2020 WL 4462260, at *7.

After considering the District Court's conclusion that the statute does not necessarily require the traditional result, the Department continues to believe that the traditional meaning of “because” and “due to” as requiring but-for causation is the best interpretation of the FFCRA leave provisions in this context. This standard is especially compelling in light of Supreme Court precedent applying the “ordinary meaning” of but-for causation where the underlying statute did not specify an alternative standard. Burrage v. United States, 571 U.S. 204, 216 (2014) (“Congress could have written [a statute] to impose a mandatory minimum when the underlying crime `contributes to' death or serious bodily injury, or adopted a modified causation test tailored to cases involving concurrent causes . . . . It chose instead to use language that imports but-for causality.”). Here too, the Department sees no textual basis or other persuasive reason to deviate from the standard meanings of these terms. 10 The Department's regulations thus interpret the FFCRA to require that an employee may take paid sick leave or expanded family and medical leave only to the extent that a qualifying reason for such leave is a but-for cause of his or her inability to work.

In the FFCRA context, if there is no work for an individual to perform due to circumstances other than a qualifying reason for leave—perhaps the employer closed the worksite (temporarily or permanently)—that qualifying reason could not be a but-for cause of the employee's inability to work. 11 Instead, the individual would have no work from which to take leave. The Department thus reaffirms that an employee may take paid sick leave or expanded family and medical leave only to the extent that any qualifying reason is a but-for cause of his or her inability to work. Because the Department agrees with the District Court that there is no basis, statutory or otherwise, to apply the work-availability requirement only to some of the qualifying reasons for FFCRA leave, and in keeping with the Department's original intent, the Department amends § 826.20(a)(3), (a)(4) to state explicitly, as § 826.20(a)(2), (6), and (9) do, that an employee is not eligible for paid leave unless the employer would otherwise have work for the employee to perform. The Department similarly adds § 826.20(a)(10) to make clear such requirement is likewise needed when an employee requests paid leave for a substantially similar condition as specified by the Secretary of Health and Human Services. 12

The Department's continued application of the work-availability requirement is further supported by the fact that the use of the term “leave” in the FFCRA is best understood to require that an employee is absent from work at a time when he or she would otherwise have been working. As to this point, the District Court concluded that the statute did not mandate such an interpretation. New York, 2020 WL 4462260, at *7-8. After reconsideration, the Department now reaffirms that even if “leave” could encompass time an employee would not have worked regardless of the relevant qualifying reason, the Department, based in significant part on its experience administering and enforcing other mandatory leave requirements, interprets the FFCRA as allowing employees to take paid leave only if they would have worked if not for the qualifying reason for leave. “Leave” is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave. This interpretation is consistent with the Department's long-standing interpretation of the term “leave” in the FMLA (which the EFMLEA amended). See 29 U.S.C. 2612(a). For instance, the Department's FMLA regulation at § 825.200(h) states that “if for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work,” the time that “the employer's activities have ceased do not count against the employee's FMLA leave entitlement.” Time that an employee is not required to work does not count against an employee's 12 workweek leave entitlement under the FMLA—including any EFMLEA leave—because it is not “leave.”  13 In addition, the Department's regulations implementing Executive Order 13706, which require certain federal contractors to provide employees with paid sick leave under certain circumstances, reflect this same understanding. The regulations explicitly define “paid sick leave” to mean “compensated absence from employment, ” 29 CFR 13.2 (emphasis added), and explain that “a contractor must permit an employee to use paid sick leave to be absent from work for that contractor during time the employee would have been performing work on or in connection with a covered contract or, [under other specified circumstances], during any work time because of [the enumerated qualifying reasons for leave],” 29 CFR 13.5(c)(1) (emphasis added).

The Department notes that removing the work-availability requirement would not serve one of the FFCRA's purposes: Discouraging employees who may be infected with COVID-19 from going to work. If there is no work to perform, there would be no need to discourage potentially infected employees from coming to work through the provision of paid FFCRA leave. Nor is there a need to protect a potentially infected employee who stays home from an employer's disciplinary actions if the employer has no work for the employee to perform.

Removing the work-availability requirement would also lead to perverse results. Typically, if an employer closes its business and furloughs its workers, none of those employees would receive paychecks during the closure or furlough period because there is no paid work to perform. But if an employee with a qualifying reason could take FFCRA leave even when there is no work, he or she could take FFCRA leave, potentially for many weeks, even when the employer closes its business and furloughs its workers. The employee on FFCRA leave would continue to be paid during this period, while his or her co-workers who do not have a qualifying reason for taking FFCRA leave would not. The Department does not believe Congress intended such an illogical result.

To be clear, the Department's interpretation does not permit an employer to avoid granting FFCRA leave by purporting to lack work for an employee. The work-availability requirement for FFCRA leave should be understood in the context of the applicable anti-retaliation provisions, which prohibit employers from discharging, disciplining, or discriminating against employees for taking such leave. See 29 U.S.C. 2615; FFCRA section 5104, as amended by CARES Act section 3611(8); 29 CFR 826.150(a), 826.151(a). Accordingly, employers may not make work unavailable in an effort to deny FFCRA leave because altering an employee's schedule in an adverse manner because that employee requests or takes FFCRA leave may be impermissible retaliation. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (“A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.”); see also Welch v. Columbia Mem'l Physician Hosp. Org., Inc., No. 1:13-CV-1079 GLS/CFH, 2015 WL 6855810, at *7 (N.D.N.Y. Nov. 6, 2015) (employee's “return[ ] from FMLA leave days before her supervisors changed her schedule . . . . suffic[ed] to support an inference of retaliation.”). There must be a legitimate, non-retaliatory reason why the employer does not have work for an employee to perform. This may occur, for example, where the employer has temporarily or permanently ceased operations at the worksite where the employee works or where a downturn in business forces the employer to furlough the employee for legitimate business reasons. See, e.g., Mullendore v. City of Belding, 872 F.3d 322, 329 (6th Cir. 2017) (no FMLA retaliation where employer “has demonstrated a legitimate [and non-pretextual] reason for terminating” the employee). Although an out-of-work employee would not be eligible for FFCRA leave in these scenarios, he or she may be eligible for unemployment insurance and other assistance programs.

New York State has argued that the work-availability requirement would “insert[] a capacious and unpredictable loophole basing eligibility on the hour-by-hour or day-by-day happenstance that work may not be available.” Pl's Mem. Of L., New York v. U.S. Dep't of Labor, 2020 WL 3411251 (S.D.N.Y. filed May 5, 2020). But as discussed above, the requirement is not a loophole but rather a longstanding principle in the Department's employee-leave regulations. It does not operate as an hour-by-hour assessment as to whether the employee would have a task to perform but rather questions whether the employee would have reported to work at all. Moreover, the availability or unavailability of work must be based on legitimate, non-discriminatory and non-retaliatory business reasons. 14

Furthermore, FFCRA leave is only one form of relief that has been made available during the COVID-19 crisis. Among other things, FFCRA paid leave ensures workers are not forced to choose between their paychecks and the public health measures needed to combat the virus; for example, an employee who may have been exposed to COVID-19 is encouraged not to go to work and thereby risk spreading the virus. Other provisions of the CARES Act assist workers in other circumstances. To encourage employers to maintain employees on the payroll, the Paycheck Protection Program, CARES Act sections 1101-1114, made available low-interest, and potentially forgivable, loans to employers who use those funds to continue to pay employees who might otherwise be laid off. To furnish relief to employees whose employers are not able to maintain them on the payroll, the Relief for Workers Affected by Coronavirus Act, CARES Act sections 2101-2116, expanded the Federal Government's support of unemployment insurance by enlarging the scope of unemployment coverage, the length of time for which individuals were eligible for unemployment payments, and the amount of those payments. And most directly, the CARES Act created a refundable tax credit, advances of which are being paid in 2020, to address the financial stress of the pandemic. The credit is worth up to $1,200 per eligible individual or up to $2,400 for individuals filing a joint return, plus up to $500 per qualifying child. CARES Act section 2201. All of this was in addition to industry-specific support measures and myriad changes to the Internal Revenue Code. See, e.g., CARES Act sections 2202-2308; 4001-4120. Against this backdrop, the Department interprets the FFCRA's paid sick leave and emergency family and medical leave provisions to grant relief to employers and employees where employees cannot work because of the enumerated reasons for leave, but not where employees cannot work for other reasons, in particular the unavailability of work from the employer.

The Department reaffirms the April 1 temporary rule's position that employer approval is needed to take intermittent FFCRA leave, and explains the basis for this requirement, which is consistent with longstanding FMLA principles governing intermittent leave. Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason, with the employee reporting to work intermittently during an otherwise continuous period of leave taken for a single qualifying reason. 15 Under the FMLA, intermittent leave is specifically defined as “leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.” 29 CFR 825.102. In the original FMLA statute, Congress expressly authorized employees taking FMLA leave for any qualifying reason to do so intermittently but only under certain circumstances. Depending on the reason for taking FMLA leave, the statute requires a medical need to take intermittent leave or an agreement between the employer and employee before an employee may take intermittent leave. See Public Law 103-3, sec. 102(b)(1), codified at 29 U.S.C. 2612(b)(1). In 2008, Congress amended the FMLA to create two new reasons for FMLA leave: Qualifying exigencies due to service in the Armed Forces and to care for injured service members. 29 U.S.C. 2612(a)(1)(E), (a)(3). Like the FMLA in 1993, the 2008 amendments explicitly authorized intermittent leave for these new qualifying FMLA leave reasons. 29 U.S.C. 2612(b)(1).

In contrast to the FMLA, in the FFCRA, Congress said nothing about intermittent leave, 16 but granted the Department broad regulatory authority to effectuate the purposes of the EPLSA and EFMLEA (which amends the FMLA) and to ensure consistency between the two laws. 17 As the District Court acknowledged, because “Congress did not address intermittent leave at all in the FFCRA[,] it is therefore precisely the sort of statutory gap . . . that DOL's broad regulatory authority empowers it to fill.” New York, 2020 WL 4462260, at *11.

The Department did not interpret the absence of language authorizing intermittent leave under the FFCRA to categorically permit  18 or prohibit  19 intermittent leave. Rather, § 826.50 permits an employee who is reporting to a worksite to take FFCRA leave on an intermittent basis only when taking leave to care for his or her child whose school, place of care, or child care provider is closed or unavailable due to COVID-19, and only with the employer's consent. 29 CFR 826.50(b). Because this is the only qualifying reason for EFMLEA leave, such leave may always be taken intermittently provided that the employer consents. As to EPSLA leave, this constitutes only one of the six potential qualifying reasons. The Department reasoned that the other reasons for taking EPSLA leave correlate to a higher risk of spreading the virus and therefore that permitting intermittent leave would hinder rather than further the FFCRA's purposes.

An employee who is teleworking (and not reporting to the worksite) may take intermittent leave for any of the FFCRA's qualifying reasons as long as the employer consents. 29 CFR 826.50(c). The District Court upheld the rule's prohibition on intermittent leave for employees who are reporting to the worksite when the reason for leave correlates to a higher risk of spreading the virus, i.e., all qualifying reasons except for caring for the employee's child due to school or childcare closure or unavailability. New York, 2020 WL 4462260, at *11-12 & n.9; 29 CFR 826.50(b)(2). However, the District Court held that the Department did not adequately explain the rationale for the requirement that intermittent leave, where available, can only be taken with the employer's consent. New York, 2020 WL 4462260, at *12. After reconsideration, the Department affirms its earlier interpretation—with additional explanation. 20

As the April 1 rule explained, the Department “imported and applied to the FFCRA certain concepts of intermittent leave from its FMLA regulations.” 85 FR 19336. 21 Under those regulations, “FMLA leave may be taken intermittently . . . under certain circumstances” specified in the statute and applied in the regulation. 29 CFR 825.202. 22 In other words, as Congress has previously specified, and as the Department's regulations require, FMLA leave must be taken in a single block of time unless specific conditions are met. These conditions are: (1) A medical need for intermittent leave taken due to the employee's or a family member's serious health condition, which the employer may require to be certified by a health care provider; (2) employer approval for intermittent leave taken to care for a healthy newborn or adopted child; or (3) a qualifying exigency related to service in the Armed Forces. Id.

The regulations concerning intermittent leave due to service in the Armed Forces are not relevant in the very different FFCRA context. See 29 CFR 825.202(d). The Department further believes certified medical need is not an appropriate condition for FFCRA intermittent leave. As the District Court explained, an employer may not require documentation of any sort as a precondition to taking FFCRA leave, New York, 2020 WL 4462260, at *12, so the Department does not believe certification could be required as a precondition for such leave taken intermittently. Moreover, certified medical need is inapplicable where an employee takes expanded family and medical leave or paid sick leave under § 826.20(a)(v) due to the closure or unavailability of his or her child's school, place of care, or child care provider because those qualifying reasons bear no relationship to any medical need.

The remaining qualifying reasons to take paid sick leave under § 826.20(a)(i)-(iv) and (vi) are medically related but do not lend themselves to the allowance of intermittent leave for medical reasons. A COVID-19-related quarantine or isolation order under § 826.20(a)(i) prevents certain employees from going to work because the issuing government authority has determined that allowing such employees to work would exacerbate COVID-19 contagion. Similarly, a health care provider may advise an employee to self-quarantine under § 826.20(a)(ii) because that employee is at particular risk if he or she is infected by the coronavirus or poses a risk of infecting others. In both cases, the government authority and health care provider may be concerned that an individual to whom the order or advice is directed has an elevated risk of having COVID-19. 23 If so, an employee who takes leave under § 826.20(a)(iv) to care for such an individual may have elevated risk of COVID-19 exposure. Finally, an employee who is experiencing COVID-19 symptoms under § 826.20(a)(iii), or other similar symptoms identified by the Secretary of HHS under § 826.20(a)(iii), would also have elevated risk of having COVID-19.

At bottom, the qualifying reasons to take paid sick leave under § 826.20(a)(i)-(iv) are medically related because they include situations where the employee may have an elevated risk of being infected with COVID-19, or is caring for someone who may have an elevated risk of being infected with COVID-19. Rather than justifying intermittent leave, these medical considerations militate against intermittent FFCRA leave where the employee may have an elevated risk of being infected with COVID-19 or is caring for someone who may have such elevated risk. Permitting such an employee to return to work intermittently when he or she is at an elevated risk of transmitting the virus would be incompatible with Congress' goal to slow the spread of COVID-19. See 85 FR 19336; New York, 2020 WL 4462260, at *12. The same is broadly true where an individual is at higher risk if infected: Permitting an individual who has been ordered or advised to self-isolate due to his or her vulnerability to COVID-19 to return to work intermittently would also undermine the FFCRA's public health objectives. Accordingly, the regulations do not allow employees who take paid sick leave under § 826.20(a)(i)-(iv) and (vi) to return to work intermittently at a worksite. 24 Employees who take paid sick leave for these reasons, however, may telework on an intermittent basis without posing the risk of spreading the contagion at the worksite or being infected themselves.

The Department believes the employer-approval condition for intermittent leave under its FMLA regulation is appropriate in the context of FFCRA intermittent leave for qualifying reasons that do not exacerbate risk of COVID-19 contagion. It is a longstanding principle of FMLA intermittent leave that such leave should, where foreseeable, avoid “unduly disrupting the employer's operations.” 29 CFR 825.302(f). It best meets the needs of businesses that this general principle is carried through to the COVID-19 context, by requiring employer approval for such leave. In the context of intermittent leave being required for medical reasons, the FMLA long has recognized certified medical needs for intermittent leave as paramount, unless the leave is for planned medical treatment, in which case the employee must make reasonable efforts to schedule the leave in a manner that does not unduly disrupt operations. 29 U.S.C. 2612(e)(2)(A); 29 CFR 825.302(e). However, when intermittent leave is not required for medical reasons, the FMLA balances the employee's need for leave with the employer's interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave. 29 CFR 825.120(b); .121(b). The Department's FFCRA regulations already provide that employees may telework only where the employer permits or allows. See § 826.10(a). Since employer permission is a precondition under the FFCRA for telework, the Department believes it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave. 25 On the other hand, the Department does not believe that an employee should be required to obtain certification of medical need in order to telework intermittently because it may be unduly burdensome in this context for an employee to obtain such certification. Medical certification would also be redundant because the employee must already obtain employer permission to telework in the first place. The Department has thus aligned the employer-agreement requirements to apply to both telework and intermittent leave from telework. The Department believes that its approach affords both employers and employees flexibility. In many circumstances, these agreed-upon telework and scheduling arrangements may reduce or even eliminate an employee's need for FFCRA leave by reorganizing work time to accommodate the employee's needs related to COVID-19.

Employer approval is also an appropriate condition for taking FFCRA leave intermittently to care for a child, whether the employee is reporting to the worksite or teleworking. This condition already applies where an employee takes FMLA leave to care for his or her healthy newborn or adopted child, which is similar to where an employee takes FFCRA leave to care for his or her child because the child's school, place of care, or child care provider is closed or unavailable.

The employer-approval condition would not apply to employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee. The employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The employee may take leave due to a school closure until that qualifying reason ends ( i.e., the school opened the next day), and then take leave again when a new qualifying reason arises ( i.e., school closes again the day after that). Under the FFCRA, intermittent leave is not needed because the school literally closes (as that term is used in the FFCRA and 29 CFR 826.20) and opens repeatedly. The same reasoning applies to longer and shorter alternating schedules, such as where the employee's child attends in-person classes for half of each school day or where the employee's child attends in-person classes every other week and the employee takes FFCRA leave to care for the child during the half-days or weeks in which the child does not attend classes in person. This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school's in-person instruction schedule. Under these circumstances, the employee's FFCRA leave is intermittent and would require his or her employer's agreement.

With those explanations and exceptions in mind, the Department reaffirms that employer approval is needed to take FFCRA leave intermittently in all situations in which intermittent FFCRA leave is permitted.

