                                                                      6560-50-P
                        ENVIRONMENTAL PROTECTION AGENCY
                                40 CFR Part 52
             [EPA-R08-OAR-2019-0642; FRL-______________-Region 8]
Air Quality State Implementation Plans; Approval and Promulgation of Implementation Plans; South Dakota; Infrastructure Requirements for the 2015 Ozone National Ambient Air Quality Standards; Revisions to Administrative Rules

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: The Environmental Protection Agency (EPA) is approving the State of South Dakota's January 15, 2020 State Implementation Plan (SIP) submission that addresses infrastructure requirements for the 2015 ozone National Ambient Air Quality Standards (NAAQS). Additionally, in this action, we are approving a SIP revision submitted by the State of South Dakota on January 3, 2020 that revises the Administrative Rules of South Dakota (ARSD), Air Pollution Control Program, updating the date of incorporation by reference of federal rules in ARSD chapters pertaining to definitions, ambient air quality, air quality episodes, prevention of significant deterioration (PSD), new source review, performance testing, control of visible emissions, continuous emission monitoring systems, State facilities in Rapid City area, construction permits and regional haze program administrative rules. The EPA is taking this action pursuant to the Clean Air Act (CAA).
DATES: This rule is effective on [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2019-0643. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.
FOR FURTHER INFORMATION CONTACT: Kate Gregory,<PHONE_NUMBER><EMAIL_ADDRESS>Mail can be directed to the Air and Radiation Division, U.S. EPA, Region 8, Mail-code 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
SUPPLEMENTARY INFORMATION: Throughout this document "we," "us," and "our" means the EPA.
I. 	Background
      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 (73 FR 16436). More recently, on October 1, 2015, the EPA promulgated and revised the NAAQS for ozone, further strengthening the primary and secondary 8-hour standards to 0.070 ppm (80 FR 65292). 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 May 19, 2020 (85 FR 29882) for South Dakota's infrastructure SIP revisions, submitted to the EPA on January 15, 2020, and revisions to the Administrative Rules of South Dakota (ARSD) submitted to the EPA on January 3, 2020.
II. 	Response to Comments
      Comments on our NPRM were due on or before June 18, 2020. The EPA received four comments. The first comment was supportive of the proposed action. All other comments are summarized and responded to below.
      Comments: One commenter contends that our May 19, 2020 South Dakota infrastructure SIP NPRM is a "blatantly illegal rule" which should be retracted and disapproved because the EPA has ignored "the courts," specifically the May 19, 2020 decision of the D.C. Circuit Court of Appeals in Maryland v. EPA. The commenter contests the EPA's use of 2023 as the analytic year for South Dakota's "Good Neighbor" obligations, which was based on our interpretation of the relevant holding in Wisconsin v. EPA regarding the appropriate timeframes for analysis and implementation of Good Neighbor obligations. Commenter maintains that the 2021 Marginal attainment year for the 2015 ozone NAAQS is the correct analytical year per the Maryland decision.
      Similarly, another commenter alleges that the South Dakota infrastructure SIP cannot be approved "as it relates to the good neighbor provision because it relies on the flawed modeling," and thus should be disapproved because the State relied on the wrong analysis. The commenter states that, "courts have opined several times that 2023 is the improper year to evaluate for downwind contributions" and the EPA must disapprove South Dakota's SIP submission due to 2021 being the correct analytical year to evaluate for Good Neighbor downwind contributions.
	The commenter further argues that the Good Neighbor provisions require states to perform the modeling analysis themselves, and thus because the EPA cannot perform the analysis for the State, that the EPA consequently cannot supplement South Dakota's infrastructure SIP submission with "new manufactured" modeling to support approval of the proposal. The commenter also asserts that if the EPA were to "fix" the modeling for the State, EPA must then disapprove the SIP submission and promulgate a Federal Implementation Plan (FIP).
      Response: The commenters are referring to recent D.C. Circuit court decisions addressing, in part, the issue of the relevant analytic year for the purposes of evaluating interstate ozone transport under the good neighbor provision, CAA section 110(a)(2)(D)(i)(I). On September 13, 2019, the D.C. Circuit issued a decision in Wisconsin v. EPA, remanding the Cross-State Air Pollution Rule ("CSAPR") Update to the extent that Good Neighbor FIPs in the CSAPR Update did not fully eliminate upwind states' "significant contribution" by the next applicable attainment date by which downwind states must attain the 2008 ozone NAAQS. See 938 F.3d at 313. The EPA had interpreted that holding as limited to the attainment dates for Moderate or higher classifications under CAA section 181 on the basis that Marginal nonattainment areas have reduced planning requirements and other considerations. See, e.g., 85 FR 29882, 29888-89 (May 19, 2020).
      On May 19, 2020, the D.C. Circuit in Maryland v. EPA, applying the Wisconsin decision, held that the EPA must assess air quality at the next downwind attainment date, including Marginal area attainment dates, in evaluating the basis for EPA's denial of a petition under CAA section 126(b). 958 F.3d at 1203-04. The NPRM proposing approval of South Dakota's good neighbor SIP was signed prior to the D.C. Circuit's decision in Maryland. In accordance with the Maryland decision, the Agency now, in taking this final action approving the South Dakota SIP, considers the Marginal area attainment date as the relevant analytic year for the purposes of determining whether sources in South Dakota will significantly contribute to downwind nonattainment or interfere with maintenance of the 2015 ozone NAAQS.
      EPA disagrees with the commenters' assertion that this change in analysis means EPA must disapprove South Dakota's SIP as it pertains to the Good Neighbor provision. As an initial matter, in regard to the comment that South Dakota must conduct its own air quality analysis, EPA has authority and indeed an obligation to take into consideration any relevant information in the record, including its own air quality modeling analysis, to determine how to act on a SIP. SIPs must be approved as a whole if they meet all of the requirements of the CAA. Here, the SIP submission, which had concluded that the state has no emissions reduction obligations on the basis that it is not linked to any nonattainment or maintenance receptors, remains approvable. Specifically, relying in part on the same data that informed its analysis of the year 2023, the EPA finds it reasonable to conclude that the state's impacts will not exceed a contribution threshold of 1 percent of the 2015 ozone NAAQS to any downwind nonattainment and maintenance sites in 2021. This finding is sufficient basis for EPA to conclude that South Dakota is not linked to any downwind receptors at step 2 of the four-step interstate transport framework.
      South Dakota's January 15, 2020 SIP submission includes an interstate ozone transport analysis for the Good Neighbor provision that focused on the modeling information provided in the EPA's March 2018 memorandum, which used 2023 as the analytic year (corresponding with the 2024 Moderate area attainment date). Based on the contribution modeling included in March 2018 memorandum, South Dakota's largest impact on any downwind nonattainment or maintenance receptors in 2023 are 0.07 parts per billion (ppb) and 0.05 ppb, respectively. These values are both far less than 1 percent of the 2015 ozone NAAQS (0.70 ppb). In response to these comments and the Maryland decision, using the best available information (including the same data that informed EPA's 2023 modeling) to analyze South Dakota's air quality impacts in the year 2021, the EPA finds it reasonable to conclude that South Dakota's impact on any potential downwind nonattainment and maintenance receptor in 2021 would be similar to those projected in 2023, and likewise well below 1 percent of the 2015 ozone NAAQS, as detailed in the methodology described below. Therefore, EPA finds that South Dakota's SIP revision satisfies the state's Good Neighbor obligations for the 2015 ozone NAAQS.
      The EPA's analysis of receptors and contributions in 2021 relies in part on the 2023 modeling used in the NPRM of this action, the results of which were included with the March 2018 memorandum. These data are the most recent published applicable modeling data available at the time of this action. To estimate South Dakota's maximum contribution to a nonattainment or maintenance receptor in 2021, EPA developed an interpolation analysis that evaluates available modeling, monitoring, and emissions data to assess air quality in this year. In general, this analysis utilizes 2019 measured design values and 2023 modeled design values to estimate design values at each monitoring site in 2021. Specifically, 2021 average and maximum design values were calculated by straight-line linear interpolation between the 2019 measured data and the 2023 modeled data. EPA believes that the linear interpolation methodology using measured data and 2023 model projections provides a technically sound basis for estimation of ozone design values in 2021 in part because of the relatively short two-year span between 2021 and 2023.
      Ozone contributions in 2021 were calculated by applying the following two-step process. First, the contributions (in ppb) from each state to each monitoring site in 2023 were converted to a fractional portion of the 2023 average design value by dividing the contribution by the 2023 design value. In the second step, the resulting contribution fractions were multiplied by the estimated 2021 average design value to produce 2021 contributions from each state to each monitoring site.[,]
      The 2021 design values and contributions were examined to determine if South Dakota contributes at or above the 1 percent of the 2015 ozone NAAQS threshold (0.70 ppb) to a downwind nonattainment or maintenance receptor. The data indicate that the highest contribution in 2021 from South Dakota to a downwind receptor is 0.14 ppb to the nonattainment receptor site 170310001 in Cook County, Illinois. Based on this analysis, EPA finds it reasonable to conclude that South Dakota will contribute less than 1 percent of the 2015 ozone NAAQS to any potential nonattainment or maintenance receptors in 2021.
      EPA also analyzed ozone precursor emissions trends in South Dakota to support the findings from the air quality analysis. In evaluating emissions trends, we focused on state-wide emissions of nitrogen oxides ("NOX") and volatile organic compounds ("VOCs") in South Dakota.[,]  Emissions from mobile sources, electric generating units ("EGUs"), industrial facilities, gasoline vapors, and chemical solvents are some of the major anthropogenic sources of ozone precursors. This evaluation looks at both past emissions trends, as well as projected trends.
      As shown in Table 1, between 2011 and 2017, annual total NOX and VOC emissions have declined, by 32 percent and 9 percent, respectively. The projected reductions are a result of "on the books" and "on the way" regulations that will continue to decrease NOX and VOC emissions in South Dakota, as indicated by our 2023 projected emissions. The large decrease in NOX emissions between 2017 emissions and projected 2023 emissions in South Dakota are primarily driven by reductions in emissions from onroad and nonroad vehicles. The downward trend in both VOC and NOX emissions from 2011 through 2017 is projected to continue at a steady rate out to 2023 and further into the future due to the replacement of higher emissions vehicles with lower emitting vehicles as a result of several mobile source control programs. This downward trend in emissions in South Dakota adds support to the air quality analysis presented above, which shows that the contributions from South Dakota to ozone in downwind states is estimated to continue to decline and remain below 1 percent of the NAAQS.
Table 1: Annual Emissions of NOX and VOC from Anthropogenic Emission Sources in South Dakota (tons)

