Federal Register Vol. 80, No.160,

This proposal is issued under the Order (7 CFR part 1222). The Order is authorized under the Commodity Promotion, Research and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has waived the review process.

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

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

This proposal invites comments on prescribing late payment and interest charges on past due assessments under the Order. The Order is administered by the Board with oversight by USDA. Under the Order, assessments are collected from manufacturers and importers and used for projects to promote paper and paper-based packaging. This proposal would implement authority contained in the Order and the 1996 Act that allows the Board to collect late payment and interest charges on past due assessments. This action was unanimously recommended by the Board and would contribute to effective administration of the program.

Section 1222.52(a) of the Order specifies that the Board's programs and expenses shall be paid by assessments on manufacturers and importers and other income or funds available to the Board. Paragraph (g) of that section specifies further that when a manufacturer or importer fails to pay the assessment within 60 calendar days of the date it is due, the Board may impose a late payment charge and interest. The late payment charge and rate of interest must be prescribed in regulations issued by the Secretary. All late assessments would be subject to the specified late payment charge and interest.

The Order became effective on January 23, 2014. Assessment collection began on March 1, 2014. Manufacturers and importers must pay their assessments owed to the Board by the 30th calendar day of the month following the end of the quarter in which the paper and paper-based packaging was manufactured or imported. For example, assessments for paper manufactured or imported during the months of January, February and March are due to the Board by April 30.

Entities that domestically manufacture or import to the United States less than 100,000 short tons of paper and paper-based packaging in a year are exempt from paying assessments. If an entity is both a manufacturer and an importer, the entity's combined quantity of paper and paper-based packaging manufactured and imported during a marketing year counts toward the 100,000 short ton exemption.

Assessment funds are used for promotion activities that are intended to benefit all industry members. Thus, it is important that all assessed entities pay their assessments in a timely manner. Entities who fail to pay their assessments on time would be able to reap the benefits of Board programs at the expense of others. In addition, they would be able to utilize funds for their own use that should otherwise be paid to the Board to finance Board programs.

At a meeting held September 25, 2014, the Board unanimously recommended implementing the Order authority regarding late payment and interest charges. Specifically, the Board recommended that a late payment charge be imposed on any manufacturer or importer who fails to make timely remittance to the Board of the total assessments for which such manufacturer or importer is liable. The late payment charge would be imposed on any assessments not received within 60 calendar days of the date they are due. This one-time late payment charge would be equal to 10 percent of the assessments due before interest charges have accrued.

The Board also recommended that an interest rate of 11/2 percent per month be added to the outstanding balance, including any late payment charge and accrued interest, of any accounts for which payment has not been received within 60 calendar days after the assessments are due. Interest would continue to accrue monthly until the outstanding balance is paid to the Board.

This action is expected to help facilitate program administration by providing an incentive for entities to remit their assessments in a timely manner, with the intent of creating a fair and equitable process among all assessed entities. Accordingly, a new Subpart C would be added to the Order for provisions implementing the paper and paper-based packaging Order, and a new § 1222.520 would be added to Subpart C.

This proposal would also make two additional changes to the Order. This proposed rule would revise the term Board as defined in § 1222.2 from the Paper and Paper-Based Packaging Board to the Paper and Packaging Board. This change would simplify the term and bring the Order in line with current industry use. Conforming changes would also be made to § 1222.40(a) and the heading immediately prior to this section where the term is also referenced. In addition, in § 1222.108, the OMB control number would be changed from 0581-NEW to 0581-0281, the control number assigned by the OMB.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of the proposed rule on small entities. Accordingly, AMS has considered the economic impact of this action on such entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (manufacturers and importers) as those having annual receipts of no more than $7.0 million.

According to the Board, there are 69 manufacturers in the United States that produce the types of paper and paper-based packaging covered under the Order. Using an average price of $806 per short ton,1 a manufacturer who produces less than about 8,680 short tons of paper and paper-based packaging per year would be considered a small entity. It is estimated that no more than four manufacturers produced less than 8,680 short tons per year. Thus, the majority of manufacturers would not be considered small businesses.

Based on U.S. Customs and Border Protection (Customs) data, it is estimated that in 2014 there were 2,800 importers of paper and paper-based packaging. Ninety importers, or about 3 percent, imported more than $7.0 million worth of paper and paper-based packaging. Thus, the majority of importers would be considered small entities. However, all of the 20 entities that imported 100,000 short tons or more (the Order's exemption threshold) also imported more than $7.0 million worth of paper and paper-based packaging. Therefore, none of the 20 importers covered under the Order would be considered small businesses.