Sections 3105 and 5102(a) of the FFCRA, respectively, allow employers to exclude employees who are “health care provider[s]” or who are “emergency responder[s]” from eligibility for expanded family and medical leave and paid sick leave. The Department understands that the option to exclude health care providers and emergency responders serves to prevent disruptions to the health care system's capacity to respond to the COVID-19 public health emergency and other critical public health and safety needs that may result from health care providers and emergency responders being absent from work. The FFCRA adopts the FMLA definition of “health care provider,” FFCRA section 5110(4), which covers (i) licensed doctors of medicine or osteopathy and (ii) “any other person determined by the Secretary to be capable of providing health care services,” 29 U.S.C. 2611(6). The FFCRA, however, uses the term “health care provider” in two markedly different contexts. Section 5102(a)(2) of the FFCRA uses “health care provider” to refer to medical professionals who may advise an individual to self-isolate due concerns related to COVID-19 such that the individual may take paid sick leave to follow that advice. In the Department's April 1 temporary rule implementing the FFCRA's paid leave provisions, the Department used the definition of this term it adopted under the FMLA, 29 CFR 825.125, to define this group of health care providers. § 826.20(a)(3). In the second context, Sections 3105 and 5102(a) of the FFCRA allow employers to exclude employees who are “health care providers” or who are “emergency responders” from the FFCRA's entitlement to paid leave. The Department promulgated a different definition of “health care provider” to identify these employees, § 826.30(c)(1), which the District Court held was overly broad. See New York, 2020 WL 4462260, at *9-10.

The District Court explained that because the FFCRA adopted the FMLA's statutory definition of “health care provider” in 29 U.S.C. 2611(6), including the portion of that definition permitting the Secretary to determine that additional persons are “capable of providing health care services,” any definition adopted by the Department must require “at least a minimally role-specific determination” of which persons are “capable of providing healthcare services.” New York, 2020 WL 4462260, at *10. In other words, the definition cannot “hinge[ ] entirely on the identity of the employer,” but must depend on the “skills, role, duties, or capabilities” of the employee. Id. To define the term otherwise would sweep in certain employees of health care facilities “whose roles bear no nexus whatsoever to the provision of healthcare services.” Id. The District Court did not foreclose, however, an amended regulatory definition that is broader than the FMLA's regulatory definition, explaining that there is precedent for the proposition that an agency may define a term shared by two sections of a statute differently “as long as the different definitions individually are reasoned and do not exceed the agency's authority.” Id. at *10 n.8.

After careful consideration of the District Court's order, this rule adopts a revised definition of “health care provider,” to appear at § 826.30(c)(1), for purposes of the employer's optional exclusion of employees who are health care providers from FFCRA leave. First, revised § 826.30(c)(1)(i) defines a “health care provider” to include employees who fall within the definition of health care provider under 29 CFR 825.102 and 825.125. Specifically, revised § 826.30(c)(1)(i)(A) cites 29 CFR 825.102 and 825.125—to bring physicians and others who make medical diagnoses within this term. Second, revised § 826.30(c)(1)(i)(B), consistent with the District Court's order, identifies additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers. It expressly states that an employee is a health care provider if he or she is “capable of providing health care services.” The definition then further limits the universe of relevant “health care services” that the employee must be capable of providing to qualify as a “health care provider”— i.e., the duties or role of the employee. Specifically, a health care provider must be “employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.”

Neither the FMLA nor FFCRA defines “health care services,” leaving a statutory gap for the Department to fill. When used in the context of determining who may take leave despite a need to respond to a pandemic or to ensure continuity of critical operations within our health care system, the term “health care services” is best understood to encompass a broader range of services than, as in the FMLA context, primarily those medical professionals who are licensed to diagnose serious health conditions. To interpret this critical term, the Department is informed by how other parts of Federal law define this term. In one notable example, the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 (Pandemic Act) defines “health care service” in the context of a pandemic response to mean “any services provided by a health care professional, or by any individual working under the supervision of a health care professional, that relate to (A) the diagnosis, prevention, or treatment of any human disease or impairment; or (B) the assessment or care of the health of human beings.” 42 U.S.C. 234(d)(2). The services listed in subparagraphs (A) and (B) of this definition reflect Congress's view of health care services that are provided during a pandemic. In the Department's view, the Pandemic Act's description of the categories of services that qualify as “health care services” provides a useful baseline for interpretation of “health care services” as that term is used in connection with the FFCRA because both statutes focus on pandemic response. Accordingly, for purposes of who may be excluded by their employers from taking FFCRA leave, the revised regulation provides that an employee is “capable of providing health care services,” and thus may be a “health care provider” under 29 U.S.C. 2611(6)(B), if he or she is employed to provide diagnostic services, preventative services, or treatment services. The Department also includes a fourth category, services that are integrated with and necessary to the provision of patient care and that, if not provided, would adversely impact patient care, which is analogous to but narrower than the Pandemic Act's reference to services “related to . . . the assessment or care of the health of human beings.” See U.S.C. 234(d)(2)(B). These categories are codified in the revised § 826.30(c)(1)(i)(B).

The Pandemic Act and the FFCRA diverge in an important way, however. The provision of the Pandemic Act cited above limits the liability of “health care professionals,” defined to be limited to individuals “licensed, registered, or certified under Federal or State laws or regulations to provide health care services,” who provide services as members of the Medical Reserve Corps or in the Emergency System for Advance Registration of Volunteer Health Professionals. 42 U.S.C. 234(d)(1). The FFCRA's optional exclusion from its leave entitlements has a different purpose: Ensuring that the health care system retains the capacity to respond to COVID-19 and other critical health care needs. See 85 FR 19335. Congress' optional exclusion of emergency responders in addition to health care providers demonstrates that Congress was intending to provide a safety valve to ensure that critical health and safety services would not be understaffed during the pandemic. Given this context, the Department concluded Congress did not intend to limit the optional health care provider exclusion to only physicians and others who make medical diagnoses, i.e. the persons that qualify as a health care provider in the different contexts posed by the FMLA and EPSLA. The Department thus interprets “health care services” for the purpose of this definition to encompass relevant services even if not performed by individuals with a license, registration, or certification. For the same reason, the Department has determined that an employee is “capable” of providing health care services if he or she is employed to provide those services. That is, the fact that the employee is paid to perform the services in question is, in this context, conclusive of the employee's capability. While a license, registration, or certification may be a prerequisite for the provision of some health care services, the Department's interpretation of “health care services” encompasses some services for which license, registration, or certification is not required at all or not universally required.

In any event, Congress defined health care services, listed in 42 U.S.C. 234(d)(2)(A) and (B), in the context of combatting a pandemic. The Department also recognizes that the definition must have limits, as the District Court held. The Department's revised “health care provider” definition is thus clear that employees it covers must themselves must be capable of providing, and employed to provide diagnostic, preventative, or treatment services or services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care. It is not enough that an employee works for an entity that provides health care services. Moreover, the Department has designed the fourth category to encompass only those “services that are integrated with and necessary to the provision of patient care” and that, “if not provided, would adversely impact patient care.” Health care services that do not fall into any of these categories are outside the Department's definition. Finally, the Department adds descriptions to emphasize that the definition of “health care provider” is far from open-ended by identifying specific types of employees who are and are not included within the definition and by describing the types of roles and duties that would make an employee a “health care provider.”

Revised § 826.30(c)(1)(ii) lists the three types of employees who may qualify as “health care providers” under § 826.30(c)(1)(i)(B). First, § 826.30(c)(1)(ii)(A) explains that included within the definition are nurses, nurse assistants, medical technicians, and any other persons who directly provide the services described in § 826.30(c)(1)(i)(B), i.e., diagnostic, preventive, treatment services, or other services that are integrated with and necessary to the provision of patient care are health care providers.

Second, § 826.30(c)(1)(ii)(B) explains that, included within the definition, are employees providing services described in paragraph (c)(1)(i)(B) under the supervision, order, or direction of, or providing direct assistance to, a person described in paragraphs (c)(1)(i)(A) (that is, employees who are health care providers under the usual FMLA definition) or (c)(1)(ii)(A) (that is, nurses or nurse assistants and other persons who directly provide services described in paragraph (c)(1)(i)(B)).

Finally, under § 826.30(c)(1)(ii)(C), “health care providers” include employees who may not directly interact with patients and/or who might not report to another health care provider or directly assist another health care provider, but nonetheless provide services that are integrated with and necessary components to the provision of patient care. Health care services reasonably may include services that are not provided immediately, physically to a patient; the term health care services may reasonably be understood to be broader than the term health care. For example, a laboratory technician who processes test results would be providing diagnostic health care services because, although the technician does not work directly with the patient, his or her services are nonetheless an integrated and necessary part of diagnosing the patient and thereby determining the proper course of treatment. 26 Processing that test is integrated into the diagnostic process, like performing an x-ray is integrated into diagnosing a broken bone.

Individuals who provide services that affect, but are not integrated into, the provision of patient care are not covered by the definition, because employees who do not provide health care services as defined in paragraph (c)(1)(i)(B) are not health care providers. Accordingly, revised § 826.30(c)(1)(iii) provides examples of employees who are not health care providers. The Department identifies information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. While the services provided by these employees may be related to patient care— e.g., an IT professional may enable a hospital to maintain accurate patient records—they are too attenuated to be integrated and necessary components of patient care. This list is illustrative, not exhaustive.

Recognizing that a health care provider may provide services at a variety of locations, and to help the regulated community identify the sorts of employees that may perform these services, § 826.30(c)(2)(iv) provides a non-exhaustive list of facilities where health care providers may work, including temporary health care facilities that may be established in response to the COVID-19 pandemic. 27 This list contains almost the same set of health care facilities listed in the original § 826.30(c)(1)(i) and is drawn from 42 U.S.C. 300jj(3), which also contains a non-exhaustive list of entities that qualify as “health care providers.”  28 Consistent with the District Court's decision, however, the revised regulatory text explicitly provides that not all employees who work at such facilities are necessarily health care providers within the definition. For example, the categories of employees listed in § 826.30(c)(1)(iii) would not qualify as “health care providers” even if they worked at a listed health care facility. On the other hand, employees who do not work at any of the listed health care facilities may be health care providers under FFCRA sections 3105 and 5102(a). Thus, the list is merely meant to be a helpful guidepost, but itself says nothing dispositive as to whether an employee is a health care provider.

Under this revised definition, § 826.30(c)(1)(v) provides specific examples of services that may be considered “diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care” under § 826.30(c)(1)(i). These examples are non-exhaustive and are meant to be illustrative.

Diagnostic services include, for example, taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results. These services are integrated and necessary because without their provision, patient diagnosis would be undermined and individuals would not get the needed care. To illustrate, a technician or nurse who physically performs an x-ray is providing a diagnostic service and therefore is a health care provider.

Preventative services include, for example, screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems. As with diagnostic services, preventative services are integrated and necessary because they are an essential component of health care. For example, a nurse providing counseling on diabetes prevention or on managing stress would be providing preventative services and therefore would be a health care provider.

Treatment services are the third category of services which make up health care services. Treatment services include, for example, performing surgery or other invasive or physical interventions, administering or providing prescribed medication, and providing or assisting in breathing treatments.

The last category of health care services are those services that are integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care. This final category is intended to cover other integrated and necessary services that, if not provided, would adversely affect the patient's care. Such services include, for example, bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples. These tasks must be integrated and necessary to the provision of patient care, which significantly limits this category.

For example, bathing, dressing, or hand feeding a patient who cannot do that herself is integrated into to the patient's care. In another example, an individual whose role is to transport tissue or blood samples from a patient to the laboratory for analysis for the purpose of facilitating a diagnosis would be providing health care services because timely and secure transportation of the samples is integrated with and necessary to provide care to that patient. 29 These tasks also must be something that, if not performed, would adversely affect the patient's care, and they also must be integrated into that patient's care. Thus, tasks that may be merely indirectly related to patient care and are not necessary to providing care are not health care services. Further, the Department notes that some of the exemplar services listed in § 826.30(c)(1)(v)(D) may fit into more than one category.

Finally, § 826.30(c)(1)(vi) explains that the above definition of “health care provider” applies only for the purpose of determining whether an employer may exclude an employee from eligibility to take FFCRA leave. This definition does not otherwise apply for the purposes of the FMLA. Nor does it identify health care providers whose advice to self-quarantine may constitute a qualified reason for paid sick leave under FFCRA section 5102(a)(2).

Revised § 826.30(c)(1)'s definition of “health care provider” for purposes of FFCRA sections 3105 and 5102(a) remains broader than the definition of “health care provider” under § 825.125, which defines the term for the pre-existing parts of FMLA and for purposes of FFCRA section 5102(a)(2). This is because these two definitions serve different purposes. The same term is usually presumed to have the same meaning throughout a single statute. Brown v. Gardner, 513 U.S. 115, 118 (1994). But “this presumption . . . yields readily to indications that the same phrase used in different parts of the same statute means different things.” Barber v. Thomas, 560 U.S. 474, 484 (2010) (collecting cases). The Department purposefully limited § 825.125's definition of “health care provider” to licensed medical professionals because the pre-existing FMLA definition used that term in the context of who could certify the diagnosis of serious health conditions for purposes of FMLA leave. 30 As a result, the definition in 29 CFR 825.125 is narrower than the ordinary understanding of “health care provider,” since many “providers” of health care services—such as nurses, physical therapists, medical technicians, or pharmacists—do not diagnose serious health conditions. See 29 CFR 825.115(a)(1) (defining continuing treatment for incapacity to require “[t]reatment two or more times, within 30 days of the first day of incapacity, by a health care provider, a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider”) (emphases added); id. 825.115(c)(1) (defining continuing treatment for a chronic condition as including “periodic visits for treatment by a health care provider or a nurse under the direct supervision of a health care provider” (emphasis added)).

In contrast, and as explained above, the term “health care provider” serves an entirely different purpose in FFCRA sections 3105 and 5102(a). The Department believes these sections are best understood to have granted employers the option to exclude from paid leave eligibility health care providers whose absence from work would be particularly disruptive because those employees' services are important to combating the COVID-19 public health emergency and are essential to the continuity of operations of our health care system in general. 31 The definition of “health care provider” as limited only to diagnosing medical professionals under 29 CFR 825.125 is, in the Department's view, incompatible with this understanding of these sections. For example, nurses provide crucial services, often directly related to the COVID-19 public health emergency or to the continued operations of our health care system in general, but as noted, most nurses are not “health care providers” under § 825.125. 32 Nor are laboratory technicians who process COVID-19 or other crucial medical diagnostic tests, or other employees providing the critical services described above. But these workers are vital parts of the health system capacity that the Department believes Congress sought to preserve with the exclusions in FFCRA sections 3105 and 5102(a). A purposefully narrow definition of “health care providers” such as that in 29 CFR 825.125 would make excludable only a small class of employees that the Department believes would lack a connection to the identified policy objective. In accord with that understanding, revised § 826.30(c)(1) adopts a broader, but still circumscribed, definition of “health care provider” than 29 CFR 825.125.

The FFCRA permits employers to require employees to follow reasonable notice procedures to continue to receive paid sick leave after the first workday (or portion thereof) of leave. FFCRA section 5110(5)(E). Section 3102(b) of the FFCRA amends the FMLA to require employees taking expanded family and medical leave to provide their employers with notice of leave as practicable, when the necessity for such leave is foreseeable.

Section 826.100 lists documentation that an employee is required to provide the employer regarding the employee's need to take FFCRA leave, and states that such documentation must be provided “prior to” taking paid sick leave or expanded family and medical leave. The District Court held that the requirement that documentation be given “prior to” taking leave “is inconsistent with the statute's unambiguous notice provision,” which allows an employer to require notice of an employee's reason for taking leave only “after the first workday (or portion thereof)” for paid sick leave, or “as is practicable” for expanded family and medical leave taken for school, place of care, or child care provider closure or unavailability. New York, 2020 WL 4462260, at *12.

In keeping with the District Court's conclusion, the Department amends § 826.100 to clarify that the documentation required under § 826.100 need not be given “prior to” taking paid sick leave or expanded family and medical leave, but rather may be given as soon as practicable, which in most cases will be when the employee provides notice under § 826.90. The Department is also revising § 826.90(b) to correct an inconsistency regarding the timing of notice for employees who take expanded family and medical leave.

Sections 826.90 and 826.100 complement one another. Section 826.90 sets forth circumstances in which an employee who takes paid sick leave or expanded family and medical leave must give notice to his or her employer. Section 826.100 sets forth information sufficient for the employer to determine whether the requested leave is covered by the FFCRA. Section 826.100(f) also allows the employer to request an employee furnish additional material needed to support a request for tax credits under Division G of the FFCRA.

Section 826.90(b) governs the timing and delivery of notice. Previous § 826.90(b) stated, “Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded Family and Medical Leave.” This statement is correct with respect to paid sick leave. FFCRA section 5110(5)(E). However, section 110(c) of the FMLA, as amended by FFCRA section 3102, explicitly states that “where the necessity for [expanded family and medical leave] is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.” Thus, for expanded family and medical leave, advance notice is not prohibited; it is in fact typically required if the need for leave is foreseeable. Revised § 826.90(b) corrects this error by stating that advanced notice of expanded family and medical leave is required as soon as practicable; if the need for leave is foreseeable, that will generally mean providing notice before taking leave. For example, if an employee learns on Monday morning before work that his or her child's school will close on Tuesday due to COVID-19 related reasons, the employee must notify his or her employer as soon as practicable (likely on Monday at work). If the need for expanded family and medical leave was not foreseeable—for instance, if that employee learns of the school's closure on Tuesday after reporting for work—the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

Section 826.100(a) previously stated that an employee is required to give the employer certain documentation “prior to taking Paid Sick Leave under the EPSLA or Expanded Family and Medical Leave under the EFMLEA.” As noted above, the District Court held that the requirement that documentation be provided prior to taking leave “is inconsistent with the statute's unambiguous notice provision,” which allows an employer to require notice of an employee's reason for taking leave only “after the first workday (or portion thereof)” for paid sick leave, or “as is practicable” for expanded family and medical leave taken for school, place of care, or child care provider closure or unavailability. New York, 2020 WL 4462260, at *12. Accordingly, the Department is revising § 826.100(a) to require the employee to furnish the listed information as soon as practicable, which in most cases will be when notice is provided under § 826.90. That is to say, an employer may require an employee to furnish as soon as practicable: (1) The employee's name; (2) the dates for which leave is requested; (3) the qualifying reason for leave; and (4) an oral or written statement that the employee is unable to work. The employer may also require the employee to furnish the information set forth in § 826.100(b)-(f) at the same time.