                                     2011
                                     2012
                                     2013
                                     2014
                                     2015
                                     2016
                                     2017
                                Projected
2023
                                      NOX
                                    73,995
                                    71,438
                                    68,881
                                    66,323
                                    56,548
                                    52,664
                                    50,590
                                    34,096
                                      VOC
                                    66,430
                                    64,229
                                    62,028
                                    59,826
                                    58,873
                                    57,627
                                    56,528
                                    51,313

Thus, the air quality and emission analyses show that South Dakota is not projected to significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state in 2021. Therefore, EPA concludes that South Dakota's SIP revision satisfies the state's Good Neighbor obligations for the 2015 ozone NAAQS.
	Comment: The commenter asserts that the EPA shouldn't approve South Dakota's PSD provisions, because the Agency isn't required to do so under current rules. The commenter alleges that South Dakota's PSD program is under consideration at the time of the proposed action and there will be legal challenges regarding the approval of construction permits. Additionally, the commenter alleges that the EPA should `evaluate the strength of the S.D. permit program and its financial health'.
	Response: The EPA disagrees with the commenter on all points. The commenters' concerns are directed not to whether the existing SIP for South Dakota meets the relevant structural requirements for PSD programs, but rather to whether South Dakota is in fact faithfully implementing the existing provisions of its EPA-approved SIP. As the EPA has explained in other contexts, comments like these highlight an important distinction between whether an infrastructure SIP submission meets the applicable requirements of the CAA on its face (i.e., pertain to the facial sufficiency of the state's SIP), and whether a state is actually complying with the requirements of that SIP (i.e., pertain to adequacy of the state's implementation of the SIP).[ ]This comment implicates the question of the degree to which implementation concerns are relevant in the context of acting on a state's infrastructure SIP. In the context of an infrastructure SIP submission, the EPA interprets the requirements of section 110(a)(1) and (2) to require the Agency to focus on whether the state has a SIP that provides the requisite legal framework for implementation, maintenance and enforcement of the NAAQS. Generally speaking, the EPA's review of infrastructure SIP submissions is limited to whether, pursuant to CAA section 110(a)(2), the submission facially meets the requirements of the statutory criteria outlined therein, as applicable. In the case of section 110(a)(2)(C), for example, the statute requires a state to have a SIP that "include[s] a program to provide for . . . regulation of the modification and construction of any stationary sources . . . including a permit program as required in parts C and D of this subchapter." Thus, the EPA reviews a state's infrastructure SIP submission to assure that the structural elements of the state's PSD permitting program meets current CAA requirements for such programs.
      This is not to say that the EPA has no role in reviewing whether a state is faithfully implementing its approved SIP, or otherwise complying with the CAA and its implementing regulations. To the contrary, there are multiple statutory tools that the EPA can use to rectify problems with state implementation of its SIP, and the existence of these tools is consistent with the EPA's interpretation of section 110(a)(2) with respect to the Agency's role in reviewing infrastructure SIP submissions. For example, the CAA provides the EPA the authority to issue a SIP call, 42 U.S.C. 7410(k)(5); make a finding of failure to implement, id. §§ 7410(m), 7509(a)(4); and take measures to address specific permits pursuant to the EPA's case-by-case permitting oversight. See, e.g., § 7475(a)(2); 7477 . The appropriateness of employing these authorities depends on the nature and extent of the particular implementation problems at issue.
      With respect to South Dakota's infrastructure SIP submission, the EPA analyzed the submission itself, and evaluated the text of its provisions for compliance with the relevant elements of section 110(a)(2). In the proposal, the EPA explicitly evaluated the State's submission on a requirement-by-requirement basis and explained its views on the adequacy of the State's SIP for purposes of meeting the infrastructure SIP requirements.
      The EPA appreciates and takes seriously the commenters' assertions that the Agency should evaluate the strength of the South Dakota permit program in the SIP as approved by the EPA. However, because this action involves a review of the SIP itself, the EPA is not evaluating the merits of  assertions concerning implementation of the SIP in the context of this action. At this time, the EPA is finalizing its proposed approval of the infrastructure SIP submission that is currently before the Agency. If the EPA later determines that there are indeed concerns with respect to the implementation of the PSD program in South Dakota, the Agency intends to take appropriate action to ensure those problems are rectified using whatever statutory tools are appropriate to the implementation problem identified.
      With respect to the requirements related to PSD relevant to this approval of the infrastructure SIP submission, the EPA has determined that the State's SIP as previously approved, and as revised in this action, meets the relevant structural requirements for purposes of PSD in section 110(a)(2)(C), (D)(i)(II) element 3, and (J). Some examples of these basic structural SIP requirements include having state law authority to carry out the SIP, an overarching permitting program in place, and a properly deployed monitoring network. As to the PSD program in particular, these basic structural requirements include those provisions necessary for the permitting program to address all  regulated NSR pollutants and the proper sources. The EPA considers action on the infrastructure SIP submissions required by section 110(a)(1) and (2) to be an evaluation of a state's SIP to assure that it meets the basic structural requirements for the new or revised NAAQS, not a time to address all potential substantive defects in existing SIP provisions, or alleged defects in implementation of the SIP.
III. 	Final Action
      In this rulemaking, we are approving multiple elements of the infrastructure SIP requirements for the 2015 ozone NAAQS for South Dakota along with approving revisions to the Administrative Rules of South Dakota (ARSD), Air Pollution Control Program. The actions we are approving are contained in Table 1 below.
      The EPA is approving South Dakota's January 15, 2020 SIP submission that addresses infrastructure requirements for the 2015 ozone NAAQS SIP submission for the following CAA section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(I) Prongs 1 and 2, (D)(i)(II) Prong 3, (D)(i)(II) Prong 4, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Additionally, in this action, we are approving a SIP revision submitted by the State of South Dakota on January 3, 2020 that revises the Administrative Rules of South Dakota (ARSD), Air Pollution Control Program.
     Table 1: Infrastructure Elements that the EPA is Proposing to Act on