Based on domestic production of approximately 66.1 million short tons in 2014 and an average price of $806 per short ton, the domestic paper and paper-based packaging industry is valued at approximately $53.3 billion. According to Customs data, the value of paper and paper-based packaging imports in 2014 was about $5.9 billion.

This proposal invites comments on prescribing late payment and interest charges on past due assessments under the Order. The Order is administered by the Board with oversight by USDA. Under the Order, assessments are collected from manufacturers and importers and used for projects to promote paper and paper-based packaging. This rule would add a new § 1222.520 that would specify a late payment charge of 10 percent of the assessments due and interest at a rate of 11/2 percent per month on the outstanding balance, including any late payment charge and accrued interest. This section would be included in a new Subpart C—Provisions for Implementing the Paper and Paper-Based Packaging Promotion, Research and Information Order. This action was unanimously recommended by the Board and is authorized under § 1222.52(g) of the Order and section 517(e) of the 1996 Act. In addition, two additional changes are proposed to reflect current practices and update the Order and regulations. These changes are: (1) Revising the name of the Board from the Paper and Paper-Based Packaging Board to the Paper and Packaging Board; and (2) the OMB control number would be changed from 0581-NEW to 0581-0281, the control number assigned by the OMB.

Regarding the economic impact of this proposed rule on affected entities, this action would impose no costs on manufacturers and importers who pay their assessments on time. It would merely provide an incentive for entities to remit their assessments in a timely manner. For all entities who are delinquent in paying assessments, both large and small, the charges would be applied the same. As for the impact on the industry as a whole, this action would help facilitate program administration by providing an incentive for entities to remit their assessments in a timely manner, with the intent of creating a fair and equitable process among all assessed entities.

Additionally, as previously mentioned, the Order provides for an exemption for entities that domestically manufacture or import less than 100,000 short tons annually. It is estimated that 24 out of the 69 domestic manufacturers, or 35 percent, produce less than 100,000 short tons per year and are thus exempt from paying assessments under the Order. Of the 2,800 importers of paper and paper packaging, it is estimated that 2,780, or 99 percent, import less than 100,000 short tons per year and are also exempt from paying assessments. Thus, about 45 domestic manufacturers and 20 importers pay assessments under the Order.

The alternative to this proposed action would be to maintain the status quo and not impose late payment and interest charges on past due assessments. However, the Board determined that implementing these charges would help facilitate program administration by encouraging entities to pay their assessments in a timely manner. The Board reviewed the late payment and interest charges applied by other research and promotion programs and concluded that a 10 percent late payment charge and interest at a rate of 11/2 percent per month on the outstanding balance would be appropriate.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581-0281. This proposed rule would not result in a change to the information collection and recordkeeping requirements previously approved and would impose no additional reporting and recordkeeping burden on manufacturers and importers of paper and paper-based packaging.

As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

AMS is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Regarding outreach efforts, the Board met on September 25, 2014, and unanimously made its recommendation. The Board's meetings, including meetings held via teleconference, are open to the public and interested persons are invited to participate and express their views.

We have performed this initial RFA regarding the impact of this proposed action on small entities and we invite comments concerning potential effects of this action on small businesses.

While this proposed rule set forth below has not received the approval of USDA, it has been determined that it is consistent with and would effectuate the purposes of the 1996 Act.

A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments received in response to this proposed rule by the date specified will be considered prior to finalizing this action.

For the reasons set forth in the preamble, 7 CFR part 1222 is proposed to be amended as follows:

The Poultry Products Inspection Act (PPIA) prohibits the distribution of poultry products that are adulterated or misbranded (21 U.S.C. 458). The PPIA also authorizes the Secretary of Agriculture to prescribe, among other things, definitions and standards of identity or composition for poultry products whenever the Secretary determines that such action is necessary for the protection of the public (21 U.S.C. 457(b)). Poultry classes were established by USDA to aid in labeling poultry. The classes were based primarily on the age and sex of the bird. FSIS uses poultry class standards to ensure that poultry products are labeled in a truthful and non-misleading manner.

On November 3, 2011, FSIS published a final rule to amend the definitions and standards for the U.S. classes of poultry listed in 9 CFR 381.170(a)(1)(76 FR 68058). The 2011 final rule lowered the age definitions for five classes of poultry and removed the word “usually” from the age designation descriptions, so that the age designations are clear and enforceable (76 FR 68058, 68062). In addition to lowering the age definition for the “roaster” class, the final rule also defined a “roaster” based on a ready-to-cook (RTC) carcass weight.