The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR part 1320, require the Department to consider the agency's need for its information collections and their practical utility, the impact of paperwork and other information collection burdens imposed on the public, and how to minimize those burdens. The Department has determined that this temporary rule does not add any new information collection requirements. The information collection associated with this temporary rule was previously approved by the Office of Management and Budget (OMB) under OMB control number 1235-0031.

This rule is issued without prior notice and opportunity to comment and with an immediate effective date pursuant to the Administrative Procedure Act (APA). 5 U.S.C. 553(b) and (d).

The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The FFCRA authorizes the Department to issue regulations under the EPSLA and the EFMLEA pursuant to the good cause exception of the APA. FFCRA sections 3102(b) (adding FMLA section 110(a)(3)), 5111.

As it did in the initial April 1, 2020 temporary rule, the Department is bypassing advance notice and comment because of the exigency created by the COVID-19 pandemic, the time limited nature of the FFCRA leave entitlement which expires December 31, 2020, the uncertainty created by the August 3, 2020 district court decision finding certain portions of the April 1 rule invalid, and the regulated community's corresponding immediate need for revised provisions and explanations from the Department. A decision to undertake notice and comment rulemaking would likely delay final action on this matter by weeks or months, which would be counter to one of the FFCRA's main purposes in establishing paid leave: enabling employees to leave the workplace immediately to help prevent the spread of COVID-19 and to ensure eligible employees are not forced to choose between their paychecks and the public health measures needed to combat the virus. In sum, the Department determines that issuing this temporary rule as expeditiously as possible is in the public interest and critical to the Federal Government's relief and containment efforts regarding COVID-19.

The APA also authorizes agencies to make a rule effective immediately, upon a showing of good cause, instead of imposing a 30-day delay. 5 U.S.C. 553(d)(3). The FFCRA authorizes the Department to issue regulations that are effective immediately under the EPSLA and the EFMLEA pursuant to the good cause exception of the APA. FFCRA sections 3102(b) (adding FMLA section 110(a)(3)), 5111; CARES Act section 3611(1)-(2). For the reasons stated above, the Department has concluded it has good cause to make this temporary rule effective immediately and until the underlying statute sunsets on December 31, 2020.

Under E.O. 12866, OMB's Office of Information and Regulatory Affairs (OIRA) determines whether a regulatory action is significant and therefore, subject to the requirements of the E.O. and OMB review. Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule that (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. As described below, this temporary rule is not economically significant. The Department has prepared a Regulatory Impact Analysis (RIA) in connection with this rule, as required under section 6(a)(3) of Executive Order 12866, and OMB has reviewed the rule. OIRA has designated this rule as not a “major rule,” as defined by 5 U.S.C. 804(2).

Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

The temporary final rule promulgated by the Department in April 2020 implemented the EPSLA and the EFMLEA, as modified by the CARES Act. The EPSLA requires that certain employers provide two workweeks (up to 80 hours) of paid sick leave to eligible employees who need to take leave from work for specified reasons related to COVID-19. The EFMLEA requires that certain employers provide up to 12 weeks of expanded family and medical leave to eligible employees who need to take leave from work because the employee is caring for his or her son or daughter whose school or place of care is closed or child care provider is unavailable due to COVID-19 related reasons. Payments from employers to employees for such paid leave, as well as allocable costs related to the maintenance of health benefits during the period of the required leave, is to be reimbursed by the Department of the Treasury via tax credits, up to statutory limits, as provided under the FFCRA.

The Department is issuing this revised, new temporary rule, effective immediately, to reaffirm, revise, and clarify its regulations. The Department reaffirms that paid sick leave and expanded family and medical leave may be taken only if the employee has work from which to take leave, and that employees must receive employer approval to take paid sick leave or expanded family and medical leave intermittently. The Department narrows the definition of “health care provider” to employees who are health care providers under 29 CFR. 825.125 and employees capable of providing health care services, meaning those who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care. In this rule, the Department also clarifies that the information the employee gives the employer to support the need for leave should be given as soon as practicable, and corrects an inconsistency regarding when an employee may be required to give notice of expanded family and medical leave to their employer.

This rule revises and clarifies the temporary rule implementing the paid sick leave and expanded family and medical leave provisions of the FFCRA. The Department estimates that these revisions will result in additional rule familiarization costs to employers.

The Department noted that according to the 2017 Statistics of U.S. Businesses (SUSB), there are 5,976,761 private firms in the U.S. with fewer than 500 employees. 33 The Department estimates that all 5,976,761 employers with fewer than 500 employees will need to review the rule to determine how and if their responsibilities have changed from the initial temporary rule. The Department estimates that these employers will likely spend fifteen minutes on average reviewing the new rule, and that this will be a one-time rule familiarization cost.

The Department's analysis assumes that the rule would be reviewed by Compensation, Benefits, and Job Analysis Specialists (SOC 13-1141) or employees of similar status and comparable pay. The median hourly wage for these workers is $31.04 per hour. 34 In addition, the Department also assumes that benefits are paid at a rate of 46 percent  35 and overhead costs are paid at a rate of 17 percent of the base wage, resulting in a fully-loaded hourly wage of $50.60. 36 The Department estimates that the total rule familiarization cost to employers with fewer than 500 employees, who spend 0.25 hour reviewing the rule, will be $75,606,027 (5,976,761 firms × 0.25 hour × $50.60) in the first year. This results in a ten-year annualized cost of $10.1 million at 7 percent and $8.6 million at 3 percent.

In the initial rule, the Department estimated the costs to employers of both documentation and of posting a notice, and qualitatively discussed managerial and operating costs and costs to the Department. The Department does not expect these revisions and clarifications to result in additional costs in any of these categories.

In the initial temporary rule, the Department estimated that the transfers associated with this rule are the paid sick leave and expanded family and medical leave that employees will receive as a result of the FFCRA. The paid leave will initially be provided by employers, who will then be reimbursed by the Treasury Department through tax credits, up to statutory limits, which is then ultimately paid for by taxpayers. In the economic analysis of the initial temporary rule, the Department noted that it lacked data to determine which employees will need leave, and how many days of leave will ultimately be used. Because the share of employees who will use leave is likely to be only a partial share of those who are eligible, the Department was therefore unable to quantify the transfer of paid leave.

Certain health care providers and emergency responders may be excluded from this group of impacted employees. This new rule limits the definition of health care provider to employees who are health care providers under 29 CFR 825.125 and other employees capable of providing health care services, meaning those who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care. As discussed in the initial temporary rule, according to the SUSB data mentioned above, employers with fewer than 500 employees in the health care and social assistance industry employ 9.0 million workers. 37 The Department estimated that this is likely to be the upper bound of potential excluded health care providers, because some of these employees' employers could decide not to exclude them from eligibility to use paid sick leave or expanded family and medical leave. In this new rule, the Department is narrowing the definition of health care provider, which means that fewer employees could potentially be excluded from receiving paid sick leave and expanded family and medical leave. If more employees are able to use this leave, transfers to employees will be higher. Because the Department lacks data on the number of workers who were potentially excluded under the prior definition, and how that number will change under the new definition, the Department is unable to quantify the change in transfers associated with this new rule. However, the Department does not expect that this new temporary rule will result in a transfer at or more than $100 million dollars annually.

This new temporary rule will increase clarity for both employers and employees, which could lead to an increase in the use of paid sick leave and expanded family and medical leave. As discussed in the initial rule, the benefits of the paid sick leave and expanded family and medical leave provisions of the FFCRA are vast, and although unable to be quantified, are expected to greatly outweigh any costs of these provisions. With the availability of paid leave, sick or potentially exposed employees will be encouraged to stay home, thereby helping to curb the spread of the virus at the workplace. If employees still receive pay while on leave, they will benefit from being able to cover necessary expenses, and to continue to spend money to help support the economy. This will have spillover effects not only on the individuals who receive pay while on leave, but also to their communities and the national economy as a whole, which is facing unique challenges due to the COVID-19 global pandemic.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121 (March 29, 1996), requires federal agencies engaged in rulemaking to consider the impact of their proposals on small entities, consider alternatives to minimize that impact, and solicit public comment on their analyses. The RFA requires the assessment of the impact of a regulation on a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603 and 604.

As discussed above, the Department calculated rule familiarization costs for all 5,976,761 employers with and fewer than 500 employees. For the 5,755,307 employers with fewer than 50 employees, their one-time rule familiarization cost would be $12.65. 38 The Department calculated this cost by multiplying the 15 minutes of rule familiarization by the fully-loaded wage of a Compensation, Benefits, and Job Analysis Specialist (0.25 hour × $50.60). These estimated costs will be minimal for small business entities, and will be well below one percent of their gross annual revenues, which is typically at least $100,000 per year for the smallest businesses. Based on this determination, the Department certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to prepare a written statement for rules that include any federal mandate that may result in increased expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $165 million ($100 million in 1995 dollars adjusted for inflation using the CPI-U) or more in at least one year. This statement must: (1) Identify the authorizing legislation; (2) present the estimated costs and benefits of the rule and, to the extent that such estimates are feasible and relevant, its estimated effects on the national economy; (3) summarize and evaluate state, local, and tribal government input; and (4) identify reasonable alternatives and select, or explain the non-selection, of the least costly, most cost-effective, or least burdensome alternative. Based on the cost analysis in this temporary rule, the Department determined that the rule will not result in Year 1 total costs greater than $165 million.

This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order No. 13132, 64 FR 43255 (Aug. 4, 1999), this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule would 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.

For the reasons set out in the preamble, the Department of Labor amends title 29 of the Code of Federal Regulations part 826 as follows:

The purpose of this rule is to alter the operating schedule that governs the US 70 (Alfred C. Cunningham) Bridge across the Trent River, mile 0.0, in New Bern, North Carolina. This modification will allow the drawbridge to be maintained in the closed position during peak traffic hours and provide daily scheduled openings to meet the reasonable needs of navigation. On May 13, 2020, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Trent River, New Bern, NC” in the Federal Register (85 FR 28546). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action. During the comment period that ended June 12, 2020, we received one comment and that comment is addressed in Section IV of this Final Rule.

The Coast Guard is issuing this rule under authority 33 U.S.C. 499. The US 70 (Alfred C. Cunningham) Bridge across the Trent River, mile 0.0, in New Bern, North Carolina, has a vertical clearance of 14 feet above mean high water in the closed position and unlimited vertical clearance above mean high water in the open position. The current operation schedule for the drawbridge is published in 33 CFR 117.843(a)

Trent River is used predominately by recreational vessels, sailing vessels, and pleasure craft. The 16-month average of bridge openings, average number of vessels, and maximum number of bridge openings by month, as drawn from the data contained in the bridge tender logs provided by the North Carolina Department of Transportation, is presented below.

In September 2015, the Rehabilitation Services Administration (RSA) awarded a 60-month grant to the National Disability Rights Network (NDRN) under the Rehabilitation Short-Term Training Program, authorized under section 302 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act) (29 U.S.C. 772). Under the grant, NDRN provides training and technical assistance to increase the capacity of CAP professionals to fulfill their responsibilities under section 112 of the Rehabilitation Act to inform, advise, and advocate for individuals with disabilities and facilitate their access to services and programs available under the Rehabilitation Act, as amended by the Workforce Innovation and Opportunity Act (WIOA) (29 U.S.C. 3101 et seq. ). The performance period for that grant ends on September 30, 2020.

On April 27, 2020, the Department published in the Federal Register (85 FR 23270) a document proposing an extension of the Rehabilitation Short-Term Training-CAP performance period for an additional budget period, not to exceed September 30, 2021; a waiver of the requirements in 34 CFR 75.250, which prohibit project periods exceeding five years; and a waiver of the requirements in 34 CFR 75.261(a) and (c)(2), which allow the extension of a project period only if the extension does not involve the obligation of additional Federal funds.

We are extending the Rehabilitation Short-Term Training-CAP for an additional year to assess and enhance the Department's CAP training and technical assistance approaches in light of (a) the expanded quality employment opportunities for individuals with disabilities promoted by WIOA; (b) promising employment initiatives advanced by RSA's Vocational Rehabilitation Technical Assistance Centers, consistent with WIOA; and (c) new training delivery platforms and methodologies that could be applied to this CAP training program, including the training that will be developed under the Innovative Rehabilitation Training program, CFDA number 84.263D. In short, the waiver and extension will allow the current Rehabilitation Short-Term Training-CAP grantee to continue providing critical training and technical assistance to CAP personnel, while the Innovative Rehabilitation Training program grantee designs and scales up a new, innovative training program that, consistent with WIOA, maximizes the capacity of CAP personnel to inform, advise, and advocate for individuals with disabilities and facilitate their access to expanded quality employment opportunities in their States.

Public Comment: In response to our invitation in the notification of proposed waiver and extension of the project periods, five parties submitted responsive comments. An analysis of the comments follows.

Comment: All commenters expressed support for the Rehabilitation Short-Term Training-CAP extension, including support for the Department's stated reason for doing so. None of the commenters recommended changes or provided substantive comments regarding the proposed extension and waiver itself.

Discussion: We appreciate commenters' support for this action, which we believe will allow the Department to more effectively support CAP personnel.

Changes: None.

Final Waiver and Extension:

The Department is extending the Rehabilitation Short-Term Training-CAP for an additional budget period, not to exceed September 30, 2021. The Department has concluded that it would not be in the public interest to end the Rehabilitation Short-Term Training-CAP grant while the new, enhanced CAP training program under the Innovative Rehabilitation Training priority related to CAP (CFDA number 84.263D) is being designed and ramped up during its first year. Doing so would reduce the Department's ability to provide ongoing training and technical assistance that CAP professionals need to fulfill their responsibilities under the Rehabilitation Act in the coming fiscal year (FY).

For this reason, the Department waives the requirements in 34 CFR 75.250, which prohibit project periods exceeding five years, and the requirements in 34 CFR 75.261(a) and (c)(2), which allow the extension of a project period only if the extension does not involve the obligation of additional Federal funds. The waiver would allow the Department to issue a one-time FY 2020 continuation award to the Rehabilitation Short-Term Training-CAP, as follows.

Any activities carried out during the year of this continuation award must be consistent with the scope, goals, and objectives of the grantee's application as approved in the FY 2015 competition. The requirements for continuation awards are set forth in 34 CFR 75.253.

Waiver of Delayed Effective Date:

The Administrative Procedure Act requires that a substantive rule must be published at least 30 days before its effective date, except as otherwise provided for good cause (5 U.S.C. 553(d)(3)). A delayed effective date would be contrary to public interest by creating a gap in provision of training and technical assistance that CAP professionals need to effectively fulfill their responsibilities under the Rehabilitation Act. Therefore, the Secretary waives the delayed effective date provision for good cause.

Regulatory Flexibility Act Certification:

The Department certifies that the waiver and extension of the project period will not have a significant economic impact on a substantial number of small entities. The only entity that will be affected by the waiver and extension of the project period is the current Rehabilitation Short-Term Training-CAP grantee, because it would receive funding for an additional project period. Additionally, the extension of an existing budget period imposes minimal compliance costs, and the activities required to support the additional year of funding will not impose additional regulatory burdens or require unnecessary Federal supervision.

Paperwork Reduction Act of 1995:

This final waiver and extension of the project period does not contain any information collection requirements.

Intergovernmental Review:

This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT .

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Portable Document Format (PDF). To view in PDF, you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Through a letter dated October 18, 2019, 1 GA EPD submitted a SIP revision for EPA's approval. The revision makes clarifying and ministerial changes to permitting regulations at Rule 391-3-1-.03(8), Permit Requirements. This submittal changes the status of five counties under paragraph (e), which specifies counties that are contributing to the ambient air levels of the current nonattainment area for the 2015 8-hour ozone National Ambient Air Quality Standard (NAAQS)  2 and makes other minor typographical edits to other subparagraphs for consistent formatting.

In a notice of proposed rulemaking (NPRM) published on May 22, 2020 (85 FR 31116), EPA proposed to approve revisions to Georgia Rule 391-3-1-.03(8), to list Barrow, Carroll, Hall, Spalding, and Walton Counties among those determined by the GA EPD Director to contribute to the ambient air level of ozone in a revised list of metropolitan Atlanta counties. EPA does not believe that the corresponding change to subparagraph (e)1. proposed in the NPRM will substantively impact implementation of Georgia's nonattainment new source review program. EPA provided further analysis of these changes, as well as the Agency's rationale for approving the changes, in its May 22, 2020, NPRM. Comments on the May 22, 2020, NPRM were due on or before June 22, 2020. EPA received no comments on the proposed action. EPA is now taking final action to approve the above-referenced revision.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Georgia Rule 391-3-1-.03(8), titled “Permit Requirements,” effective September 26, 2019, which incorporates minor revisions to the State's permitting requirements. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation. 3

EPA is approving the Georgia SIP revision to Rule 391-3-1-.03(8) titled “Permit Requirements,” submitted on October 18, 2019. This revision updates the status of five counties that are designated as attainment for the 2015 8-hour ozone NAAQS, but which the Director has determined to impact ambient ozone concentrations in the metropolitan Atlanta area. These counties therefore must comply with certain additional permitting requirements under Rule 391-3-1-.03(8), subparagraph (8)(c)15. In addition, the October 18, 2019, submittal makes typographical edits to Rule 391-3-1.03(8). EPA has concluded that the SIP revision is consistent with the CAA and applicable regulations.

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document “we,” “us,” and “our” means the EPA.

The EPA is taking final action to approve all SIP revisions submitted by the State of Colorado on May 8, 2019. The SIP revisions that we are acting on contain amendments to 5 CCR 1001-5, Regulation Number 3 (Stationary Source Permitting and Air Pollution Emission Notice Requirements). In particular, these amendments would revise Part A, VI.C. (Annual Emissions Fees) and VI.D. (Fee Schedule). The State adopted these revisions on October 18, 2018, and they became state effective on November 30, 2018. We are taking final action to approve of all revisions submitted on May 8, 2019.

The EPA published a proposed rulemaking on June 5, 2020 (85 FR 34559), which contains a detailed summary of the SIP revisions in question and an explanation of the bases for our proposed approval. We invited comment on all aspects of our proposal, and provided a 30-day comment period, which ended on July 6, 2020.

We received no comments during the public comment period.