In the table below, the key is as follows:
A - Approve.
D - Disapprove.
NA - No Action.
2015 Ozone NAAQS Infrastructure SIP Elements: South Dakota

(A): Emission Limits and Other Control Measures
                                       A
(B): Ambient Air Quality Monitoring/Data System
                                       A
(C): Program for Enforcement of Control Measures
                                       A
(D)(i)(I): Prong 1 Interstate Transport - significant contribution
                                       A
(D)(i)(I): Prong 2 Interstate Transport - interference with maintenance
                                       A
(D)(i)(II): Prong 3 Interstate Transport - prevention of significant deterioration
                                       A
(D)(i)(II): Prong 4 Interstate Transport  -  visibility
                                       A
(D)(ii): Interstate and International Pollution Abatement
                                       A
(E): Adequate Resources
                                       A
(F): Stationary Source Monitoring System
                                       A
(G): Emergency Episodes
                                       A
(H): Future SIP revisions
                                       A
(J): Consultation with Government Officials, Public Notification, PSD and Visibility Protection
                                       A
(K): Air Quality and Modeling/Data
                                       A
(L): Permitting Fees
                                       A
(M): Consultation/Participation by Affected Local Entities

                                       A

South Dakota ARSD; revisions to South Dakota's Air Quality Program; chapters pertaining to definitions, ambient air quality, air quality episodes, prevention of significant deterioration, new source review, performance testing, control of visible emissions, continuous emission monitoring systems, state facilities in Rapid City area, construction permits and regional haze program administrative rules.
                                       A

IV. 	Incorporation by Reference
      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 we are approving a SIP revision submitted by the State of South Dakota on January 3, 2020 that revises the Administrative Rules of South Dakota (ARSD), Air Pollution Control Program, updating the date of incorporation by reference of federal rules in ARSD chapters pertaining to definitions, ambient air quality, air quality episodes, prevention of significant deterioration (PSD), new source review, performance testing, control of visible emissions, continuous emission monitoring systems, State facilities in Rapid City area, construction permits and regional haze program administrative rules as is described in the preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the person identified in the "For Further Information Contact" section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

V. 	Statutory and Executive Order Reviews
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 (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 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).
		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 [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 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)).

List of Subjects in 40 CFR Part 52
      Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Greenhouse gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Dated:	________________.					_______________________
								Gregory Sopkin,
								Regional Administrator,
								Region 8.

40 CFR part 52 is amended as follows:
PART 52 - APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
1.  The authority citation for part 52 continues to read as follows:
	Authority:  42 U.S.C. 7401 et seq.
Subpart QQ  -  South Dakota
2. Section 52.2170 is amended:
a. In paragraph (c) by revising the table entries for "74:36:01", "74:36:02", "74:36:03", "74:36:09", "74:36:10", "74:36:11", "74:36:12", "74:36:13", "74:36:18", "74:36:20" and "74:36:21".
b. In the table in paragraph (e) by adding the entry "XXVI".
The revised and added text read as follows:
§ 52.2170

Identification of plan.

*	*	*	*	*
(c) * * *
* * *
Rule No.
Rule title
State effective date
EPA effective date
Final rule citation, date
Comments
74:36:01
Definitions
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

74:36:02
Ambient Air Quality
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

74:36:03
Air Quality Episodes
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

*     *     *     *     *
74:36:09
Prevention of Significant Deterioration
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

74:36:10
New Source Review
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

74:36:11
Performance Testing
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

74:36:12
Control of Visible Emissions
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

74:36:13
Continuous Emissions Monitoring Systems
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

*     *     *     *     *
74:36:18
State Facilities in Rapid City Area
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

*     *     *     *     *
74:36:20
Construction Permits
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

74:36:21
Regional Haze Program Administrative Rules
11/25/2019
[insert date of publication in the Federal Register]
[insert Federal Register citation]

* * * * *
(e) * * *
Rule title
State effective date
EPA effective date
Final rule citation, date
Comments
*	*	*	*	*
XXVI. Section 110(a)(2) Infrastructure Requirements for the 2015 8-hour Ozone NAAQS

[insert date of publication in the Federal Register]
[insert Federal Register citation]

*	*	*	*	*

*	*	*	*	*


[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Notices]
[Pages 64396-64397]
[FR Doc No: 2019-25330]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0235]

Hours of Service of Drivers: Wolfe House Movers, LLC and Wolfe
House Movers of Indiana, LLC; Application for Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition; denial of application for
exemption.