A “roaster” or “roasting chicken” (hereafter referred to as “roasters”) is defined in 9 CFR 381.170(1)(a)(iii) as “a young chicken (between 8 and 12 weeks of age), of either sex, with a ready-to-cook carcass weight of 5 pounds or more, that is tender-meated with soft, pliable, smooth-textured skin and breastbone cartilage that is somewhat less flexible than that of a broiler or fryer.” This definition was informed by data collected by the USDA Agricultural Marketing Service (AMS) from the segment of the industry that routinely produces “roasters,” comments received in response to a September 3, 2003, proposed rule to amend the poultry classes (68 FR 55902), and comments received in response to a 2009 supplemental proposed rule in which the Agency re-proposed to amend the “roaster” standard to establish an age range from 8 to 12 weeks and to provide for a RTC carcass weight (74 FR 3337, July 13, 2009). The 2011 final rule became effective on January 1, 2014, the uniform compliance date for FSIS labeling regulations issued between January 1 2011 and December 31, 2012 (75 FR 71344, November 23, 2010).

On November 18, 2013—before the January 1, 2014, effective date for the final rule—the National Chicken Council (NCC) submitted a petition requesting that FSIS amend the definition and standard of identity for the “roaster” chicken class to remove the 8-week minimum age requirement and to increase the RTC carcass weight to 5.5 pounds. The petition is available on the FSIS Web site at http://www.fsis.usda.gov/wps/wcm/connect/adf54579-7a18-4ab2-a9b5-88f1eef65332/Petition-National-Chicken-Council.pdf?MOD=AJPERES.

The petition specifically asked FSIS to amend 9 CFR 381.170(a)(1)(iii) to define a “roaster” as a young chicken (less than 12 weeks of age) of either sex, with an RTC carcass weight of 5.5 pounds or more, that is tender-meated with soft, pliable, smooth-textured skin and breastbone cartilage that may be somewhat less flexible than that of a “broiler” or “fryer.” The petition also requested that FSIS, as necessary, exercise enforcement discretion or stay the effective date of the “roaster” definition scheduled to go into effect on January 1, 2014.

According to the petition, the “roaster” standard established in the 2011 final rule would detract from the orderly and efficient marketing of classes of poultry because companies would be unable to label and market chickens with the RTC weight and other physical attributes of a “roaster” as “roasters” because of the minimum age requirement. The NCC asserted that improvements in breeding and poultry management techniques that have continued since FSIS published the November 2011 final rule have enabled producers to raise chickens with the characteristics of roasters in under 8 weeks.

NCC submitted additional data in support of its petition on December 16, 2013 (available on the FSIS Web site at: http://www.fsis.usda.gov/wps/portal/fsis/topics/regulations/petitions). FSIS, in consultation with USDA's AMS conducted a preliminary review of the petition and supporting data. From this preliminary review, FSIS and AMS found that data show that producers are raising chickens with a RTC carcass weight of 5 pounds or more with the other physical characteristics of a “roaster” in less than 8 weeks. The data also show that in 2012, the average commercially processed chicken reached a slaughter weight of 5.95 pounds in 47 days. This amount of time is less than the 8-week minimum age for a “roaster,” although the bird's weight would exceed the 5 pound RTC minimum weight requirement. Thus, the age of these birds falls within the age range for “broilers” (i.e., under 10 weeks), but these birds have the size and other physical attributes of “roasters.” On the basis of these findings, FSIS and AMS agreed on the need to address this gap in the regulations.

Therefore, in the December 27, 2013, edition of its Constituent Update newsletter, FSIS announced that it would allow chickens younger than 8 weeks of age to continue to be labeled and marketed as “roasters” after the new poultry class standards go into effect if these birds meet all of the other characteristics of a “roaster” in the standard. That is, they would have to have a RTC carcass weight of 5 pounds or more, be tender-meated, and have soft, pliable, smooth-textured skin that is somewhat less flexible than that of a broiler or fryer.1 FSIS also stated that it intended to propose to revise the roaster definition or reaffirm the November 2011 definition (http://www.fsis.usda.gov/wps/portal/fsis/newsroom/meetings/newsletters/constituent-updates/archive/2013/ConstUpdate122713).

In July 2014, FSIS, in consultation with AMS, completed its review of the NCC petition. AMS verified that the data that NCC submitted to support the petition are consistent with production data that AMS collected from the poultry industry. After reviewing the available information, FSIS and AMS concluded that the data show that chickens younger than 8 weeks are consistently reaching higher average dressed weights in shorter periods of time, and that there is a trend of increasing growth rate of commercially processed chickens between 2009 and 2012, supporting the elimination of a minimum age for the “roaster” class. FSIS, in consultation with AMS, also found that the data show that, in those regions of the country where “roasters” are marketed, customers value “roasters” more highly on a pound-per-pound basis than they do “broilers,” demonstrating the need to allow birds with the physical characteristics of “roasters” to be accurately labeled as “roasters.”