As outlined in our proposed rulemaking, EPA is taking final action to approve the addition of new and revised rules to Regulation Number 3, Part A, Section VI.C: VI.C.2; Section VI.D: VI.D.1, VI.D.2, and VI.D.3 as submitted on May 8, 2019.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the State of Colorado's revisions to its SIP as described in section III. of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document “we,” “us,” and “our” refer to the EPA.

The EPA is approving revisions to 10 Code of State Regulation (CSR) 10-6.120, Restriction of Emissions of Lead From Specific Lead Smelter-Refinery Installations, in the Missouri SIP. The EPA received the Missouri Department of Natural Resources' (MoDNR) SIP revision submission on February 15, 2019. The revisions are described in detail in the technical support document (TSD) included in the docket for this action.

The revisions to 10 CSR 10-6.120 eliminate restrictions for a facility that is no longer operational as a primary lead smelter, update the reference to the National Emissions Standards for Hazardous Air Pollutants (NESHAP), subpart X, update the incorporation by reference information, and make editorial changes to the rule for clarity.

Based on a detailed analysis in its TSD of the revisions to the state rule listed above EPA is approving the revisions to this rule because it promotes clarity by removing emission limits no longer needed for the former Herculaneum primary lead smelter, updates references to the NESHAP, subpart X, and test methods. These revisions will not have a negative impact on air quality.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State placed this rule revision on public notice from June 29 through October 4, 2008. The state received three comments from two sources during the comment period: EPA provided two comments and Doe Run Resource Recycling Facility provided one comment on the rule revisions. MoDNR responded to all three comments received. The revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The public comment period on the EPA's proposed rule opened June 1, 2020, the date of its publication in the Federal Register and closed on July 1, 2020. During this period, the EPA received one adverse comment.

Comment: The Commenter expresses opposition to EPA approving Missouri's requested revisions. The commenter expresses concern that the revisions could potentially eliminate or delay regulatory protections if a new facility comes in or the former Herculaneum primary lead smelter refinery reopens. In addition, the commenter states that “the removal of a numeric emission limit for Doe Run now makes the rule unenforceable” and refers to Doe Run's comment concerning the numerical limit during Missouri's public comment process.

Response: The EPA finds that removal of the emission limits in Table 1 of 10 CSR 10-6.120, which were solely applicable to Doe Run's Herculaneum facility, is appropriate because the limits in the table are less stringent than the limits in the state's attainment plan and supporting Consent Judgment for the 2008 Lead National Ambient Air Quality Standards (NAAQS). The EPA's approval of the state's attainment plan for the 2008 Lead NAAQS was effective on November 19, 2014. See 79 FR 62572. Missouri's removal of the emissions limitations from Table 1 of 10 CSR 10-6.120 does not affect the enforceability of the state's more stringent attainment plan and the emission limits necessary to meet the 2008 Lead NAAQS.

As stated in the TSD for this action, the Herculaneum primary lead smelter ceased lead smelting operations on December 13, 2013 as required by a Consent Decree. 1 Doe Run's current and future operation of the facility is governed by the Consent Decree, which is federally enforceable, and the Consent Judgment, which has been approved into the Missouri SIP and is also federally enforceable. If a new company were to reopen the former primary lead smelter, it would be subject to the requirements of the Consent Decree, federal regulations such as the New Source Performance Standards for Primary Lead Smelters at 40 CFR part 60, subpart R, and the National Emission Standards for Hazardous Air Pollutants for Primary Lead Smelting at 40 CFR part 63, subpart TTT, in addition to the permitting requirements of the Missouri SIP.

Regarding the commenter's concern about removal of the numeric emission limit from 10 CSR 10-6.120 and Doe Run's comment to Missouri concerning a difference of opinion about what the limit should be, the EPA interprets this comment to apply to the Doe Run Resource Recycling Facility in Boss, Missouri, which is a separate facility from the former primary lead smelter in Herculaneum, Missouri. In reviewing the state's submittal to EPA (EPA-R07-2020-0256-002), the EPA notes that the numeric limit that was the subject of the Doe Run Resource Recycling Facility's comment to Missouri is outside of the scope of this action, as the limit is not contained in the version of 10 CSR 6.120 that was previously approved into the SIP, and the limit was not submitted for approval into the SIP in this action. See 80 FR 52194.

The EPA is taking final action to amend Missouri's SIP to include the revisions to 10 CSR 10-6.120 as requested in its February 15, 2019, submission.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA is amending 40 CFR part 52 as set forth below:

Throughout this document “we,” “us,” and “our” refer to the EPA.

The EPA is approving the removal of 10 Code of State Regulation (CSR) 10-5.410, Control of Emissions from Manufacture of Polystyrene Resin, from the Missouri SIP.

As explained in detail in EPA's proposed rule, Missouri has demonstrated that removal of 10 CSR 10-5.410 will not interfere with attainment of the NAAQS, reasonable further progress  1 or any other applicable requirement of the CAA because the single source subject to the rule ceased manufacturing polystyrene resin in 2009 and the removal of the rule will not cause VOC emissions to increase. (85 FR 43526, July 17, 2020). The EPA solicited but did not receive any comments on this proposed rule. Therefore, the EPA is finalizing its proposal to remove 10 CSR 10-5.410 from the SIP.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on this SIP revision from May 15, 2018, to August 2, 2018, and received twelve comments from the EPA that related to Missouri's lack of an adequate demonstration that the rule could be removed from the SIP in accordance with section 110(l) of the CAA, whether the rule applied to new sources and other implications related to rescinding the rule. Missouri's July 11, 2019 letter and December 3, 2018 response to comments on the state rescission rulemaking addressed the EPA's comments. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The EPA is taking final action to approve Missouri's request to remove 10 CSR 10-5.410 from the SIP.

In this document, the EPA is amending regulatory text that includes incorporation by reference. As described in the amendments to 40 CFR part 52 set forth below, the EPA is removing provisions of the EPA-Approved Missouri Regulation from the Missouri State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 24, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

Throughout this document “we,” “us,” and “our” refer to EPA.

The EPA is approving the revisions to 10 CSR 10-2.230 Control of Emissions from Industrial Surface Coating Operations in the Missouri SIP. The revisions to the rule remove restrictive words, adds exemptions, add definitions to the rule rather than referring to definitions in a separate rule, corrects test method references, removes obsolete requirements specific to sources that have closed, changes sections to the standard rule format, and makes minor clarifications and grammatical changes. These revisions are described in detail in the technical support document (TSD) included in the docket for this action. The EPA solicited comments on the proposed revision to Missouri's SIP, and received one comment in support of the action.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice of the revisions from August 1, 2018, to October 4, 2018, and held a public hearing on September 27, 2018. The state received and addressed eight comments. In addition, as explained above and in more detail in the technical support document (TSD) which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The EPA is taking final action to approve Missouri's request to amend 10 CSR 10-2.230.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

Throughout this document, “we,” “us” and “our” refer to the EPA.

EPA is approving the following revisions to SIPs received by EPA from Florida, Georgia, Kentucky, Mississippi, North Carolina, and South Carolina: (1) A portion of a SIP revision provided to EPA through the Florida Department of Environmental Protection (FL DEP) via a letter dated December 12, 2011;  1 2 (2) a SIP revision provided to EPA through the Georgia Environmental Protection Division (GA EPD) via a letter dated September 15, 2008;  3 (3) a SIP revision to the Jefferson County portion of the Kentucky SIP that was provided to EPA through the Kentucky Division for Air Quality (KDAQ) via a letter dated July 1, 2009;  4 (4) a SIP revision provided to EPA through the Mississippi Department of Environmental Quality (MDEQ) via a letter dated November 28, 2007; (5) a SIP revision provided to EPA through the North Carolina Department of Environmental Quality (NC DEQ)  5 6 7 via a letter dated June 20, 2008;  8 and (6) a portion of a SIP revision provided to EPA through the South Carolina Department of Health and Environmental Control (SC DHEC) via a letter dated April 14, 2009, 9 as updated in a portion of SIP revision provided to EPA via letter dated April 10, 2014.

These revisions conform the State rules to changes to EPA regulations reflected in EPA's final rule entitled “Prevention of Significant Deterioration, Nonattainment New Source Review, and Title V: Treatment of Certain Ethanol Production Facilities Under the “Major Emitting Facility” Definition” (hereinafter referred to as the “2007 Ethanol Rule”) as published in the Federal Register on May 1, 2007 (72 FR 24060). The 2007 Ethanol Rule amended the PSD definition of “major stationary source” to exclude certain ethanol facilities from the “chemical process plant” source category and clarified that the PSD major source applicability threshold for certain ethanol plants is 250 tpy (rather than 100 tpy). The 2007 Ethanol Rule also removed the requirement to include fugitive emissions when determining if an ethanol facility is a major source for PSD.

In its NPRM published on July 20, 2020 (85 FR 43788), EPA identified and evaluated the state and local regulations in the aforementioned SIP revisions that were revised in response to the Ethanol Rule. EPA also explained how these SIP revisions satisfy the completeness criteria of 40 CFR part 51, appendix V and meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. EPA included technical analyses in separate technical support documents (TSDs) included in the docket for this rulemaking. See these TSDs and the NPRM for further detail on the SIP revisions and EPA's rationale for approving them. EPA did not receive any relevant public comments on the NPRM. 10

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference the following regulations: Florida Rule 62-210.200, F.A.C., “Definitions,” state effective October 23, 2013;  11 12 Florida Rule 62-212.400, “Prevention of Significant Deterioration,” state effective October 23, 2013;  13 Georgia Rule 391-3-1-.02(7), “Prevention of Significant Deterioration of Air Quality (PSD),” state effective July 20, 2017;  14 Jefferson County Regulation 2.05, “Prevention of Significant Deterioration of Air Quality,” version 13, state effective January 17, 2018  15 16 for the Jefferson County portion of the Kentucky SIP; Mississippi Rule 11 MAC Part 2, Rule 5.2, “Adoption of Federal Rules by Reference,” state effective May 28, 2016;  17 18 North Carolina Rule 02D .0530, “Prevention of Significant Deterioration,” state effective September 1, 2017;  19 and South Carolina Rule 61- 62.5, Standard No. 7, “Prevention of Significant Deterioration,” state effective August 25, 2017. 20 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 21

EPA is approving revisions to the Florida SIP, Georgia SIP, the Jefferson County portion of the Kentucky SIP, Mississippi SIP, North Carolina SIP, and South Carolina SIP. The revisions to the state and local rules that EPA is approving change the definition of “major stationary source” under the States' and local agency's PSD regulations. These changes make clear that the PSD applicability threshold for certain ethanol plants is 250 tpy and remove the requirement to include fugitive emissions when determining if an ethanol plant is a major source for PSD (see section III for the rules being revised). EPA has determined that these revisions are consistent with EPA's PSD regulations and that approval of these revisions is consistent with the requirements of CAA section 110(l) and will not adversely impact air quality. EPA's analysis is available in the NPRM and the TSDs that were prepared for each SIP revision and are in the docket for this action. Approval of the revisions to these SIPs will ensure consistency between the State and federally approved rules and ensure federal enforceability of the State's revised air program rules.

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

• Are not significant regulatory actions 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);

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

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

• Are 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. );

• Do 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);

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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

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

The SIPs subject to these actions, with the exception of the South Carolina SIP, are 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 rules regarding SIPs do not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will they impose substantial direct costs on tribal governments or preempt tribal law. With respect to the South Carolina SIP, because this final action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law, this final action for the State of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” The CIN also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by state law or local governing bodies, in accordance with the Settlement Act.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document, “we,” “us” and “our” refer to the EPA.

On May 8, 2020 (85 FR 27344), the EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complies with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received one comment from Mr. Evan Stull, New Jersey:

Comment: Mr. Stull believes VOC levels in paint can be forcibly cut down under the EPA's authority. Further, he believes that the contamination of the air under the Clean Air Act is grounds to expand the EPA's role in the spread of VOCs and their toxic fumes.

Response: EPA appreciates the comment, but believes it is not germane to our action.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the FRAQMD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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 3, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

• Does not provide the 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 the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document “we,” “us,” and “our” refer to EPA.

The EPA is approving the revisions to 10 CSR 10-5.330 Control of Emissions From Industrial Surface Coating Operations in the Missouri SIP. The revisions to the rule add a new surface coating category for the decorative coating of foam products, establish an appropriate emission limit for this type of surface coating operation, remove obsolete provisions that were applicable prior to March 1, 2012, remove a reference to a rule that is being rescinded, remove restrictive words, add definitions specific to this rule, change rule language to be consistent with defined terms, and update incorporations by reference. These revisions are described in detail in the technical support document (TSD) included in the docket for this action. The EPA solicited comments on the proposed revision to Missouri's SIP, and received two comments unrelated to the proposed action.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice of the revisions from August 1, 2018, to October 4, 2018, and held a public hearing on September 27, 2018. The state received and addressed three comments. As explained in more detail in the TSD which is part of this docket, the SIP revision submission meets the substantive requirements of the CAA, including section 110 and implementing regulations.

The EPA is taking final action to approve Missouri's request to amend 10 CSR 10-5.330.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Missouri Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

On April 9, 2019, the EPA proposed to approve Idaho's September 27, 2018, SIP submission as meeting certain infrastructure requirements of the Clean Air Act (CAA) for the 2015 ozone NAAQS (84 FR 14067). The initial public comment period for this proposed action ended on May 9, 2019. Due to an administrative error, the EPA omitted certain documents relevant to the proposed action from the docket during the initial comment period, open from April 9, 2019 to May 9, 2019. The EPA corrected the administrative error and on May 28, 2019, we provided an additional 30 days for public comment on the proposed action (84 FR 24420). The public comment period ended on June 27, 2019. The EPA received adverse comments on the proposal.

The EPA received adverse comments during the initial comment period related to our administrative docket error that left out documents relevant to the proposed action. The EPA addressed these comments by including the relevant documents in the docket and providing an additional 30-day comment period. The EPA received one comment during the second comment period. We have summarized and responded to the remaining adverse comments below. The full text of the submitted comments may be found in the docket for this action.

Summary - The Idaho Conservation League (ICL) asserted that monitoring data indicates Idaho's efforts to prevent a violation of the 2015 ozone NAAQS are ineffective. ICL further asserted that the EPA's approval of the 2015 ozone infrastructure SIP submission should be contingent upon the State's “creation and implementation of new management strategies to address ozone in Idaho.”

Specifically, ICL pointed to Idaho's infrastructure SIP submission, at appendix B, Table B-1, indicating the 2015-2017 design value for ozone measured at the Boise—White Pine air monitoring station was 0.070 parts per million (ppm), equal to the 2015 ozone NAAQS. Moreover, ICL stated that in more recent years the monitor has shown exceedances and that the 2016-2018 design value is likely to violate the 2015 ozone NAAQS. ICL concluded that the laws, rules, and regulations referenced by Idaho in its 2015 ozone infrastructure SIP submission do not appear adequate. Thus, the commenter advocated that the EPA's approval of this SIP submission should be contingent upon Idaho's creation and implementation of new emissions management strategies to address ozone in Idaho.

Response —The EPA agrees that that the monitor data identified by the commenter indicates that there may be violations of the 2015 ozone NAAQS at this monitor, but disagrees that this is an issue that the State should address in the context of an infrastructure SIP submission. We have reviewed monitoring data at the Boise—White Pine Elementary monitor (Site ID: 160010017) and the design value for the most recent three-year period (2016-2018) is 0.072 ppm, which is over the 2015 ozone NAAQS of 0.070 ppm. At this point in time, all areas of Idaho are designated attainment for the 2015 ozone NAAQS. The EPA designated the entire State of Idaho as attainment/unclassifiable for the 2015 ozone NAAQS, based on 2013-2015 design value data (82 FR 54232, at page 54243). Each of the three monitors in Idaho that rely on Federal Reference Method (FRM) ozone monitoring data (Boise-White Pine, Meridian-St Luke's, and Craters of the Moon) had 2013-2015 design values below the 0.070 ppm ozone NAAQS. If there are now violations of the 2015 ozone NAAQS at any monitors, then either Idaho or the EPA may need to consider the need for a redesignation under section 107(d)(3), or other proactive actions to address the ambient ozone concentrations in the area.

The existence of possible violations of the NAAQS does not, however, directly affect Idaho's September 27, 2018, infrastructure SIP submission. As stated in the proposal, the EPA's longstanding position is that infrastructure SIP submissions are intended to address basic SIP requirements to implement, maintain, and enforce a NAAQS in general, and are not intended to address nonattainment plan requirements for individual areas of a state that may be violating the NAAQS. 1 Infrastructure SIPs are due within three years of adoption or revision of a particular NAAQS, according to CAA sections 110(a)(1) and (2). The separate nonattainment plan SIP submissions to address the emission limits and other control measures needed to attain a particular NAAQS in an area designated nonattainment are due on a separate schedule, pursuant to CAA section 172 and the various pollutant-specific subparts 2 through 5 of part D. 2

Summary— ICL stated that the EPA's approval of Idaho's SIP is inconsistent with EPA's previous comments regarding Idaho's ambient air monitoring network and compliance with CAA 110(a)(2)(B).

Specifically, for the Idaho Falls metropolitan statistical area (MSA), ICL cited the EPA's November 8, 2017, Air Monitoring Network Plan approval letter that noted monitoring network deficiencies, including a lack of a state and local air monitoring station (SLAMS) for ozone in Idaho Falls. Additionally, ICL stated that, pursuant to 40 CFR part 58, appendix D, Table D-2, cities with a population size greater than 50,000 with 3-year average ozone concentrations exceeding 85 percent of the NAAQS are required to have, at a minimum, one ozone monitor. ICL asserted that Idaho Falls meets this criterion.

ICL also referenced 40 CFR part 58, appendix D, Table D-2 and asserted that the Pocatello MSA, with a population of 54,441 and 3-year average ozone concentrations exceeding 85 percent of the NAAQS, is required to have, at a minimum, one ozone monitor. ICL also stated that Pocatello particularly needs a dedicated ozone monitor because the EPA's Environmental Justice Screening and Mapping tool, EJSCREEN, shows that the city of Pocatello is in the 90th percentile for ozone concentrations relative to the rest of the State.

ICL also cited the EPA's November 8, 2017, Air Monitoring Network Plan approval letter that noted a lack of ozone monitoring in the Logan, UT-ID MSA. ICL also noted that another developing metropolitan area in Idaho, Twin Falls (population: 47,468), needs an ozone monitor based on the criteria in 40 CFR part 58, appendix D, Table D-2.