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SUMMARY: FMCSA announces its decision to deny Wolfe House Movers, LLC
and Wolfe House Movers of Indiana, LLC (Wolfe) an exemption from the
hours-of-service (HOS) 60-hour/7-day rule for its drivers engaged in
transporting steel beams and dollies to and from various job sites for
lifting and moving buildings. FMCSA has analyzed the exemption
application and public comments, and has determined that the applicant
would not achieve a level of safety that is equivalent to, or greater
than, the level that would be achieved absent such exemption. FMCSA
therefore denies Wolfe's application for an exemption.

DATES: This decision is effective November 21, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. La Tonya Mimms, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone:<PHONE_NUMBER>. Email:
<EMAIL_ADDRESS>If you have questions on viewing or submitting
material to the docket, contact Docket Services, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov and insert
the docket number, ``FMCSA-2018-0235 in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket in person by visiting the Docket Management
Facility in Room W12-140 on the ground floor of the DOT West Building,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5
p.m., e.t., Monday through Friday, except Federal holidays.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from certain Federal Motor Carrier Safety Regulations
(FMCSRs). FMCSA must publish a notice of each exemption request in the
Federal Register (49 CFR 381.315(a)). The Agency must provide the
public an opportunity to inspect the information relevant to the
application, including any safety analyses that have been conducted.
The Agency must also provide an opportunity for public comment on the
request.
    The Agency reviews safety analyses and public comments submitted,
and determines whether granting the exemption would likely achieve a
level of safety equivalent to, or greater than, the level that would be
achieved by the current regulation (49 CFR 381.305). The decision of
the Agency must be published in the Federal Register (49 CFR
381.315(b)) with the reasons for denying or granting the application
and, if granted, the name of the person or class of persons receiving
the exemption, and the regulatory provision from which the exemption is
granted. The notice must also specify the effective period (up to 5
years) and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).

III. Request for Exemption

    Wolfe House Movers, LLC (USDOT 1276267), and Wolfe House Movers of
Indiana, LLC (USDOT 1679025) (Wolfe) seek an exemption from the HOS
requirement of 49 CFR 395.3(b)(1) which prohibits a motor carrier from
permitting or requiring a driver to drive a property-carrying CMV after
the driver has been on duty 60 hours within a period of 7 consecutive
days if the employing motor carrier does not operate CMVs every day of
the week. Wolfe does not operate CMVs every day of the week and is
therefore prohibited from using the 70-hour/8-day rule in 49 CFR
395.3(b)(2) for its business operations.
    According to Wolfe, its primary line of business is lifting and
moving buildings. Drivers employed by Wolfe transport steel beams and
dollies to and from various jobsites where work is performed. Wolfe
advised that its owners believe that Sunday is a day of rest and
worship and refuse any business opportunities that would require Sunday
work.
    Because Wolfe does not conduct business on Sunday, its commercial
business operations are subject to the 60-hours-in-7-day rule set forth
in 49 CFR 395.3(b)(1). Due to the geographical spread of its
operations, Wolfe asserted that the 60-hour limitation is a substantial
burden. Wolfe explained in its application that the company attempts to
schedule work so that all crews can be at their home terminal before
the 60th on-duty hour of the week. However, weather, traffic, or
jobsite conditions sometimes delay completion of projects causing crews
to be stranded one or two hours' drive from the home terminal. When
delays occur relief drivers are sent in non-commercial vehicles to pick
up stranded drivers so that the drivers who have run out of hours can
drive back to the home terminal using the non-commercial vehicles while
the relief drivers return the CMVs to the terminal.
    Wolfe reports that it is a small company and it is difficult to
have relief drivers available on short notice; this is unproductive and
costly for the company. Wolfe asserted that the stress and pressure
associated with approaching the 60-hour cut-off is likely to have a
detrimental effect on the safety performance of even well-trained and
well-qualified drivers.
    According to Wolfe, allowing it to use the 70-hour on-duty limit
for all drivers not operating CMVs on Sundays would provide the
following significant safety benefits:
     The need for relief drivers would be significantly reduced
or eliminated. This would result in fewer on-road miles driven (by
eliminating the need for a relief driver to drive up to 100 miles out
to pick up the CMV and for the regular driver to drive the non-CMV

back the same 100 miles). This would also mean that the CMV would
continue to be driven by the driver most familiar with it, rather than
a part-time driver.
     Drivers would be less stressed, knowing that they have
sufficient time to complete their weekly schedule even if they are
delayed by heavy traffic, weather conditions, etc.
    A copy of Wolfe's application for exemption is available for review
in the docket for this notice.

V. Public Comments

    On October 18, 2018, FMCSA published notice of this application and
requested public comment (83 FR 52872). The Agency received two
comments.
    Mr. Michael Millard wrote, ``If the FMCSA considers approving the
request there should be additional requirements to address training on
driver fatigue so drivers and supervisors can recognize the symptoms
and not allow drivers to violate Part 392.3 regarding ill or fatigued
drivers. If the petition is approved the carrier should only be allowed
to use the 34-hour restart once every six days.''
    Mr. Stanley Roberts stated that ``If they get a waiver then there
would have to be waivers for several industries and businesses. I
contend that the majority of their work would be considered regional at
best and that their drivers are close enough to make it home on 60-hr/
7-day rules.''

VI. FMCSA Decision

    FMCSA has evaluated Wolfe's application and the public comments and
decided to deny Wolfe's exemption request to operate up to 70 hours in
a 6-day period; the company does not operate CMVs on Sundays. Wolfe did
not demonstrate how operating up to 70 hours within 6 consecutive days
of operations (compared to the limit of 60 hours within 6 consecutive
days of operations) would maintain a level of safety equivalent to, or
greater than, the level of safety that would be achieved without the
exemption [49 CFR 381.305(a)]. The company did not provide any
countermeasures (e.g., additional off-duty time, etc.) to address the
approximately 17 percent increase in the maximum amount of on-duty time
that may be accumulated before driving is prohibited.

    Issued on: November 15, 2019.
Jim Mullen,
Deputy Administrator.
[FR Doc. 2019-25330 Filed 11-20-19; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register: January 2, 2008 (Volume 73, Number 1)]
[Rules and Regulations]
[Page 43-48]
[DOCID:fr02ja08-10]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2007-0093]
RIN 1625-AA87

Security Zone; Kahului Harbor, Maui, HI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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SUMMARY: On November 28, 2007, the Coast Guard published a temporary
interim rule that created a security zone in the waters of Kahului Bay
and Kahului Harbor, Maui, and on designated adjacent areas of land.
This temporary final rule modifies the activation period of the
security zone from the previous interim rule to allow the public
greater access to Kahului Harbor and Kahului Bay during the transit of
the Hawaii Superferry. This temporary final rule is intended to enable
the Coast Guard and its law enforcement partners to better protect
people, vessels, and facilities in and around Kahului Bay and Kahului
Harbor during the transit of the Hawaii Superferry. This rule
complements, but does not replace or supersede, existing regulations
that establish a moving 100-yard security zone around large passenger
vessels like the Superferry.