Response— The EPA disagrees that there are current deficiencies in the ozone monitoring network in Idaho that require disapproval of the State's infrastructure SIP submission for the 2015 ozone NAAQS. First, in the context of an infrastructure SIP submission, the EPA interprets CAA section 110(a)(2)(B) to require states to have SIP provisions that provide for the establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request. In our proposed action, we stated that Idaho has a comprehensive air quality monitoring network plan, originally approved by the EPA into the Idaho SIP on July 28, 1982 (40 CFR 52.670). We also determined that the plan includes statutory and regulatory authority to establish and operate an air quality monitoring network, including ozone monitoring (84 FR 14067, April 9, 2019, at page 14068). The EPA recently approved Idaho's comprehensive monitoring network plan, further discussed in this document, on January 16, 2020. In practice, Idaho operates an ozone monitoring network, compiles and analyzes collected data, and submits the data to the EPA's Air Quality System on a quarterly basis.

Second, in the context of infrastructure SIP submissions, the EPA considers whether the State has met the monitoring requirements for the NAAQS at issue. With respect to monitor siting, Idaho regularly assesses the adequacy of the State monitoring network for each NAAQS pollutant and submits that assessment to the EPA for review (“Annual Network Plan”). The Annual Network Plan provides details of the State's air quality monitor system and evaluates whether the State's ambient air quality monitoring network is achieving its monitoring objectives, along with a discussion of any needed modifications. The commenter pointed to specific ozone monitoring network issues identified by the EPA in its November 2017 Annual Network Plan response letter. We will explain further in this document how the State has recently addressed each of the issues identified by the EPA concerning the adequacy of the State's ozone monitoring network and cited in ICL's comments on the proposed rulemaking. As a result, the EPA concludes here that the State has satisfactorily addressed the issues that the agency identified in the November 8, 2017, letter and do not present a basis for a finding that Idaho's SIP does not meet the requirements of CAA 110(a)(2)(B). These recent updates to Idaho's monitoring network system are described as follows:

The commenter expressed concerns about the potential need for additional ozone monitors in various locations in Idaho. With respect to the commenter's concerns about ozone monitoring in Idaho Falls, the EPA likewise disagrees that this is necessary at this time. In the 2019 Annual Network Plan response letter, included in this docket, the EPA granted a waiver of the requirement to install a State and Local Air Monitoring Stations (SLAMS) ozone monitor in Idaho Falls through the end of 2023. The EPA and Idaho will review the available eastern Idaho ozone monitoring data for calendar years 2020 and 2021 to re-assess the potential need to establish an ozone monitoring station in this MSA in 2023.

With respect to ozone monitoring in Pocatello, the EPA notes that the State has already addressed this concern. In Idaho's 2019 Annual Network Plan, Idaho DEQ acknowledged, based on recent modeling, the need to install an ozone monitor in Pocatello, ID. In accordance with appendix D to 40 CFR part 58, Idaho has since installed a monitor in that location. 3 The EPA notes that while the commenter cited information derived from the agency's EJSCREEN tool that combines environmental and demographic indicators for a particular area, the fact that Pocatello is in the 90th percentile for ozone concentrations relative to the rest of the State, that statistical comparison is not a monitor siting criteria under 40 CFR part 58, appendix D. 4 The relevant factors for ozone monitor siting are population size and estimated ambient level relative to the ozone NAAQS (greater than or equal to 85 percent of the ozone NAAQS), see 40 CFR part 58, appendix D, Table D-2.

With respect to the commenter's concerns about monitoring in the Logan, UT-ID area, the EPA disagrees with the commenter concerning the need for an ozone monitor at this point in time. Idaho recently requested, and the EPA approved in a letter dated May 12, 2020, an agreement, consistent with 40 CFR. part 58, appendix D, Section 2(e), to waive the requirement to locate an ozone monitor in the Idaho portion of the Logan, UT-ID MSA. This May 12, 2020, letter is included in the docket for this action. Idaho demonstrated that monitoring by the State of Utah currently meets the monitoring requirements for the Logan, UT-ID MSA. This waiver is effective for five years (CY-2020 through CY-2024) and is supported by modeling that demonstrates the location of maximum ozone concentrations is expected to be in Cache County, Utah and not in Franklin County, Idaho. Accordingly, the EPA agreed that additional monitoring performed by Idaho Department of Environmental Quality (DEQ) in Franklin County would not be necessary at this time to ensure the adequacy of the Logan UT-ID MSA ozone monitoring network.

Finally, with respect to the commenter's concerns about monitoring in Twin Falls, Idaho, the EPA disagrees with the need for such a monitor for purposes of the 2015 ozone NAAQS at this time. The ozone design criteria for state and local air monitors, 40 CFR part 58, appendix D, Section 4.1, directs states to operate ozone monitoring sites for various locations depending upon area size (in terms of population and geographic characteristics) and typical peak concentrations. The MSAs that meet these criteria are discussed above. Contrary to the commenter's assertions, Idaho is not required to locate an additional monitor in the Twin Falls area because its population does not exceed 50,000.

Based on the resolution of the monitoring issues identified by the commenter as described above, the EPA concludes that Idaho has met the infrastructure SIP monitoring requirement of CAA section 110(a)(2)(B) for the 2015 ozone NAAQS, and is finalizing the proposed approval with respect to this requirement.

Summary— An anonymous commenter stated that EPA guidance requires that Idaho must have a fully approved monitoring network for all pollutants for the EPA to approve the monitoring network requirements in section 110(a)(2)(B). In particular, the commenter asserted that sulfur dioxide (SO 2 ) monitors in the State are not sited correctly, and until monitor siting issues are addressed, the EPA should not approve the Idaho infrastructure SIP submission for the 2015 ozone NAAQS for purposes of CAA section 110(a)(2)(F). The commenter cited EPA statements related to SO 2 NAAQS designations in which the agency indicated that it did not have sufficient information to determine whether existing monitors were located in an area of maximum concentration around specific SO 2 sources. The commenter stated it was for this reason the EPA could not designate the entire State as attainment for the SO 2 NAAQS. The commenter further asserted that by designating the State as “unclassifiable/attainment” for the SO 2 NAAQS, the EPA had determined that Idaho does not have an adequate SO 2 monitoring network.

Response —The EPA disagrees with the commenter's interpretation of the EPA's 2013 Guidance as it pertains to monitoring network requirements. The EPA's Guidance does not interpret CAA section 110(a)(2)(B) to require consideration of the adequacy of an SO 2 NAAQS monitoring network in the context of evaluating the State's infrastructure SIP submission for the ozone NAAQS.

When the EPA promulgates a new or revised NAAQS, it triggers the requirement for each state to submit an infrastructure SIP submission that addresses basic SIP requirements for the implementation, maintenance, and enforcement of such standard. The infrastructure SIP submission must meet the requirements of CAA section 110(a)(1) and (2), as applicable. The ozone NAAQS was revised on October 1, 2015, thus triggering the requirement for Idaho to submit an infrastructure SIP with respect to the 2015 ozone NAAQS, including addressing the monitoring requirement of CAA section 110(a)(2)(B).

Although some infrastructure SIP elements are not NAAQS specific, e.g., CAA section 110(a)(2)(C) with respect to PSD permitting programs, many other elements are NAAQS specific. The EPA interprets CAA section 110(a)(2)(B) to be such a NAAQS specific requirement, and thus only requires states to address the relevant NAAQS in an infrastructure SIP submission, which in this action is the 2015 ozone NAAQS. 5

In addition, the EPA notes that it most recently revised the SO 2 NAAQS in 2010. Idaho submitted an infrastructure SIP submission for purposes of the 2010 SO 2 NAAQS, and the EPA approved the submission as meeting CAA section 110(a)(2)(B) for the 2010 SO 2 NAAQS on August 11, 2014 (79 FR 46707). Because the comments pertain to the SO 2 NAAQS, they are outside of the scope of this action, given that the EPA is not revisiting its prior approval of the Idaho SO 2 infrastructure SIP for CAA section 110(a)(2)(B).

The commenter also expressed concern that Idaho has incorrectly sited SO 2 monitors and therefore they must be corrected in order to comply with CAA section 110(a)(2)(F). CAA section 110(a)(2)(F) requires owners or operators of stationary sources to monitor emissions from such sources, provide periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlate those reports with any emission limitations or standards established pursuant to the CAA. The CAA further requires that those reports shall be available at reasonable times for public inspection. As previously explained, however, the infrastructure SIP submission at issue in this action addresses the 2015 ozone NAAQS. As with CAA section 110(a)(2)(B), however, the EPA interprets CAA section 110(2)(F) in the context of infrastructure SIP submissions to pertain only to the NAAQS at issue in such SIP submission, i.e., in this case with respect to the 2015 ozone NAAQS. Moreover, the EPA previously approved the Idaho SIP for purposes of CAA section 110(a)(2)(F) for the 2010 SO 2 NAAQS on August 11, 2014, (79 FR 46707). The comment is, thus, outside the scope of the present action.

The EPA has considered the concerns raised by this commenter with respect to CAA section 110(a)(2)(B) and section 110(a)(2)(F), but has concluded that approval of Idaho's September 27, 2018, SIP submission is appropriate for the reasons explained above.

Summary— An anonymous commenter stated that, in its proposed approval of CAA section 110(a)(2)(E), the EPA failed to evaluate adequate funding and resources necessary to carry out the functions delegated to the State and required by the State to carry out the functions of the SIP. The commenter asserts that the EPA must audit Idaho's finances and accounting to make an affirmative determination as to whether the State has the necessary funding and resources. The anonymous commenter also stated that the EPA should affirmatively determine whether Idaho actually has the necessary personnel to carry out and operate programs required under the SIP, rather than solely relying on the Idaho director's ability to hire personnel.

Response —CAA section 110(a)(2)(E)(i) requires each state to provide necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP. CAA section 110 does not mandate a specific methodology for the EPA to evaluate the adequacy of resources to implement the SIP. See 76 FR 42549 (July 19, 2011), at 42554. The commenter did not identify a specific factual basis for concerns that Idaho lacks adequate personnel, funding, and authority under State law to carry out the SIP. The EPA disagrees with the commenter's assertion that an audit of the State's finances and accounting practices is required in order to satisfy the requirements of 110(a)(2)(E)(i). The EPA's role in approving a SIP submission is to determine whether the submission addresses the necessary requirements of the Act, not to evaluate the way in which a SIP is being implemented. See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971, 978 (9th Cir. 2018).

In our proposed action, we identified Idaho Code 39-106 as providing the Idaho DEQ Director authority to hire personnel to carry out duties of the department. According to Idaho DEQ's Fiscal Year 2019 Performance Report, Idaho DEQ received $56 million overall to perform its core functions ($23 million from federal funds, $20 million from State funds, and $13 million from other permit and fee programs). Specifically, Idaho receives CAA sections 103 and 105 grant funds from the EPA and provides State matching funds necessary to carry out SIP requirements.

The EPA finds that Idaho has provided the necessary assurances of adequate sources of personnel, funding, and authority under State law to implement its SIP for purposes of the 2015 ozone NAAQS. Therefore, it is appropriate to finalize the proposed finding that Idaho's SIP satisfies the requirements of CAA section 110(a)(2)(E).

The EPA is approving Idaho's September 27, 2018, infrastructure SIP submission as meeting specific infrastructure requirements of the CAA. We find that the Idaho SIP meets the following CAA section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), as applicable.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this 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 (Public Law 104-4);

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

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

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

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not involve technical standards; and

• Does not provide the 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 the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us” and “our” refer to the EPA.

On May 15, 2020 (85 FR 29377) the EPA proposed to finalize a limited approval and limited disapproval and full approval of the following rules into the California SIP.

The District submitted these rules to address deficiencies that the EPA identified in a conditional approval of prior versions of Rules 20.1-20.4 at 83 FR 50007 (October 4, 2018). The 2018 action also included a conditional approval of Rule 20.6 and a full approval of Rules 11, 20, and 24. In our May 15, 2020 proposal, we proposed to approve the submitted rules because we determined that they satisfy the District's commitment to remedy the deficiencies identified in our conditional approval of the Rules 20.1-20.4 and Rule 20.6, and generally comply with most applicable CAA requirements. However, we also determined that Rule 20.1(a) does not satisfy the requirements related to 40 CFR 51.160(a) and (b) and CAA section 173(a). The District revised Rule 20.1(a) to specify that the rule applies to a permit application based on the requirements in the rule as in effect on the date that the application is determined to be complete. By specifying the rule's applicability based on the date of application completeness, this language may limit the Air Pollution Control Officer's ability to ensure a source will comply with applicable NSR program requirements at the time the permit is issued. This deficiency is the basis for the EPA's final limited approval and limited disapproval of Rule 20.1. In order to correct this deficiency, we recommend that SDAPCD remove or revise the language added in the revised Rule 20.1(a).

The EPA's proposed action provided a 30-day public comment period. During this period, we received one comment, which is included in the docket for this action. We do not consider this comment to be germane or relevant to this action and therefore not adverse to this action. Moreover, the comment lacks the required specificity to the proposed SIP revision and the relevant CAA requirements, and does not address any specific regulation or provision in question or recommend a different action on the SIP submission from what EPA proposed. Therefore, we are finalizing our action as proposed.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) and 301(a) of the Act, the EPA is finalizing full approval of Rules 20.2-20.4 and finalizing a limited approval and limited disapproval of Rule 20.1. This action incorporates the submitted rules into the California SIP, including those provisions identified as deficient. Because the submitted rules address the deficiencies identified in our October 4, 2018 conditional approval, the EPA is removing from the SIP the conditional approval of Rules 20.1-20.4 and Rule 20.6 at 40 CFR 52.248(e).

This approval is limited because EPA is simultaneously finalizing a limited disapproval of the rule under section 110(k)(3). Our limited disapproval action triggers an obligation for the EPA to promulgate a Federal Implementation Plan (FIP) unless the State corrects the deficiencies, and the EPA approves the related plan revisions, within two years of this final action. Additionally, because the deficiency relates to Nonattainment NSR requirements under part D of title I of the Act, sanctions will be imposed unless the EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act and 40 CFR 52.31. The EPA intends to work with the SDAPCD to correct the deficiency in a timely manner.

Note that Rule 20.1 has been adopted by the SDAPCD, and the EPA's final limited disapproval does not prevent the local agency from enforcing it. The limited disapproval would also not prevent any portion of the rule from being incorporated by reference into the federally enforceable SIP as discussed in a July 9, 1992 EPA memo found at: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SDAPCD rules described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Additional information about these statutes and Executive orders can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action is not an Executive Order 13771 regulatory action because SIP approvals, including limited approvals, are exempted under Executive Order 12866.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends part 52, Chapter I, Title 40 of the Code of Federal Regulations as follows:

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

This rule approves the January 21, 2020 and February 12, 2020 submissions from Wisconsin for the VOC RACT SIP revision. The background for this action is discussed in detail in EPA's proposal, dated April 17, 2020 (85 FR 21351). EPA is not taking final action on any other elements included in our April 17, 2020 proposal (85 FR 21351).

EPA provided a 30-day review and comment period for the April 17, 2020, proposed rule. The comment period ended on May 18, 2020. We received adverse comments, which are summarized and addressed below.

Comment 1a: The commenter argues that RACT for Insinkerator cannot be implemented by way of administrative order and meet the VOC RACT requirements of the CAA. The commenter contends that EPA should not allow a state to use an administrative order to implement RACT requirements in place of duly enacted regulatory provisions under the state's rulemaking process. The commenter also alleges that the administrative order is problematic because it has a section that allows the state to unilaterally terminate the order at a point in the future.

Response 1a: Section 182(b)(2) of the CAA requires states to submit to EPA a SIP revision including “provisions to require the implementation of reasonably available control technology. . . .” This can be accomplished in a variety of ways. Often, as noted by the commenter, states have adopted regulations through a state rulemaking process and submitted those regulations to EPA to be approved into the SIP. However, the state can choose to submit any permanent and enforceable limits for approval into the SIP to satisfy the CAA's RACT requirement. Wisconsin has legal authority under ss. 285.11(6) and 285.13(2), Wis. Stats., to issue administrative orders that establish stationary source emission limitations for the purpose of demonstrating and maintaining attainment for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS or standard). Wisconsin submitted Administrative Order AM-20-01, which establishes source-specific limits at the Insinkerator facility that are equivalent to emission reductions achieved through the 2008 Miscellaneous Metal and Plastic Parts Coatings Control Techniques Guidelines (CTG). The effective date for Administrative Order AM-20-01 was January 9, 2020. As part of the SIP, the requirements of this Administrative Order may not be terminated until Wisconsin submits a SIP revision that demonstrates the requirements could be removed from the SIP in accordance with section 110(l) of the CAA.

Comment 1b: The commenter argues that the order has legal vulnerabilities which make it improper to approve into the SIP. Namely, the order prevents third party litigants from enforcing the requirements of the order. See the Waiver and Stipulation section of the order: “This stipulation and waiver does not affect the right of Insinkerator to assert any equitable or legal defense or to challenge the interpretation or application of this Administrative Order in any challenge or alleging of violation brought by a party other than the department or EPA.”

Response 1b: The language in the “Waiver and Stipulation” does not prevent third parties from taking legal action against Insinkerator. However, the source can defend itself against third party challenges to the administrative order. Administrative Order AM-20-01 establishes, through permanent and enforceable emission limits and other requirements, a RACT equivalency demonstration for the Insinkerator facility. This language says that Insinkerator will comply with the order and not challenge issues brought about by EPA or WNDR. Nothing in the order precludes EPA or WNDR from enforcing the terms of the order. For these reasons, the order can be approved as RACT in the SIP.

Comment 1c: The commenter asserts that EPA is attempting to redesignate the area before all applicable RACT rules for the area are in place. EPA must follow the rules and wait to approve the Redesignation Request until Wisconsin promulgates a rule meeting the CTG and submits it to EPA for approval into the SIP.

Response 1c: The September 4, 1992, Calcagni memorandum ( see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) notes that approval action on SIP elements and the redesignation request may occur simultaneously. EPA acknowledged in its proposed redesignation at 85 FR 21351 that approval of Wisconsin's VOC RACT submittal is a prerequisite for approval of the redesignation of the Kenosha portion of the Chicago area to attainment of the 2008 8-hour ozone standard. This simply requires that EPA approve Wisconsin's VOC RACT SIP at the same time or before finalizing approval of the redesignation. EPA is only approving Wisconsin's VOC RACT SIP in this action. EPA is not taking final action on any other elements included in our April 17, 2020 proposal (85 FR 21351). Therefore, this requirement for redesignation has been met.

EPA is approving the VOC RACT SIP revisions included in Wisconsin's January 21, 2020 and February 12, 2020 submittals. EPA finds Wisconsin's VOC RACT SIP submittals to be approvable as meeting the moderate VOC RACT requirements of section 182(b)(2) of the CAA.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Wisconsin Administrative Order described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends title 40 CFR part 52 as follows:

Throughout this document “we,” “us,” and “our” means the EPA.

On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm. 1 More recently, on October 1, 2015, the EPA revised the NAAQS for ozone, further strengthening the primary and secondary 8-hour standards to 0.070 ppm. 2 The October 1, 2015 standards are known as the 2015 ozone NAAQS.

Section 110(a)(1) of the CAA directs each state to make an infrastructure SIP submission to the EPA within 3 years of promulgation of a new or revised NAAQS. Infrastructure requirements for SIPs are provided in section 110(a)(1) and (2) of the CAA. Section 110(a)(2) lists the specific infrastructure elements that a SIP must contain or satisfy. The elements that are the subject of this action are described in detail in our notice of proposed rulemaking (NPRM) published on June 1, 2020 for the State of Utah's infrastructure SIP revision, which was submitted to the EPA on January 29, 2020. 3

Comments on our June 1, 2020 NPRM were due on or before July 1, 2020. We received no comments on the proposal.

In this rulemaking, we are approving multiple elements of the infrastructure SIP requirements for the 2015 ozone NAAQS for Utah; we are taking no action here on three infrastructure SIP elements. The actions we are approving are contained in Table 1 below. The EPA is approving Utah's January 29, 2020 SIP submission for the following CAA section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(II) Prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The EPA is taking no action in this rule on elements (D)(i)(I) (Prongs 1 and 2) and (D)(i)(II) (Prong 4).

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

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On July 10, 2020 (85 FR 41479), the EPA proposed to determine that the Los Angeles-South Coast Air Basin (“South Coast”) Serious nonattainment area failed to attain the 2006 PM 2.5 national ambient air quality standards (NAAQS)  1 by the applicable attainment date of December 31, 2019. Our proposed determination was based on complete, quality-assured, and certified ambient air quality date for the 2017 to 2019 monitoring period. The South Coast 2006 PM 2.5 NAAQS nonattainment area includes Orange County, the southwestern two-thirds of Los Angeles County, southwestern San Bernardino County, and western Riverside County. 2

Our proposed rule provided background information on the effects of exposure to elevated levels of PM 2.5 , the designation and classification of the South Coast under the Clean Air Act (CAA) for the 2006 PM 2.5 NAAQS, the plans developed by California to address nonattainment area requirements for the South Coast, the reclassification of the area from “Moderate” to “Serious,” and the related extension of the applicable attainment date to December 31, 2019. 3

In our July 10, 2020 proposed rule, we also described the following: the statutory basis ( i.e., CAA sections 179(c)(1) and 188(b)(2)) for the obligation on the EPA to determine whether an area's air quality meets the 2006 PM 2.5 NAAQS; the EPA regulations establishing the specific methods and procedures to determine whether an area has attained the 2006 PM 2.5 NAAQS; and the PM 2.5 monitoring networks operated in the South Coast by the South Coast Air Quality Management District and the Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation and related monitoring network plans. 4 We also documented our previous review of the networks and network plans, the agencies' annual certifications of ambient air monitoring data, and our determination that 17 of the 18 monitoring sites within the South Coast produced valid design values for purposes of comparison with the 2006 PM 2.5 NAAQS. 5

Under EPA regulations in 40 CFR 50.13 and in accordance with 40 CFR part 50, Appendix N, the 2006 PM 2.5 NAAQS is met when the design value is less than or equal to 35.0 µg/m 3 . More specifically, the design value is the 3-year average of annual 98th percentile 24-hour average values recorded at each eligible monitoring site, and the 2006 PM 2.5 NAAQS are met when the design value for the 24-hour standards at each such monitoring site is less than or equal to 35 µg/m 3 .

In our proposed rule, to evaluate whether the South Coast attained the 2006 PM 2.5 NAAQS by the December 31, 2019 attainment date, we determined the 2017-2019 design values at each of the 18 PM 2.5 monitoring sites for the 24-hour PM 2.5 standard. See Table 1 of our July 10, 2020 proposed rule. 6 Based on the valid design values at 17 of the sites, we found that two sites did not meet the 2006 PM 2.5 NAAQS of 35 µg/m 3 by the December 31, 2019 attainment date: the Compton site in Los Angeles County and the Mira Loma site in Riverside County. The 2019 24-hour design value site, i.e., the site with the highest design value based on 2017-2019 data, is the Compton site with a 2019 24-hour PM 2.5 design value of 38 µg/m 3 .

For the South Coast to attain the 2006 PM 2.5 NAAQS by December 31, 2019, the 2019 design value (reflecting data from 2017-2019) at each eligible monitoring site in the South Coast must be equal to or less than 35 µg/m 3 . Because at least one site had 2019 design values greater than 35 µg/m 3 , we proposed to determine that the South Coast failed to attain the 2006 PM 2.5 standard by the December 31, 2019 attainment date and described the CAA requirements that would apply if the EPA were to finalize the proposed finding of failure to attain. 7 With today's action, we finalize this determination.

In addition to our proposed finding of failure to attain, we proposed under CAA section 110(k)(6) to correct an error that we introduced into the table for California designations for the 2006 PM 2.5 NAAQS in 40 CFR 81.305. 8 In 2016, we reclassified the South Coast from Moderate to Serious for the 2006 PM 2.5 standard, but we erroneously considered the lands of the Santa Rosa Band of Cahuilla Mission Indians in Riverside County to be part of the South Coast Moderate nonattainment area and revised the designation for those lands from unclassifiable/attainment to Serious nonattainment. We are finalizing our correction of this error by revising the table for California area designations for the 24-hour PM 2.5 NAAQS to indicate the designation is unclassifiable/attainment for the lands of the Santa Rosa Band of Cahuilla Mission Indians in Riverside County.

Please see our July 10, 2020 proposed rule for more information about the topics summarized above.

Since our proposed rule, we have discovered that PM 2.5 data excluded from the design values calculated at certain monitoring sites, and presented in Table 1 of our proposed rule, should not have been excluded. 9 The monitoring sites for which 2019 design values may change once this issue is resolved include Rubidoux, Anaheim, South Long Beach, Los Angeles (Main Street), Mira Loma, Long Beach Route 710, and Ontario Route 60. This issue does not affect our determination that the South Coast failed to attain the 2006 PM 2.5 NAAQS by the applicable attainment date because our determination needs only a single violating monitor over the relevant time period to be adequately supported, and the violating monitor at the Compton site is not affected by this issue. We will continue to work with the District on this issue as they develop the SIP revision triggered by the determination that we are finalizing today.

Our July 10, 2020 proposed rule provided a 30-day public comment period that closed on August 10, 2020. During this period, one anonymous comment letter was submitted by a member of the public. The comments in the letter are generally supportive of the proposed determination, but also raise issues that are outside of the scope of this rulemaking, including suggestions to the State and local governments in the South Coast for use in developing the revised plan. The beyond-the-scope comments do not relate to any of the specific topics discussed in the proposal, nor do they address the EPA's rationale for the proposed determination of failure to attain. Consequently, the EPA is not responding to the comments and is finalizing the action as proposed. The comment letter we received is included in the docket for this action.

Under CAA sections 179(c)(1) and 188(b)(2), the EPA is taking final action to determine that the South Coast “Serious” PM 2.5 nonattainment area has failed to attain the 2006 PM 2.5 NAAQS by the applicable attainment date of December 31, 2019. In response to this determination, the State of California is required under 40 CFR 51.1003(c) to submit a revision to the SIP for the South Coast that, among other elements, demonstrates expeditious attainment of the NAAQS within the time period prescribed by 40 CFR 51.1004(a)(3) and that provides for annual reduction in the emissions of direct PM 2.5 or a PM 2.5 plan precursor pollutant within the area of not less than five percent until attainment. 10 The SIP revision required under 40 CFR 51.1003(c) is due for submittal to the EPA no later than December 31, 2020.

We are also correcting an error in a previous rulemaking and restoring the designation of “Unclassifiable/Attainment” for the 2006 PM 2.5 NAAQS for the lands of the Santa Rosa Band of Cahuilla Mission Indians in Riverside County in the appropriate table in 40 CFR 81.305.

This action in and of itself establishes no new requirements; it merely documents that air quality in the South Coast did not meet the 2006 PM 2.5 NAAQS by the applicable attainment date. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

In addition, this action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP obligations discussed herein do not apply to Indian tribes and thus this action will not impose substantial direct costs on tribal governments or preempt tribal law. Nonetheless, the EPA notified the tribes within the South Coast PM 2.5 nonattainment area of the proposed action and offered formal consultation. No tribe requested formal consultation.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons stated in the preamble, the EPA amend chapter I, title 40 of the Code of Federal Regulations as follows:

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

On July 14, 2020, EPA proposed to approve the redesignation of the Morgan County SO 2 nonattainment area to attainment of the 2010 SO 2 NAAQS and to approve Indiana's maintenance plan for the nonattainment area (85 FR 42337). An explanation of the CAA requirements, a detailed analysis of the revisions, and EPA's reasons for proposing approval were provided in the notice of proposed rulemaking and will not be restated here. The public comment period for the proposed action ended on August 13, 2020. EPA received no comments on the proposal.

EPA is redesignating the Morgan County nonattainment area to attainment of the 2010 SO 2 NAAQS. Indiana has demonstrated that the area is attaining the 2010 SO 2 NAAQS and that the improvement in air quality is due to permanent and enforceable SO 2 emission reductions in the nonattainment area. EPA is also approving Indiana's maintenance plan, which is designed to ensure that the area will continue to maintain the 2010 SO 2 NAAQS.

In accordance with 5 U.S.C. 553(d) of the Administrative Procedure Act (APA), EPA finds there is good cause for these actions to become effective immediately upon publication. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1) and U.S.C. 553(d)(3).

Section 553(d)(1) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. EPA has determined that this rule relieves a restriction because this rule relieves sources in the area of Nonattainment New Source Review (NNSR) permitting requirements; instead, upon the effective date of this action, sources will be subject to less restrictive Prevention of Significant Deterioration (PSD) permitting requirements.

Section 553(d)(3) of the APA provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . as otherwise provided by the agency for good cause.” The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). Thus, in determining whether good cause exists to waive the 30-day delay, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105. EPA has determined that there is good cause for making this final rule effective immediately because this rule does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. On balance, EPA finds affected parties would benefit from the immediate ability to comply with PSD requirements, instead of delaying by 30 days the transition from NNSR to PSD.

For these reasons, EPA finds good cause under both 5 U.S.C. 553(d)(1) and U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866;

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of SO 2 national ambient air quality standards in tribal lands.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the EPA amends 40 CFR parts 52 and 81 as follows:

Throughout this document “we,” “us,” and “our” means the EPA.

The EPA is providing notice that it is updating the delegation for the implementation and enforcement of certain NSPS. The EPA is also taking direct final action to approve the delegation of certain NESHAP to ABCAQCB. With this delegation, ABCAQCB has the primary responsibility to implement and enforce the delegated standards. See sections VII and VIII, below, for a discussion of which standards are being delegated and which are not being delegated.

Upon the EPA's finding that the procedures submitted by a state or local agency for the implementation and enforcement of standards of performance for new sources located in the state or local agency are adequate, Section 111(c)(1) of the Clean Air Act (CAA) authorizes the EPA to delegate its authority to implement and enforce such standards. The NSPS are codified at 40 CFR part 60.

Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize the EPA to delegate authority for the implementation and enforcement of NESHAP to a state or local agency that satisfies the statutory and regulatory requirements in subpart E. The NESHAP are codified at 40 CFR parts 61 and 63.

In order to receive delegation of NSPS, a state must develop and submit to the EPA a procedure for implementing and enforcing the NSPS in the state, or in the local agency's jurisdiction as discussed above, and their regulations and resources must be adequate for the implementation and enforcement of the NSPS. The EPA initially approved ABCAQCB's program for the delegation of NSPS on December 20, 1989 (54 FR 52031). The EPA reviewed the rules and regulations of the ABCAQCB and determined ABCAQCB's procedures, regulations and resources adequate for the implementation and enforcement of the Federal standards. The NSPS delegation was most recently updated on February 19, 2015 (80 FR 8799). This action notifies the public that the EPA is updating ABCAQCB's delegation to implement and enforce certain additional NSPS since the last update.

Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a state for the delegation of NESHAP if the EPA determines that:

(A) The authorities contained in the program are not adequate to assure compliance by the sources within the state with respect to each applicable standard, regulation, or requirement established under section 112;

(B) Adequate authority does not exist, or adequate resources are not available, to implement the program;

(C) The schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or

(D) The program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.

In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation), a state must demonstrate that it meets the criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim or final Title V program approval will satisfy the criteria of 40 CFR 63.91(d). 1

The NESHAP delegation for ABCAQCB, as it applies to both Title V and non-Title V sources, was most recently approved on February 19, 2015 (80 FR 8799).

As to the NSPS in 40 CFR part 60, ABCAQCB adopted the Federal standards via incorporation by reference into State regulations. The ABCAQCB regulations are, therefore, at least as stringent as the EPA's rules. See 40 CFR 60.10(a). Also, in the EPA initial approval of NSPS delegation, we determined that the State developed procedures for implementing and enforcing the NSPS in the State, and that the State's regulations and resources are adequate for the implementation and enforcement of the Federal standards. See 54 FR 52031 (December 20, 1989).

As to the NESHAP in 40 CFR parts 61 and 63, ABCAQCB's Title V program submission dated April 4, 1994, stated that it intended to use the mechanism of incorporation by reference to adopt unchanged Federal section 112 standards into its regulations. See 60 FR 2527 (January 10, 1995). This commitment applied to both existing and future standards as they applied to part 70 sources. The EPA's final interim approval of ABCAQCB's Title V operating permits program delegated the authority to implement certain NESHAP. See 60 FR 13046 (March 10, 1995). On November 26, 1996, the EPA promulgated final full approval of ABCAQCB's operating permits program, effective January 27, 1997 (61 FR 60032). These interim and final Title V program approvals satisfy the upfront approval criteria of 40 CFR 63.91(d). Under 40 CFR 63.91(d)(2), once a state has satisfied the up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the section 112 standards. As stated in its May 24, 2017, submittal, ABCAQCB has affirmed that it still meets the up-front approval criteria. With respect to non-Title V sources, the EPA has previously approved delegation of NESHAP authorities to ABCAQCB after finding adequate authorities to implement and enforce the NESHAP for non-Title V sources. See 70 FR 73138 (December 9, 2005).

By letter dated May 24, 2017, the EPA received a request from ABCAQCB to update its NSPS delegation and NESHAP delegation. With certain exceptions noted in section VI below, ABCAQCB's request includes certain NSPS promulgated by the EPA at 40 CFR part 60, as amended between September 13, 2013, and January 23, 2017; certain NESHAP promulgated by the EPA at 40 CFR part 61, as amended between September 13, 2013, and January 23, 2017; and other NESHAP promulgated by the EPA at 40 CFR part 63, as amended between September 13, 2013, and January 23, 2017, as adopted by the ABCAQCB.

All authorities not affirmatively and expressly delegated by this action are not delegated. These include the following part 60, 61 and 63 authorities listed below:

• 40 CFR part 60, subpart AAA (Standards of Performance for New Residential Wood Heaters);

• 40 CFR part 60, subpart QQQQ (Standards of Performance for New Residential Hydronic Heaters and Forced-Air Furnaces);

• 40 CFR part 61, subpart B (National Emission Standards for Radon Emissions From Underground Uranium Mines);

• 40 CFR part 61, subpart H (National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities);

• 40 CFR part 61, subpart I (National Emission Standards for Radionuclide Emissions From Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H);

• 40 CFR part 61, subpart K (National Emission Standards for Radionuclide Emissions From Elemental Phosphorus Plants);

• 40 CFR part 61, subpart Q (National Emission Standards for Radon Emissions From Department of Energy facilities);

• 40 CFR part 61, subpart R (National Emission Standards for Radon Emissions From Phosphogypsum Stacks);

• 40 CFR part 61, subpart T (National Emission Standards for Radon Emissions From the Disposal of Uranium Mill Tailings);

• 40 CFR part 61, subpart W (National Emission Standards for Radon Emissions From Operating Mill Tailings).

In addition, the EPA regulations provide that we cannot delegate to a state any of the Category II authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some Part 61 and Part 63 standards have certain provisions that cannot be delegated to the states. Furthermore, no authorities are delegated that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not delegate any authority under section 112(r), the accidental release program.

All inquiries and requests concerning implementation and enforcement of the excluded standards in Albuquerque-Bernalillo County should be directed to the EPA Region 6 Office.

In addition, this delegation to ABCAQCB to implement and enforce certain NSPS and NESHAP authorities does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151.

In approving the NSPS delegation, ABCAQCB will obtain concurrence from the EPA on any matter involving the interpretation of section 111 of the CAA or 40 CFR part 60 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance. See FR 52031 (December 20, 1989).

In approving the NESHAP delegation, ABCAQCB will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance.

The EPA retains the right, as provided by CAA section 111(c)(2), to enforce any applicable emission standard or requirement under section 111.

We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved state rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make certain decisions under the General Provisions (subpart A) of parts 61 and 63. We are delegating ABCAQCB some of these authorities, and retaining others, as explained in sections V and VI above. In addition, the EPA may review and disapprove determinations made by state and local authorities and subsequently require corrections. See 40 CFR 63.91(g)(1)(ii). EPA also has the authority to review ACBAQCB's implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See 40 CFR 63.96.