DATES: This rule is effective from January 2, 2008. through January 31,
2008. The Coast Guard will accept comments on this rule through January
31, 2008.

ADDRESSES: You may submit comments and related material, identified by
Coast Guard docket number USCG-2007-0093, by any of the four methods
listed below. To avoid duplication, please use only one of the
following methods:
    (1) Mail: Lieutenant Sean Fahey, U.S. Coast Guard District 14 (dl),
Room 9-130, PJKK Federal Building, 300 Ala Moana Blvd., Honolulu,
Hawaii 96850.
    (2) Electronically: E-mail to Lieutenant Sean Fahey at
<EMAIL_ADDRESS>using the subject line ``Comment--Maui Security

Zone.''
    (3) Fax:<PHONE_NUMBER>.
    (4) Online: http://www.regulations.gov.

    Documents indicated in this preamble as being available in the
docket are part of docket USCG-2007-0093 and are available for
inspection and copying at U.S. Coast Guard District 14 (dl), Room 9-
130, between 7 a.m. and 3:30 p.m., Monday through Friday, except
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Sean Fahey, U.S. Coast
Guard District 14 at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this
temporary rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that
good cause exists for not publishing an NPRM. It would be contrary to
the public interest to delay implementing this temporary rule, as any
delay might result in damage or injury to the public, the Hawaii
Superferry (HSF) and its passengers and crew, other vessels,
facilities, and law enforcement personnel. Though operation of the HSF
from Oahu to Maui was temporarily enjoined by the state circuit court
in Maui, that injunction was lifted on November 14, 2007, following
action by the Hawaii State legislature, and daily service to Maui
resumed on December 13, 2007.
    At the time we published the temporary interim rule for Kahului Bay
and Kahului Harbor on November 28, 2007 (72 FR 67251), we cited
assessments by the Maui Police Department that waterborne obstruction
tactics similar to those used in Kauai in August 2007 were likely to be
employed in Maui as our justification for implementing that rule
without first publishing an NPRM, and for making the rule effective
less than 30 days after publication in the Federal Register. In that
rule, the security zone for Kahului Bay and Kahului Harbor is
automatically activated for enforcement 60 minutes prior to the
Superferry's arrival in the zone, and remains activated for enforcement
until 10 minutes after its departure. Notice of the zone's activation
is provided by broadcast notice to mariners and the display of flags at
Gate 1 at the main entrance to the harbor, on Pier No. 2, and at the
harbor entrance on Wharf Street.
    The Coast Guard position from the start has been that we would only
enforce a fixed security zone in and around Kahului Harbor if it was
necessary to do so to ensure the safety and security of people, vessels
and facilities. As of December 21, 2007, the HSF has been able to
transit through Kahului Bay and Kahului Harbor without serious
impediment, and the Coast Guard believes that it is appropriate to
modify the previously published interim rule in light of these events
to allow lawful users greater access to the land and waters areas of
the security zone. This modification will allow the Coast Guard the
discretion to activate the security zone only when such action is
necessary to respond to actions by would-be obstructers, such as using
themselves as human shields to obstruct the HSF's passage. This
modification will be effected by changing the activation of the zone
from an automatic event (one hour before the HSF arrives in, until ten
minutes after the HSF departs from, Kahului Harbor) to a discretionary
event--a determination by the Captain of the Port that activation of
the zone is necessary to respond to the actions of HSF obstructers.
    Though the Coast Guard has determined that the current security
situation justifies a policy of only implementing the fixed security
zone in and around Kahului Harbor when necessary to respond to acts or
threatened acts that pose a hazard to the safety and security of
people, vessels and facilities, the Coast Guard has also determined
that it would be irresponsible to do away with a fixed security zone
entirely. Just over a week of unopposed sailings into and out of
Kahului by the HSF does not guarantee that would-be obstructers have
entirely given up any thought of employing dangerous obstruction
tactics in the harbor, when the HSF is most restricted in its ability
to maneuver and thus at its most vulnerable. Indeed, waterborne
protesters have illegally entered the waters of the security zone on
several

occasions while the HSF was in Kahului Harbor, resulting in the need
for enforcement action. Furthermore, activists from outside Maui,
including admitted waterborne participants in the August 26 and 27
obstruction of the HSF in Nawiliwili Harbor, Kauai, have traveled to
Maui, and have made statements in the press and otherwise in support of
repeating the Kauai waterborne obstruction tactics on Maui. For these
reasons, the Coast Guard believes it would be prudent, and in the best
interests of safety, to retain a fixed security zone as a tool to be
used when necessary to ensure the safe navigation of the HSF.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard
finds that good cause exists for making this temporary rule effective
less than 30 days after publication in the Federal Register. Also,
under 5 U.S.C. 553(d)(1) this rule may be made effective on January 2,
2008 because it relieves a restriction imposed by the current interim
rule that the zone is activated automatically based on the arrival of
the HSF.
    Although the Coast Guard has good cause to issue this temporary
rule without first publishing a proposed rule, you are invited to
submit post-promulgation comments and related material regarding this
rule through January 31, 2008. The Coast Guard received several
comments on the interim rule, and this public input was useful in the
creation of this temporary final rule. All comments will be reviewed as
they are received. Your comments will assist us in drafting future
rules should they be necessary, and may cause us to change this
temporary final rule before it expires.
    All comments received will be posted, without change, to http://www.regulations.gov
 and will include any personal information you have

provided. We have an agreement with the Department of Transportation
(DOT) for their Docket Management Facility to process online
submissions to Coast Guard dockets. You may review the Department of
Transportation's Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov
.