Furthermore, the EPA retains any authority in an individual emission standard that may not be delegated according to provisions of the standard. Also, listed in footnote 2 of the part 63 delegation table at the end of this rule are the authorities that cannot be delegated to any state or local agency which we therefore retain.

Finally, the EPA retains the authorities stated in the initial notice of delegation of authority. See 54 FR 52031 (December 20, 1989).

ABCAQCB must provide any additional compliance related information to the EPA, Region 6, Office of Enforcement and Compliance Assurance, within 45 days of a request under 40 CFR 63.96(a). In receiving delegation for specific General Provisions authorities, ABCAQCB must submit to EPA Region 6, on a semi-annual basis, copies of determinations issued under these authorities. See 40 CFR 63.91(g)(1)(ii). For 40 CFR part 63 standards, these determinations include: Section 63.1, Applicability Determinations; Section 63.6(e), Operation and Maintenance Requirements—Responsibility for Determining Compliance; Section 63.6(f), Compliance with Non-Opacity Standards—Responsibility for Determining Compliance; Section 63.6(h), Compliance with Opacity and Visible Emissions Standards—Responsibility for Determining Compliance; Sections 63.7(c)(2)(i) and (d), Approval of Site-Specific Test Plans; Section 63.7(e)(2)(i), Approval of Minor Alternatives to Test Methods; Section 63.7(e)(2)(ii) and (f), Approval of Intermediate Alternatives to Test Methods; Section 63.7(e)(iii), Approval of Shorter Sampling Times and Volumes When Necessitated by Process Variables or Other Factors; Sections 63.7(e)(2)(iv), (h)(2), and (h)(3), Waiver of Performance Testing; Sections 63.8(c)(1) and (e)(1), Approval of Site-Specific Performance Evaluation (Monitoring) Test Plans; Section 63.8(f), Approval of Minor Alternatives to Monitoring; Section 63.8(f), Approval of Intermediate Alternatives to Monitoring; Section 63.9 and 63.10, Approval of Adjustments to Time Periods for Submitting Reports; Section 63.10(f), Approval of Minor Alternatives to Recordkeeping and Reporting; and Section 63.7(a)(4), Extension of Performance Test Deadline.

The EPA oversees the ABCAQCB's decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that the ABCAQCB made decisions that decreased the stringency of the delegated standards, then the ABCAQCB shall be required to take corrective actions and the source(s) affected by the decisions will be notified. See 40 CFR 63.91(g)(1)(ii) and 63.91(b). Our oversight authorities allow us to initiate withdrawal of the program delegation if the corrective actions taken are insufficient. See 51 FR 20648 (June 6, 1986).

All the information required pursuant to the Federal NSPS and NESHAP (40 CFR parts 60, 61 and 63) should be submitted by sources located inside the boundaries of Bernalillo County and areas outside of Indian country directly to the ABCAQCB at the following address: City of Albuquerque, Albuquerque Environmental Health Department, P.O. Box 1293, Albuquerque, New Mexico 87103. The ABCAQCB is the primary point of contact with respect to delegated NSPS and NESHAP authorities. Sources do not need to send a copy to the EPA. The EPA Region 6 waives the requirement that copies of notifications and reports for delegated authorities be submitted to the EPA in addition to ABCAQCB in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii). 2 For those authorities not delegated, sources must continue to submit all appropriate information to the EPA.

In the future, ABCAQCB will only need to send a letter of request to update their delegation to EPA, Region 6, for those NSPS which they have adopted by reference. The EPA will amend the relevant portions of the Code of Federal Regulations showing which NSPS standards have been delegated to ABCAQCB. Also, in the future, ABCAQCB will only need to send a letter of request for approval to EPA, Region 6, for those NESHAP regulations that ABCAQCB has adopted by reference. The letter must reference the previous up-front approval demonstration and reaffirm that it still meets the up-front approval criteria. We will respond in writing to the request stating that the request for delegation is either granted or denied. A Federal Register action will be published to inform the public and affected sources of the delegation, indicate where source notifications and reports should be sent, and to amend the relevant portions of the Code of Federal Regulations showing which NESHAP standards have been delegated to ABCAQCB.

The public was provided the opportunity to comment on the proposed interim approval (60 FR 2570) and direct final interim approval (60 FR 2527) of ABCAQCB's Title V operating permit program, and mechanism for delegation of section 112 standards as they apply to part 70 sources, on January 10, 1995. On March 10, 1995, EPA published an informational notice in the Federal Register informing the public that the direct final interim approval would remain final. (60 FR 13046). In today's action, the public is given the opportunity to comment on the approval of ABCAQCB's request for delegation of authority to implement and enforce certain section 112 standards for all sources (both part 70 and non-part 70 sources) which have been adopted by reference into ABCAQCB's regulations. However, the Agency views the approval of these requests as a noncontroversial action and anticipates no adverse comments. Therefore, EPA is publishing this rule without prior proposal. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the program and NESHAPs delegation of authority described in this action if adverse comments are received. This action will be effective December 15, 2020 without further notice unless the Agency receives relevant adverse comments by December 15, 2020.

If the EPA receives relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public the rule will not take effect with respect to the updated NESHAPs delegation. We will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of a relevant adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

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

This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state request to receive delegation of certain Federal standards and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing delegation submissions, EPA's role is to approve submissions, provided that they meet the criteria of the Clean Air Act. This action is not subject to the 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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 16, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR parts 60, 61, and 63 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2019-0549 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 16, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2019-0549, by one of the following methods.

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

In the Federal Register of October 28, 2019 (84 FR 57685) (FRL-10001-11), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11342) filed by SciReg Inc., on behalf of Solvay USA, Inc., 12733 Director's Loop, Woodbridge, VA 22192. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt; CAS Reg. No. 1802325-28-5. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency received one comment. The commenter expressed concern for ensuring that the pesticide use on crops does not cause negative health and environmental impact. Although the Agency recognizes that some individuals believe that pesticides should be limited on agricultural crops, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that this exemption from the requirement of a tolerance is safe. The commenter provided no information to indicate that the exemption was not safe.

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

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition at least two of the atomic elements carbon, hydrogen, nitrogen, oxygen, silicon, and sulfur.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as listed in 40 CFR 723.250(d)(6).

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

The polymer's number average MW of 6,000 is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.

Thus, 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt.

For the purposes of assessing potential exposure under this exemption, EPA considered that 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt is 6,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt to share a common mechanism of toxicity with any other substances, and 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

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

The Codex has not established an MRL for 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt.

Accordingly, EPA finds that exempting residues of 2-propenoic acid, 2-methyl-, polymer with 2,5-furandione and 2,4,4-trimethyl-1-pentene, potassium salt from the requirement of a tolerance will be safe.

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

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

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

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

Pursuant to the CRA (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA amends 40 CFR chapter I as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0312 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 16, 2020. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0312, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of September 15, 2017 (82 FR 43352) (FRL-9965-43), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11046) by the Spring Trading Company on behalf of Oxiteno USA, LLC, 9801 Bay Area Blvd., Pasadena, TX 77507. The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of 1-octanamine, N,N-dimethyl-, N-oxide (CAS Reg. No. 2605-78-9) when used as an inert ingredient (surfactant) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest. That document referenced a summary of the petition prepared by the Spring Trading Company on behalf of Oxiteno USA, LLC, the petitioner, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit V.C.

Based upon review of the data supporting the petition, EPA is establishing the requested exemption but with a limitation that the end-use product not contain 1-octanamine, N,N- dimethyl-, N-oxide in a concentration that exceeds 15% by weight. The reasons for this limitation are explained in the Agency's risk assessment which can be found at http://www.regulations.gov in document “IN-11046; 1-Octanamine, N,N-dimethyl-, N-oxide—Human Health Risk and Ecological Effects Assessment of Request for Food Use Inert Ingredient in docket ID number EPA-HQ-OPP-2017-0312.”

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

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

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 1-octanamine, N,N-dimethyl-, N-oxide including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with 1-octanamine, N,N-dimethyl-, N-oxide follows.

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

Specific information on the studies received and the nature of the adverse effects caused by 1-octanamine, N,N-dimethyl-, N-oxide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document entitled “IN-11046; 1-Octanamine, N,N-dimethyl-, N-oxide—Human Health Risk and Ecological Effects Assessment of Request for Food Use Inert Ingredient” at pages 3-5 in docket ID number EPA-HQ-OPP-2017-0312.

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

The toxicity endpoint selected for use in risk assessment is taken from the 28-day, repeat-dose toxicity study of 1-octanamine, N,N-dimethyl-, N-oxide in which a NOAEL was established at 150 mg/kg/day based on decreases in body weight, food consumption, mortality, clinical signs of toxicity, decreased motor activity, histopathology of the kidney and spleen, and effects on hematology and clinical chemistry parameters seen at 750 mg/kg/day. The uncertainty factors include 10X for interspecies extrapolation, 10X for intraspecies variation, and a 1X for the FQPA Safety Factor, bringing the combined uncertainty factor to 100. The resultant chronic Population Adjusted Dose (cPAD) is 1.5 mg/kg/day.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to 1-octanamine, N,N-dimethyl-, N-oxide, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from 1- octanamine, N,N-dimethyl-, N-oxide in food as follows:

Because no acute endpoint of concern was identified, a quantitative acute dietary exposure assessment is unnecessary. In conducting the chronic dietary exposure assessment using the Dietary Exposure Evaluation Model (DEEM)—FCID TM , Version 3.16, EPA used food consumption information from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. Dietary exposure is estimated using the Agency's Dietary Exposure Estimate Model (DEEM). The Inert Dietary Exposure Evaluation Model (I-DEEM) is a highly conservative model with the assumption that the residue level of the inert ingredient would be no higher than the highest tolerance for a given commodity. Implicit in this assumption is that there would be similar rates of degradation between the active and inert ingredient (if any) and that the concentration of inert ingredient in the scenarios leading to these highest of tolerances would be no higher than the concentration of the active ingredient. The model assumes 100 percent crop treated (PCT) for all crops and that every food eaten by a person each day has tolerance-level residues. In the case of1-octanamine, N,N-dimethyl-, N-oxide, a 15% by weight limitation in formulation was incorporated into the model.

A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

2. Dietary exposure from drinking water. For the purpose of the screening-level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for 1-octanamine, N,N-dimethyl-, N-oxide, a conservative drinking water concentration value of 100 ppb based on screening-level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

1-Octanamine, N,N-dimethyl-, N-oxide may be used as an inert ingredient in pesticide products that are registered for specific uses that may result in residential exposure, such as pesticides used in and around the home, and in non-pesticide products such as household products, personal care products and cosmetics. In a conservative effort to assess residential exposure, EPA has conducted a screening-level assessment using high-end residential exposure scenarios, such as pesticides used on lawns/turn, as antimicrobial cleaning products and in pet spot on applications.

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

EPA has not found 1-octanamine, N,N-dimethyl-, N-oxide to share a common mechanism of toxicity with any other substances, and 1-octanamine, N,N-dimethyl-, N-oxide does do not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 1-octanamine, N,N-dimethyl-, N-oxide does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

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

2. Prenatal and postnatal sensitivity. No evidence of increased quantitative or qualitative susceptibility was seen in developmental toxicity studies in rats and rabbits with 1-octanamine, N,N-dimethyl-, N-oxide. No adverse effects on reproductive parameters were observed in a 2-generation rat reproductive study.

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

i. The database for 1-octanamine, N,N-dimethyl-, N-oxide is considered adequate for FQPA assessment.

ii. A combined repeated dose toxicity study with a reproduction/developmental toxicity screening test showed no effect on reproductive parameters of fertility in the absence of maternal toxicity.

iii. Although no neurotoxicity studies are available, no clinical signs of neurotoxicity were observed. Therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iv. Immunotoxicity studies were not available. However, there were no test-item related signs of immunotoxicity noted in the repeat-dose study.

v. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and incorporated a limitation of 15% by weight in pesticide formulation. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to 1-octanamine, N,N-dimethyl-, N-oxide in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children. These assessments will not underestimate the exposure and risks posed by 1-octanamine, N,N-dimethyl-, N-oxide.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, no adverse effects were attributed to a single exposure of the acute dietary exposure from food and water to -octanamine, N,N-dimethyl-, N-oxide. Therefore, 1-octanamine, N,N-dimethyl-, N-oxide is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to 1-octanamine, N,N-dimethyl-, N-oxide, from food and water will utilize 14.1% of the cPAD for all infants less than 1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of 1-octanamine, N,N-dimethyl-, N-oxide is not expected.

3. Short-term risk. Short-term aggregate exposure considers short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). 1-Octanamine, N,N-dimethyl-, N-oxide is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to 1-octanamine, N,N-dimethyl-, N-oxide.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1978 for adults and 589 for children. Because EPA's level of concern for 1-octanamine, N,N-dimethyl-, N-oxide is an MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for 1-octanamine, N,N-dimethyl-, N-oxide.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in a rodent carcinogenicity study, 1-octanamine, N,N-dimethyl-, N-oxide is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to 1-octanamine, N,N-dimethyl-, N-oxide residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of 1-octanamine, N,N-dimethyl-, N-oxide in or on any food commodities. EPA is establishing limitations on the amount of 1-octanamine, N,N-dimethyl-, N-oxide that may be used in pesticide formulations applied pre- and post- harvest. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 15% by weight of 1-octanamine, N,N-dimethyl-, N-oxide in the final pesticide formulation.

Two comments were received concerning the safety and impact of pesticides on food and human health. Although the Agency recognizes that some individuals believe that no residue of pesticides should be allowed in or on food, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) authorizes the establishment of pesticide tolerances or exemptions where the Agency determines that tolerance or exemption meets the safety standard imposed by the statute. EPA has sufficient data to support a safety determination for the exemption from the requirement of a tolerance for 1-octanamine, N,N-dimethyl-, N-oxide. The commenters have provided no additional information supporting a determination that the exemption is not safe.

Based upon an evaluation of the data included in the petition, EPA is establishing an exemption from the requirement of a tolerance for residues of 1-octanamine, N,N-dimethyl-, N-oxide when used in pesticide formulations as an inert ingredient (surfactant), not to exceed 15% by weight of the formulation, instead of the unlimited use requested. Because unlimited use of 1-Octanamine, N,N-dimethyl-, N-oxide resulted in aggregate risks of concern, EPA is establishing a 15% limitation in formulation to support the safety finding of these tolerance exemptions. The concern for unlimited use of theses inert ingredients is documented on page 4 of the Agency's risk assessment documents “IN-11046; 1-Octanamine, N,N-dimethyl-, N-oxide—Human Health Risk and Ecological Effects Assessment of Request for Food Use Inert Ingredient” which can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2017-0312.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for 1-octanamine, N,N-dimethyl-, N-oxide when used as an inert ingredient (surfactant) limited to 15% by weight in pesticide formulations applied to growing crops or raw agricultural commodities after harvest.

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

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

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

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

Pursuant to the CRA (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, the EPA amends 40 CFR chapter I as follows:

Section 9004 of RCRA, 42 U.S.C. 6991c, authorizes the EPA to approve state UST programs to operate in lieu of the Federal UST program. Pursuant to RCRA section 9004(b), approval may be granted if the state program provides for adequate enforcement of compliance with the UST standards of RCRA section 9004(a); is “no less stringent” than the Federal program for the seven elements set forth at RCRA section 9004(a)(1) through (7); and includes the notification requirements of RCRA section 9004(a)(8). Note that RCRA sections 9005 (on information-gathering) and 9006 (on Federal enforcement) by their terms apply even in states with programs approved by the EPA under RCRA section 9004. Thus, the Agency retains its authority under RCRA sections 9005 and 9006, and other applicable statutory and regulatory provisions, to undertake inspections and enforcement actions in approved states. With respect to such an enforcement action, the Agency will rely on Federal sanctions, Federal inspection authorities, and Federal procedures, rather than the State analogues to these provisions.

The Kentucky Department for Environmental Protection (KYDEP) within the Energy and Environment Cabinet is the lead implementing agency for the UST Program in the Commonwealth. The most recent amendments to the State UST regulations became effective April 5, 2019, and include revisions which correspond to the EPA final rule published on July 15, 2015 (80 FR 41566), which revised the 1988 UST regulations and the 1988 state program approval (SPA) regulations. The KYDEP has broad statutory and regulatory authority to regulate the installation, operation, maintenance, and closure of USTs, as well as UST releases, under Title XVIII of the Kentucky Revised Statutes (KRS), Chapter 224, Subchapter 60, and Title 401 of the Kentucky Administrative Regulations (KAR), Chapter 42 (2019).

In accordance with 40 CFR 281.50, the Commonwealth submitted a State Application to the EPA on October 7, 2019. On March 13, 2020, the EPA notified the Commonwealth that the State Application was complete. On July 1, 2020 (85 FR 39517), the EPA published a tentative determination announcing its intent to grant the Commonwealth final approval of its UST Program. Along with the tentative determination, the EPA announced the opportunity for public comment, and provided notice that a public hearing would be held if significant public interest was expressed. Because the EPA did not receive any comments or requests for a public hearing, no public hearing was held. In accordance with the requirements of 40 CFR 281.50(b), the State previously provided an opportunity for public notice and comment during the development of its UST Program regulations.

The EPA specifies the requirements that state UST programs must meet for approval under section 9004 of RCRA, and the procedures for approving, revising and withdrawing approval of state programs, in 40 CFR part 281. In order to be approved, in accordance with section 9004 of RCRA, each state program application must meet the general requirements in 40 CFR part 281, subpart A, and the specific requirements in 40 CFR part 281, subpart B (Components of a Program Application), subpart C (Criteria for No Less Stringent), and subpart D (Adequate Enforcement of Compliance).

As more fully described below, the EPA has determined that the Commonwealth's UST Program satisfies the general and specific requirements for approval, is no less stringent than the Federal UST program, and will provide for adequate enforcement of compliance as required by 40 CFR part 281, subparts A, C, and D, after this approval. Following approval, the KYDEP will continue to be the lead implementing agency for the UST Program in the Commonwealth, and will regulate the installation, operation, maintenance and closure of USTs, as well as releases from USTs.

As required by 40 CFR part 281, subpart B, the State Application contains the following: a transmittal letter from the Governor requesting approval; a description of the program and operating procedures; a demonstration of the State's procedures to ensure adequate enforcement; a Memorandum of Agreement outlining the roles and responsibilities of the EPA and the implementing agency; a General Counsel Statement; and copies of all relevant State statutes and regulations. As part of the State Application, the Kentucky Energy and Environment Cabinet General Counsel, signing in lieu of the State Attorney General pursuant to 40 CFR 281.24, 1 has certified that the State regulations provide for adequate enforcement of compliance and meet the no less stringent criteria in 40 CFR 281, and the EPA is relying on this certification in approving the State Program.

The State Application demonstrates that the KYDEP has adequate authorities for enforcement of compliance, as described at 40 CFR part 281, subpart D (281.40-43), including requirements for the UST compliance monitoring program; requirements for the UST compliance enforcement program; requirements for public participation; and the sharing of information.

As part of the State Application, the Commonwealth has identified the following specific statutory and regulatory compliance monitoring program authorities, required pursuant to 40 CFR 281.40: KRS 224.1-400, KRS 224.10-100, KRS 224.60-105, KRS 224.60-155, and 401 KAR 42:020.

As part of the State Application, the Commonwealth has identified the following specific statutory and regulatory compliance enforcement program authorities, required pursuant to 40 CFR 281.41: KRS 224.1-400, KRS 224.10-410, KRS 224.10-420, KRS 224.10-440, KRS 224.60-155, KRS 224.99-010, 401 KAR 42:020, 400 KAR 1:090, and 400 KAR 1:100.

As part of the State Application, the Commonwealth has identified the following specific authorities enabling public participation in the State enforcement process, required pursuant to 40 CFR 281.42: KRS 224.10-420 and 400 KAR 1:090 Section 14. Further, through a Memorandum of Agreement between the Commonwealth and the EPA, effective September 16, 2020, the State maintains procedures for receiving and ensuring proper consideration of information about violations submitted by the public, and the Commonwealth will not oppose citizen intervention when permissive intervention is allowed by statute, rule or regulation. As required pursuant to 40 CFR 281.43, through the Memorandum of Agreement between the State and the EPA, the State agrees to furnish the EPA, upon request, any information in State files obtained or used in the administration of the State program. Therefore, the EPA is approving the Commonwealth to operate the State UST Program as described in the State Application. The EPA is hereby concluding that the State Application for the Commonwealth's UST Program approval meets all of the statutory and regulatory requirements established by Subtitle I of RCRA. Accordingly, the Commonwealth's UST Program will operate in lieu of the Federal program. The Commonwealth will have primary enforcement authority and responsibility for its State UST Program. This action does not impose additional requirements on the regulated community because the regulations being approved by this rule are already in effect in the Commonwealth, and are not changed by this determination. This action merely approves the existing State regulations as meeting the Federal requirements, thus rendering them federally enforceable. This final determination to approve the State UST Program applies to all areas within the State. Though the Commonwealth has primary enforcement responsibility, the EPA retains the right to conduct inspections under section 9005 of RCRA and to take enforcement actions under section 9006 of RCRA.

States may enact laws that are more stringent than their Federal counterparts. See RCRA section 9008, 42 U.S.C. 6991g. When an approved state program includes requirements that are considered more stringent than those required by Federal law, the more stringent requirements become part of the federally approved program in accordance with 40 CFR 281.12(a)(3)(i). The EPA has determined that some of the Commonwealth's regulations are considered more stringent than the Federal program, and upon approval, they will become part of the federally approved State UST Program and therefore federally enforceable. In addition, states may enact laws which have a greater scope of coverage than the Federal program. These provisions are considered broader in scope and are not part of the federally approved program and are therefore not federally enforceable. See 40 CFR 281.12(a)(3). Although these requirements are enforceable by the Commonwealth as a matter of State law, they are not RCRA requirements. The statutory and regulatory provisions the Agency has decided to approve are found generally at KRS 224.60-100 et seq. and 401 KAR 42:005 et seq. However, the EPA has determined that the following State UST Program requirements are broader in scope than the Federal program. 2

• KRS 224.60-130 to 140, insofar as these relate to UST registration requirements, the establishment of a Petroleum Environmental Assurance Fee, and the administration of the State Petroleum Storage Tank Environmental Assurance Fund.

• KRS 224.60-150, insofar as it relates to the authority to levy and collect an annual fee of thirty (30) dollars per tank from owners or operators of USTs for the purpose of funding the administration of the UST Program.

• 401 KAR 42:020, section 2, insofar as it relates to the establishment of UST registration requirements and the collection of annual fees.

• 401 KAR 42:250, insofar as it relates to eligibility requirements and administrative procedures for the Petroleum Storage Tank Environmental Assurance Fund.

• 401 KAR 42:330, insofar as it relates to the eligibility requirements and rates for reimbursement from the Small Owners Tank Removal Account.

• 401 KAR 42:060, insofar as it relates to the UST Corrective Action Manual for site investigations and corrective action activities for releases from UST systems.

This final action merely approves Kentucky's UST Program requirements pursuant to RCRA section 9004 and does not impose additional requirements other than those imposed by State law. For further information on how this action complies with applicable executive orders and statutory provisions, please see the EPA's tentative determination published in the July 1, 2020 Federal Register at 85 FR 29517. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final action will be effective September 16, 2020.

EPA issued a final rule (referred to as SNUR Batch 19-5.B) in the August 3, 2020 Federal Register (85 FR 46550) (FRL-10009-78) on significant new uses for chemical substances that were the subject of PMNs. EPA subsequently determined that the final rule incorrectly identified the CASRN associated with the chemical substance silsesquioxanes, 3-(dimethyloctadecylammonio)propyl Me Pr, polymers with silicic acid (H4SiO4) tetra-Et ester, (2-hydroxyethoxy)- and methoxy-terminated, chlorides (PMN P-19-24) codified at 40 CFR 721.11380. This action corrects the error as follows:

• Paragraph (a)(1) of the SNUR at 40 CFR 721.11380 is corrected to identify the CASRN for the substance that was the subject of PMN P-19-24 as 2231249-14-0.

Section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment. Correcting the CASRN specified in the August 3, 2020 final rule is necessary for the proper identification of the chemical substance which is the subject of the SNUR at 40 CFR 721.11380. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

No. For a detailed discussion concerning the statutory and Executive Order review, refer to Unit XII. of the August 3, 2020 final rule.

Pursuant to the CRA (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, 40 CFR part 721 is corrected as follows:

Under 46 CFR 11.201(c)(2), an applicant for a national officer endorsement on a Merchant Mariner Credential (MMC) must have at least 3 months of required service on vessels of appropriate tonnage or horsepower within the 3 years immediately preceding the date of application. Section 305 of the Howard Coble Coast Guard and Maritime Transportation Act of 2014  1 amended 46 U.S.C. 7101 to specifically authorize the Coast Guard to extend the period from 3 years to 7 years for individuals whose 3 months of qualifying sea service was aboard vessels of the uniformed services. Such individuals must also satisfy all other requirements for a national officer endorsement on an MMC. In this final rule, consistent with the statutory authorization, we establish in regulation a 7-year period within which the attainment of 3 months of qualifying sea service aboard vessels of the uniformed services can be used to satisfy the requirement for recent sea service to qualify for an MMC with a national officer endorsement. 2 This regulatory change affects only 46 CFR part 11, “Requirements for officer endorsements,” and, specifically, only 46 CFR 11.201(c)(2).

In accordance with 5 U.S.C. 553(d)(1) and (3), this rule will become effective upon the date of publication in the Federal Register . Under 5 U.S.C. 553(d)(1), an agency is permitted to make “a substantive rule which grants or recognizes an exemption or relieves a restriction . . .” to become immediately effective. This rule relieves a restriction by extending the period, from 3 years to 7 years, in which sea service aboard vessels of the uniformed services can be used to satisfy the requirement for recent sea service to qualify for a Merchant Mariner Credential with a national officer endorsement.

Individuals serving on vessels of the uniformed services represent a population who may qualify for an MMC. When these individuals spend the final years of their careers assigned to shoreside units, the requirement in 46 CFR 11.201(c)(2) to have at least 3 months of qualifying sea service within 3 years of application for an officer endorsement poses an obstacle to meeting the requirement for recent sea service. This rule will update the recent sea service requirements for a person to qualify for a national officer endorsement based on sea service aboard vessels of the uniformed services.

On December 18, 2014, Congress amended 46 U.S.C. 7101 by adding paragraph (j), which authorized the Coast Guard to extend the period from 3 years to 7 years for individuals whose 3 months of qualifying sea service was aboard vessels of the uniformed services. Subsequent to enactment of 46 U.S.C. 7101(j)(1), the Coast Guard issued CG-CVC Policy Letter 15-03, “Crediting Recent Service of Uniformed Service Personnel,”  3 on October 16, 2015, to implement 46 U.S.C. 7101(j)(1) until a rulemaking could be completed.

In the 2019 Notice of proposed rulemaking (NPRM), 4 the Coast Guard requested comments on our proposal to extend, from 3 years to 7 years, the period for qualifying sea service that is the subject of this final rule. The Coast Guard received no comments on that proposal. Accordingly, the Coast Guard has made no changes from the proposed rule in response to public comment.

In the same NPRM, the Coast Guard asked for public input on two related questions that were not part of the proposal. The Coast Guard received input from two commenters in response to these questions. The questions were:

(1) Should the period for “recent” service be extended to 7 years for all national officer endorsements?; and

(2) Is it necessary to have a requirement for recent sea service for an original, renewal, or raise of grade of an MMC with a national officer endorsement?

The responses to these questions do not impact this rulemaking, but may be used to inform future Coast Guard decisions on regulatory initiatives regarding the requirement for recent sea service. We summarize the comments here.

The Coast Guard asked if the period for recent sea service should be extended to 7 years for all national officer endorsements. The Coast Guard received input from two commenters in response to this question. The first commenter does not support extending the period of recent sea service to 7 years for all national officer endorsements. This commenter discusses the rapid changes in technology that make it critical for mariners to have recent service in order to maintain familiarization with current equipment, associated practices, and safe shipboard operations. Further, this commenter notes the importance of recent service on vessels of appropriate horsepower and tonnage so that mariners will have experience on vessels with handling characteristics, navigation equipment, and firefighting equipment relevant to the endorsement they are seeking.

The second commenter supports extending to 7 years the period of recent service for all original national officer endorsements, not just those for uniformed service members. This commenter believes extending the period within which recent service can be obtained to all mariners would create an even standard regardless of how they obtained their qualifying sea service, and would provide an equitable option within the industry without a negative impact to safety. This same commenter does not support extending the period for required service to 7 years in the case of renewing an MMC officer endorsement or raising the grade of an existing officer endorsement.

The Coast Guard also asked if a recent sea service requirement is necessary for an original, renewal, or raise of grade of an MMC with a national officer endorsement. The Coast Guard received input from two commenters in response to this question. Both commenters support the requirement for recent sea service to obtain a national officer endorsement. The commenters emphasized the importance of ensuring the competency of mariners who make operational decisions that could impact the safety of life, cargo, and the marine environment. The second commenter supported the recent sea service requirement as a means of ensuring competency within the maritime workforce, believing it is important for mariners to have experience on the job before serving in positions of authority where safety could be adversely affected by a lack of experience. With respect to renewals, both commenters believe the existing regulatory requirements for renewing an officer endorsement provide reasonable options for mariners who do not have recent sea service to renew a credential and return to employment within the industry. See 46 CFR 10.227(e) for the available options a mariner may use, other than recent sea service, to meet the professional requirements for renewal. The commenters also state that the renewal options allowed under 46 CFR 10.227(e) should not be extended for raising the grade of an officer endorsement due to the nature of taking on increased responsibility and, therefore, having an increased role in ensuring the safety of a vessel.

The first commenter also expressed concern over the training of Coast Guard personnel evaluating MMC applications, specifically with regard to the tonnage and horsepower portion of the recent service requirements. However, the training of Coast Guard personnel evaluating MMC applications is outside the scope of this rulemaking.

As specifically authorized by 46 U.S.C. 7101(j)(1), and consistent with existing policy, the Coast Guard is amending 46 CFR 11.201(c)(2) to allow individuals who have attained qualifying sea service aboard vessels of the uniformed services within 7 years preceding the date of application for a national officer endorsement to use this service to satisfy the requirement for recent sea service. The Coast Guard is also amending the regulation to allow applicants to use a combination of sea service obtained on vessels of appropriate tonnage or horsepower within 3 years preceding the date of application with sea service obtained on vessels of the uniformed services within 7 years preceding the date of application to meet the requirement for 3 months of recent sea service. Allowing for a combination of service provides maximum flexibility for applicants in meeting the service requirements for a for a national officer endorsement. This rule uses, without change, the regulatory text proposed in the NPRM.

We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive Orders.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The OMB has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. Because this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See the OMB Memorandum titled “Guidance Implementing Executive Order 13771, titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017). A regulatory analysis (RA) follows.

We did not receive public comments regarding the regulatory analysis of the proposed rule; therefore, we adopt the preliminary regulatory analysis of the proposed rule as final. However, we have updated this analysis using 2018 wage rate estimates, which are reflected in the revised analysis below.

This final rule will revise existing regulations related to the requirement for recent sea service to qualify for an MMC with a national officer endorsement. Specifically, it will amend 46 CFR 11.201(c)(2) by establishing a 7-year period within which the attainment of 3 months of qualifying sea service aboard vessels of the uniformed services would satisfy the requirement for recent sea service. This change will apply to original and raise of grade national officer endorsement applicants who have served on vessels of the uniformed services. Under 10 U.S.C. 101(a)(5), “uniformed services” means the armed forces, the commissioned corps of the National Oceanic and Atmospheric Administration (NOAA), and the commissioned corps of the Public Health Service (PHS). To estimate the impact of the increased timeframe to attain the 3 months of qualifying sea service that is necessary to satisfy the requirement for recent sea service, we examined data on officer endorsement applications provided by the National Maritime Center (NMC).

This final rule intends to update the regulatory requirements with the service standard authorized under 46 U.S.C 7101(j)(I). This service standard was implemented by the Coast Guard through CG-CVC Policy Letter 15-03 on an interim basis until a rulemaking could be completed.

CG-CVC Policy Letter 15-03 intended to increase the number of qualified applicants for a national officer endorsement, which will subsequently increase the pool of credentialed mariners supporting U.S. commerce and the growth of the marine transportation system. However, after examining the existing data, it was not possible to estimate the extent of any increases. Information provided by the NMC from the Merchant Mariner Licensing and Documentation (MMLD) system was used to estimate the number of mariners that may be affected by this rule. The data available from 2016-2018 indicates that applicants for an original endorsement or raise of grade to an existing endorsement may be able to utilize previous sea service on vessels of the uniformed services to meet the professional requirements for a national officer endorsement. Meeting the requirements for an original officer endorsement may allow a mariner to be employed at a higher initial wage rate. We present an analysis of the potential positive distributional impacts (qualitative) on mariners in the benefits section.

This final rule will increase the period from 3 years to 7 years within which qualifying sea service aboard vessels of the uniformed services can be used to satisfy the requirement for recent sea service to qualify for an MMC with a national officer endorsement. Although this final rule will provide increased flexibility to applicants for an MMC, the Coast Guard cannot conclusively determine how many individuals will take advantage of this flexibility or estimate the impact of increasing the period from 3 years to 7 years on the number of total qualified merchant mariners—therefore, we did not estimate costs. Although the annual average number of original and raise of grade national officer endorsements is decreasing, the number of individuals using prior service on vessels of the uniformed services is increasing based on data between 2016-2018. The Coast Guard did not receive any public comments to supplement this analysis and no additional data has become available. Therefore, we are unable to determine the source of the increase in national officer endorsements issued with sea service on vessels of the uniformed services (see table 1).

Section 7101(j)(1) of 46 U.S.C. applies to applicants that have 3 months of qualifying service on vessels of the uniformed services within the 7 years immediately preceding the date of application. The pool of applicants who will be affected by this final rule are current and former members of the U.S. armed forces, 5 the commissioned corps of NOAA and PHS, and civilians who attained qualifying sea service aboard vessels of the uniformed services within 7 years preceding the date of application for a national officer endorsement. There are approximately 1.34 million military personnel serving in the U.S. armed forces, 683,063 personnel serving in the Reserve, 6 and approximately 727,000 civilians employed by the uniformed services. 7 8 9 To estimate the number of people potentially affected by this final rule, we examined data provided by the NMC. The NMC evaluates MMC applications and issues credentials to qualified mariners. As noted in section IV, on December 18, 2014, Congress amended 46 U.S.C. 7101 to authorize the Coast Guard to extend the period by which a mariner can obtain 3 months of qualifying sea service aboard vessels of the uniformed services from 3 years to 7 years to satisfy the requirement for recent sea service. Following that, in October 2015, CG-CVC Policy Letter 15-03 was published to implement 46 U.S.C. 7101(j)(1) on an interim basis until the Coast Guard could complete a rulemaking. This analysis utilized Coast Guard data from the MMLD database on all original and raise of grade national officer endorsements issued beginning in 2010, and original and raise of grade national officer endorsements issued utilizing prior sea service on vessels of the uniformed services beginning in 2016. In 2016, the NMC began identifying applications utilizing prior service aboard vessels of the uniformed services to meet the requirement for recent sea service under 46 CFR 11.201(c)(2). The data spans from January 2016 through December 2018 to include 36 months (unless otherwise noted). Therefore, given the data availability, we use the statistical baseline of 2016 for this analysis. The observations are as follows:

(1) The annual average number of original and raise of grade national officer endorsements issued is 7,203 (as observed from 2010-2018). In Figure 1, we show the results of our observation of historical data indicating that the number of annual officer endorsements issued from 2010-2018 is on a downward trend.

(2) In 2016, there were 7,165 original and raise of grade national officer endorsements issued, of which 356 used prior service on vessels of the uniformed services to meet the requirements for the endorsement. 10 This is equivalent to approximately 5.0 percent (356 ÷ 7,165). In 2017, there were 6,330 original and raise of grade national officer endorsements issued, of which 495 used prior service on vessels of the uniformed services to meet the requirements for the endorsement. This is equivalent to approximately 7.8 percent (495 ÷ 6,330). In 2018, there were 5,748 original and raise of grade national officer endorsements issued, of which 501 used prior service on vessels of the uniformed services to meet the requirements for the endorsement. This is equivalent to approximately 8.7 percent (501 ÷ 5,748).