Background and Purpose

    The Hawaii Superferry (HSF) is a 349-foot large passenger vessel
documented by the U.S. Coast Guard with an endorsement for coastwise
trade, and certified for large passenger vessel service in the United
States. The HSF, operating Hawaii's first inter-island vehicle-
passenger service, is intended to provide service among the islands of
Oahu, Maui, and Kauai. The sole port in Maui that can accommodate the
HSF is Kahului Harbor. The sole port in Kauai that can accommodate the
HSF is Nawiliwili Harbor.
    The HSF inaugurated commercial service from Oahu to both Maui and
Kauai on August 26, 2007. The voyage to and from Maui on that date
occurred without incident. However, in Kauai, nearly 40 swimmers and
obstructers on kayaks and surfboards blocked Nawiliwili Harbor's
navigable channel entrance to prevent the lawful entry of the HSF into
Kauai. Other demonstrators ashore threw rocks and bottles at Coast
Guard personnel who were conveying detained obstructers to shore.
    On the following day, August 27, 2007, the HSF again sailed to and
from Maui without incident. Upon arrival in Kauai, however,
approximately 70 persons entered the water again to physically block
the channel entrance, thereby preventing the HSF from docking in
Nawiliwili Harbor. Due to the difficulty in maneuvering in the small
area of Nawiliwili Harbor, and in the interest of ensuring the safety
of the protesters, the HSF's master chose not to enter the channel
until the Coast Guard cleared the channel of obstructers. However,
because the vessel remained outside the harbor, and because the
obstructers did not approach within 100 yards of the vessel, the
existing security zone for large passenger vessels (33 CFR 165.1410)
did not provide the Coast Guard with the authority to control
obstructer entry into Nawiliwili Harbor or clear the channel of
obstructers before the HSF commenced its transit into the harbor. After
waiting 3 hours, and with nearly 20 obstructers still in the water
actively blocking the HSF, the HSF's master, after consulting with
company officials, made the decision to return to Oahu without mooring
in Kauai.
    On August 28, HSF officials announced the ``indefinite'' suspension
of commercial operations. Shortly after the company announced its
suspension of operations, a Maui trial court judge in state court
issued a temporary restraining order, which was followed by a
preliminary injunction several weeks later, prohibiting HSF from
utilizing the harbor improvements in Kahului Harbor, Maui. This
injunction was the product of a Hawaii Supreme Court determination that
the Hawaii Environmental Protection Act (HEPA) required the state to
conduct an environmental assessment of the effects of the harbor
improvements that were necessary to accommodate the HSF in Kahului
Harbor. Following the Supreme Court decision, the trial court
determined that HEPA required the environmental assessment to be
conducted before the HSF could use those harbor improvements; and since
that assessment had not occurred, the injunction was a necessary
remedy. The injunction only pertained to Kahului Harbor; it did not
apply in Nawiliwili Harbor, Kauai. However, the HSF voluntarily decided
not to sail to Kauai while the court case was ongoing.
    In response to this judicial action, the governor called the Hawaii
legislature into special session to consider whether to grant
legislative relief to HSF. The legislature passed a bill during this
special session called Act 2, which the governor signed into law. Act 2
allowed the HSF to utilize the harbor improvements in Maui and Kauai
while all necessary environmental assessments were being conducted. The
trial judge in Maui determined that this legislation overcame the
requirement in HEPA that caused him to enjoin HSF from utilizing of the
harbor improvements in Maui, and in a ruling on November 14, 2007, he
dissolved and vacated the injunction. This opened the door to HSF
resuming commercial service to Maui.
    Notwithstanding the fact that the HSF did not face waterborne
obstructers in Kahului Harbor during its commercial voyages there in
August, 2007, intelligence and assessments by the Maui Police
Department indicated a substantial likelihood that certain elements in
Maui, disaffected by the process that led to adoption of Act 2 and
vacation of the injunction, might adopt the dangerous tactics used by
the obstructers in Kauai in an effort to prevent the HSF from safely
arriving in Maui upon its resumption of service to the island in
December. Individuals and groups had organized rallies and started
several internet forums to encourage and coordinate support for their
efforts. The dangerous and unlawful intent of these individuals and
groups was clear, as was their resolve.
    In response, on November 28, 2007, the Coast Guard published a
temporary interim rule in the Federal Register (72 FR 67251) creating a
security zone in the waters of Kahului Bay and Kahului Harbor, Maui,
and on certain land features associated with Kahului harbor, to ensure
the safety and security of people, vessels and facilities during the
transit of the Hawaii Superferry. Under the provisions of that rule,
the security zone is automatically activated for enforcement 60 minutes
prior to the Superferry's arrival in the zone and remains activated for
enforcement until

10 minutes after its departure. Notice of the zone's activation is
provided by broadcast notice to mariners and the display of flags at
Gate 1 at the main entrance to the harbor, on Pier No. 2, and at the
harbor entrance on Wharf Street.
    Legitimate recreational users of Kahului Harbor have expressed
concern about the security zone's potential impact on their
recreational activities. This concern was reflected in several of the
comments the Coast Guard received on the interim rule, in comments
reported in the press, and in informal conversations between harbor
users and Coast Guard representatives. In view of the fact that in the
HSF's first full week of resumed operations in Maui there were no
attempts to engage in waterborne obstructions of the HSF's passage, the
Coast Guard has determined that there is no longer a need for the zone
to automatically be activated every time the HSF approaches and enters
Kahului Harbor. Thus, the Coast Guard is creating this temporary final
rule that does away with automatic activation of the fixed security
zone, and instead grants the Captain of the Port discretion to activate
the zone only when he determines that acts or threatened acts pose a
hazard to the safety and security of people, vessels and facilities.
When the security zone is activated for enforcement, notice will be
provided via a marine information broadcast, and via the display of
flags at Gate 1 at the main entrance of the harbor, on Pier No. 2, and
at the harbor entrance on Wharf Street. This rule does not in any way
change the dimensions of the zone established in the temporary interim
rule this rule is replacing, nor does it replace or supersede existing
regulations that establish a moving 100-yard security zone around large
passenger vessels like the Superferry.
    This temporary security zone is in response to the threat posed by
would-be obstructers in and around Kahului Harbor to HSF and its crew
and passengers, law enforcement officers working to ensure HSF's safe
transit, and the obstructers themselves. By designating significant
portions of the waters of Kahului Harbor and Kahului Bay, and specified
areas of land adjacent to the water, as a security zone, this temporary
security zone rule provides the Coast Guard and its law enforcement
partners the authority to prevent persons and vessels from entering or
remaining in the water with the intent of using themselves as human
barriers to impede the HSF's safe passage.

Discussion of Rule

    This rule creates a temporary security zone in most of the waters
of Kahului Harbor, Maui; in waters of Kahului Bay, Maui; and on
designated areas of land adjacent to Kahului Harbor. This temporary
final rule is effective from January 2, 2008, through January 31, 2008.
When the security zone is activated for enforcement, notice will be
given by marine information broadcast and by a red flag, illuminated
between sunset and sunrise, posted at the following locations: At Gate
1 at the main entrance to the harbor; on Pier No. 2; and at the harbor
entrance on Wharf Street. During its period of activation and
enforcement, entry into the land and water areas of the security zone
is prohibited without the permission of the Captain of the Port,
Honolulu, or his or her designated representative.
    In preparing this temporary rule, the Coast Guard made sure to
consider the rights of lawful protestors. To that end, the Coast Guard
excluded from the security zone a defined region which creates a
sizeable area of water in which demonstrators may lawfully assemble and
convey their message in a safe manner to their intended audience. This
area of the harbor not included in the security zone is completely
accessible to anyone who desires to enter the water, even when the
security zone is activated, and is fully visible to observers ashore,
at the HSF mooring facility, aboard the HSF when transiting the harbor,
and from the air.
    The Coast Guard also took into account the lawful users of Kahului
Harbor and Kahului Bay in its creation of this temporary rule. As
previously noted, the rule will only be activated when necessary. With
the exception of the 33 CFR 165.1408 100-yard security zone noted above
that surrounds all large passenger vessels, Kahului Harbor and Kahului
Bay will be fully available to all users during the period when the
security zone is not activated. Furthermore, the rule affords those
desiring to use the harbor and surrounding waters and land areas with
the opportunity to request, and a process for requesting, permission of
the Captain of the Port to enter the zone while it is activated in a
manner that will not endanger any vessel, waterfront facility, the
port, or any person.
    The security zone incorporates the minimum land and water areas
necessary to ensure the purposes underlying the rule's creation are
served. Waters outside of the harbor are included in the zone to ensure
that the HSF is able to line up, unimpeded, on the range that guides it
safely into Kahului Harbor. The breakwaters on either side of the
harbor entrance are included in the zone to ensure that would-be
obstructers do not have a ready staging point for attempting to block
the very narrow entrance to Kahului Harbor. Pier No. 2, to which the
HSF ties up, is included in the security zone, is entirely fenced off,
and not legally accessible except to authorized personnel. Other than
the designated protest area, the waters of Kahului Harbor, including
areas of the harbor not navigable by the HSF, are included in the zone
to prevent would-be obstructers from interfering with law enforcement
vessels in the harbor that are working to ensure the HSF's safe
passage.
    Under 33 CFR 165.33, entry by persons or vessels into the security
zone during a period of zone activation is prohibited unless authorized
by the Coast Guard Captain of the Port, Honolulu or his or her
designated representatives.
    Operation of any type of vessel, including every description of
watercraft or other artificial contrivance used, or capable of being
used, as a means of transportation on water, within the security zone
while the zone is activated is prohibited. If a vessel is found to be
operating within the security zone without permission of the Captain of
the Port, Honolulu while the zone is activated, the vessel is subject
to seizure and forfeiture.
    All persons and vessels permitted in the security zone while the
zone is activated must comply with the instructions of the Coast Guard
Captain of the Port or the designated on-scene patrol personnel. These
personnel include commissioned, warrant, and petty officers of the
Coast Guard and other persons permitted by law to enforce this
regulation. Upon being hailed by an authorized vessel or law
enforcement officer using siren, radio, flashing light, loudhailer,
voice command, or other means, the operator of the vessel must proceed
as directed.
    If authorized passage through the security zone, a vessel must
operate at the minimum speed necessary to maintain a safe course and
must proceed as directed by the Captain of the Port or his or her
designated representatives. While underway with permission of the
Captain of the Port or his or her designated representatives, under 33
CFR 165.1408, no person or vessel is allowed within 100 yards of the
HSF when it is underway, moored, position-keeping, or at anchor, unless
authorized by the Captain of the Port or his or her designated
representatives.

    When conditions permit, the Captain of the Port, or his or her
designated representatives, may permit vessels that are at anchor,
restricted in their ability to maneuver, or constrained by draft to
remain within the security zone during the enforcement period in order
to ensure navigational safety. Any Coast Guard commissioned, warrant,
or petty officer, and any other person permitted by law, may enforce
the regulations in this section.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
    We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation is unnecessary. This expectation is based on
the short activation and enforcement duration of the security zone
created by this temporary rule, as well as the limited geographic area
affected by the security zone.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule will have a significant economic impact on
a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities. While we are aware that the affected area has small entities,
including canoe and boating clubs and small commercial businesses that
provide recreational services, we anticipate that there will be little
or no impact to these small entities due to the narrowly tailored scope
of this temporary rule, as well as the fact that such entities can
request permission from the Captain of the Port to enter the security
zone when it is activated.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding this rule so that they may better evaluate
its effects on them and participate in the rulemaking process. If this
rule will affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact Lieutenant Sean Fahey, U.S.
Coast Guard District 14, at<PHONE_NUMBER>. The Coast Guard will not
retaliate against small entities that question or complain about this
rule or any policy or action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and either preempts State law or imposes a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

Unfunded Mandates Reform Act

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

Taking of Private Property

    This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

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

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children. While some obstructers, both on
land and on shore, used small children in furtherance of their
obstruction activities during the August 26 and 27 HSF arrivals into
Kauai, and while online forums and other sources indicate that some
organizers are actively recruiting adolescents and small children with
the intent of putting them in harm's way should the HSF attempt to
enter either Kauai or Maui, any heightened harm faced by children as a
result of these tactics has no relation to the creation of this rule.
Instead, those heightened risks are entirely the product of persons who
recruit and employ adolescents and children to put themselves at risk
of death or serious physical injury by attempting to physically
obstruct the passage of a large passenger vessel in a small harbor.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their

regulatory activities unless the agency provides Congress, through the
Office of Management and Budget, with an explanation of why using these
standards is inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g.,
specifications of materials, performance, design, or operation; test
methods; sampling procedures; and related management systems practices)
that are developed or adopted by voluntary consensus standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that limit the
use of a categorical exclusion under section 2.B.2 of the Instruction.
Therefore, under figure 2-1, paragraph (34)(g) of the Commandant
Instruction M16475.1D, this rule is categorically excluded from further
environmental documentation. An ``Environmental Analysis Checklist''
and ``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.

0
2. Revise temporary Sec.  165.T14-164 to read as follows:

Sec.  165.T14-164  Security Zone; Kahului Harbor, Maui, HI.

    (a) Location. The following land areas, and water areas from the
surface of the water to the ocean floor, are a security zone that is
activated as described in paragraph (c) of this section, and enforced
subject to the provisions of paragraph (d) of this section:
    (1) All waters of Kahului Harbor, Maui, shoreward of the Kahului
Harbor COLREGS DEMARCATION LINE (see 33 CFR 80.1460), except for a zone
extending from the shoreline with the following three legs as
boundaries:
    (i) A leg extending in a straight line between Buoy ``10'' (LLNR
28375) and Buoy ``12'' (LLNR 28380);
    (ii) A leg extending in a straight line between Buoy ``10'' (LLNR
28375) and the nearest shoreline point; and
    (iii) A leg extending in a straight line between Buoy ``12'' (LLNR
28380) and the fence line at the southwestern base of Pier Two, at
position (20 [deg]53.589'N, 156 [deg]28.084'W).
    (2) Pier No. 2 in Kahului Harbor.
    (3) The eastern breakwater at the entrance of Kahului Harbor,
beginning at the east break wall (20 [deg]53.958'N, 156 [deg]28.161'W).
    (4) The western breakwater at the entrance of Kahului Harbor,
beginning at the berm on the west break wall (20 [deg]53.925'N, 156
[deg]28.611'W).
    (5) All waters of Kahului Bay bounded on the south by the COLREGS.
DEMARCATION LINE (see 33 CFR 80.1460); bounded on the north by line of
latitude 20[deg]56' N; bounded on the west by a straight line drawn
from the berm on the west break wall (20[deg]53.925' N, 156[deg]28.611'
W) at a direction of 330[deg] to the line of latitude 20[deg]56' N; and
bounded on the east by a straight line drawn from the east break wall
(20[deg]53.958' N, 156[deg]28.161 W) at a direction of 030[deg] and
ending at the line of latitude 20[deg]56' N.
    (b) Effective period. This section is effective from January 2,
2008, through January 31, 2008. It will be activated for enforcement as
described in paragraph (c) of this section.
    (c) Zone activation. The zone described in paragraph (a) of this
section will be activated for enforcement when necessary, as determined
by the Captain of the Port Honolulu, to prevent damage or injury to
vessels, persons, and waterfront facilities, including the Hawaii
Superferry, its passengers and crew. The zone, however, will be
activated no sooner than 60 minutes before the Hawaii Superferry's
anticipated arrival into the zone and will remain activated no more
than 10 minutes after the Hawaii Superferry's departure from the zone.
Notice of activation of the zone will be made by the issuance of a
marine information broadcast, and by the hoisting of a red flag,
illuminated between sunset and sunrise, posted at the following
locations: at Gate 1 at the main entrance to the harbor; on Pier No. 2;
and at the harbor entrance on Wharf Street.
    (d) Regulations. (1) Under 33 CFR 165.33, entry by persons or
vessels into the security zone created by this section and activated as
described in paragraph (c) of this section is prohibited unless
authorized by the Coast Guard Captain of the Port, Honolulu or his or
her designated representatives. Operation of any type of vessel,
including every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water, within the security zone is prohibited. If a
vessel is found to be operating within the security zone without
permission of the Captain of the Port, Honolulu, and refuses to leave,
the vessel is subject to seizure and forfeiture.
    (2) All persons and vessels permitted in the security zone while
the zone is activated must comply with the instructions of the Coast
Guard Captain of the Port or the designated on-scene-patrol personnel.
These personnel comprise commissioned, warrant, and petty officers of
the Coast Guard and other persons permitted by law to enforce this
regulation. Upon being hailed by an authorized vessel or law
enforcement officer using siren, radio, flashing light, loudhailer,
voice command, or other means, the operator of a vessel must proceed as
directed.
    (3) If authorized passage through the security zone while the zone
is activated, a vessel must operate at the minimum speed necessary to
maintain a safe course and must proceed as directed by the Captain of
the Port or his or her designated representatives. While underway with
permission of the Captain of the Port or his or her designated
representatives, no person or vessel is allowed within 100 yards of the
Hawaii Superferry when it is underway, moored, position-keeping, or at
anchor, unless authorized by the Captain of the Port or his or her
designated representatives.
    (4) Persons desiring to transit the security zone in this section
while the zone is activated may contact the Captain of the Port at
telephone number<PHONE_NUMBER> or on VHF channel 12 to seek permission
to transit the area. If permission is granted, all persons and vessels
must comply with the instructions of the Captain of the Port or his or
her designated representatives. When conditions permit, the Captain of
the Port, or his or her designated representatives, may permit vessels
that are at anchor, restricted in their ability to maneuver, or
constrained by draft to remain within the security zone in order to
ensure navigational safety.

    (e) Enforcement. Any Coast Guard commissioned, warrant, or petty
officer, and any other Captain of the Port representative permitted by
law, may enforce this temporary security zone.

    Dated: December 21, 2007.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard
District.
 [FR Doc. E7-25496 Filed 12-31-07; 8:45 am]

BILLING CODE 4910-15-P


			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on April 20, 2004

NOTICE OF ACTION TAKEN -- DOCKET OST-2004-17377

________________________________________________________________________
________________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Application of    ATA  AIRLINES, INC.,  filed  03/19/04for:

XX  Exemption for two years under 49 U.S.C. 40109 to provide the
following service:

Scheduled foreign air transportation of persons, property, and mail
between Chicago (Midway), Illinois, and Cozumel, Mexico.  ATA  states
that it plans to operate on Saturdays only, beginning November 6, 2004,
with B737-800 aircraft.

United Air Lines, Inc. filed an answer to ATA’s application, stating
that United has no objection to the application as long as grant of the
application does not preclude grant of United’s application for
exemption to provide Chicago-Cozumel service.  United urges
contemporaneous grant of both carriers’ applications.  The City of
Chicago filed an answer in support of ATA’s application.

Applicant rep:   Brian T. Hunt<PHONE_NUMBER>   DOT Analyst:  Linda
Senese<PHONE_NUMBER>

D I S P O S I T I O N

XX  Granted (subject to conditions, see below)

The above action was effective when taken:   April  20, 2004 through
April 20, 2006.

Action taken by:   Paul L. Gretch, Director

                               Office of International Aviation

XX   The authority granted is consistent with the aviation agreement
between the United States and Mexico.

Except to the extent exempted or waived, this authority is subject to
the terms, conditions, and limitations indicated:    	XX  Holder’s
certificates of public convenience and necessity

		XX  Standard Exemption Conditions (attached)

Conditions:  The U.S.-Mexico exemption authority granted is subject to
the dormancy notice requirements set forth in condition 7 of Appendix A
of Order 88-10-2.   Consistent with our standard policy, the dormancy
notice period for the Chicago-Cozumel services will begin November 6,
2004, the carrier’s proposed startup date for the Chicago-Cozumel
service.

Remarks:  We have contemporaneously granted United’s request for
Chicago-Cozumel authority. (See Notice of Action Taken, Docket
OST-2004-17490).

On the basis of data officially noticeable under Rule 24(g) of the
Department’s regulations, we found the applicant qualified to provide
the services authorized.

(See Reverse Side)

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) grant of the application was consistent with the public
interest; and (3) grant of the authority would not constitute a major
regulatory action under the Energy Policy and Conservation Act of 1975.
To the extent not granted, we denied all requests in the referenced
Docket.  We may amend, modify, or revoke the authority granted in this
Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

http://dms.dot.gov//reports/reports_aviation.asp							ATTACHMENT

U.S. Carrier Standard Exemption Conditions

In the conduct of the operations authorized, the U.S. carrier
applicant(s) shall:

(1)  Hold at all times effective operating authority from the government
of each country served;

(2)  Comply with applicable requirements concerning oversales contained
in 14 CFR 250 (for scheduled operations, if authorized);

(3)  Comply with the requirements for reporting data contained in 14 CFR
241;

(4)  Comply with requirements for minimum insurance coverage, and for
certifying that coverage to the Department, contained in 14 CFR 205;

(5)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR 203, concerning
waiver of Warsaw Convention liability limits and defenses;

(6)  Comply with all applicable requirements of the Federal Aviation
Administration and with all applicable U.S. Government requirements
concerning security.  To assure compliance with all applicable U.S.
Government requirements concerning security, the holder shall, before
commencing any new service (including charter flights) to or from a
foreign airport, contact its Principal Security Inspector (PSI) to
advise the PSI of its plans and to find out whether the Transportation
Security Administration has determined that security is adequate to
allow such airport(s) to be served; and

(7)  Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department of Transportation, with all applicable orders and regulations
of other U.S. agencies and courts, and with all applicable laws of the
United States.

The authority granted shall be effective only during the period when the
holder is in compliance with the conditions imposed above.

											8/2003