Therefore, on July 23, 2014, FSIS sent a letter to the NCC to inform the organization that FSIS had decided to grant its petition to amend the “roaster” poultry class (http://www.fsis.usda.gov/wps/wcm/connect/d6fba22b-271d-4204-adc6-56ab45d7b587/NCC-FSIS-Response-72314.pdf?MOD=AJPERES).

FSIS is proposing to amend the poultry class standards to define a “roaster” or “roasting chicken” as a young chicken (less than 12 weeks of age) of either sex, with a ready-to-cook carcass weight of 5.5 pounds or more, that is tender-meated with soft, pliable, smooth-textured skin and breastbone cartilage that may be somewhat less flexible than that of a “broiler” or “fryer.” Removing the minimum age and increasing the RTC carcass weight for the “roaster” class, as requested in the petition, would allow birds younger than 8 weeks that have the physical characteristics of a “roaster” to continue to be labeled and marketed as “roasters.”

As noted above, FSIS is proposing to increase the RTC carcass weight for “roasters” from 5 to 5.5 pounds, as requested in the petition. However, FSIS is soliciting comments regarding the merit of increasing the minimum RTC carcass weight from 5 pounds to 5.5 pounds and the effect that such an increase may have on small poultry producers. To be of value, the comments must provide a factual basis for or against increasing the weight requirement for “roasters.”

This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of Executive Order (E.O.) 12866. Accordingly, the rule has been not been reviewed by the Office of Management and Budget under E.O. 12866.

This rule will not have significant costs because FSIS currently allows birds younger than 8 weeks with the physical attributes of “roasters” to be labeled as “roasters.” 2 The proposed rule would codify present practices and would not impose new requirements on establishments. For consumers, it would ensure that the labels for chickens with the characteristics of “roaster” are truthful and not misleading, and, consequently, consumers will be able to make informed purchase decisions.

The FSIS Administrator has made a preliminary determination that this proposed rule would not have a significant economic impact on a substantial number of small entities in the United States, as defined by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

FSIS projects that this rule will not result in additional costs to the industry because FSIS currently allows birds younger than 8 weeks with the physical attributes of “roasters” to be labeled as “roasters.” 3

FSIS has reviewed this rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and has determined that the information collection related to labeling has been approved by OMB under OMB control number 0583-0092.

FSIS does not anticipate many label changes due to the proposed change to the “roaster” definition because establishments that produce chickens that comply with the proposed “roaster” poultry class standard are already labeling these birds as “roasters.”

FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq.) by, among other things, promoting the use of the Internet and other information technologies, and providing increased opportunities for citizen access to Government information and services, and for other purposes.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.

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

No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

Send your completed complaint form or letter to USDA by mail, fax, or email:

Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, Fax: (202) 690-7442, Email: [email protected].

Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS Web page located at: http://www.fsis.usda.gov/federal-register.

FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS Web page. Through the Web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

For the reasons set forth in the preamble, FSIS proposes to amend 9 CFR part 381, as follows:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-3141; Directorate Identifier 2014-NM-242-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We have received reports of cracking in the fuselage frame at Station (STA) 1440, stringer S-24L. The airplane had 36,890 total flight cycles and 78,922 total flight hours. The cracking was discovered during unrelated local repairs. An investigation has determined the cracking may have been caused by fatigue. The cracking initiated in the fuselage frame at the corner radius of the fuselage frame opening for the stringer. It continued to the fastener hole common to the fuselage frame, splice plate, and fail safe chord. The cracking was not visible because it was completely hidden by the splice plate on one side and the fail safe chord on the other side.

Fuselage frame fatigue cracking could result in loss of structural integrity and the inability to sustain loading conditions.

We reviewed Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. The service information describes procedures for detailed and high frequency eddy current (HFEC) inspections for cracking in the fuselage frame at stringer 24 and stringer 25, left and right sides. 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 of this NPRM.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between this Proposed AD and the Service Information.” Refer to his service information for details on the procedures and compliance times.

Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as Required for Compliance (RC) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

For service information that contains steps that are labeled as RC, the following provisions apply: (1) the steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an AMOC is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

We estimate that this proposed AD affects 652 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-3142; Directorate Identifier 2015-NM-003-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We received reports of the display of status messages from the engine indication and crew alerting system (EICAS). Boeing and the actuation system supplier determined these messages are displayed when electro-hydraulic servo valves (EHSVs) of the power control units (PCUs) of the primary flight control system are restricted due to the accumulation of particle deposits. Failures have only occurred on airplanes operated with Skydrol LD-4 hydraulic fluid. Changing the hydraulic fluid to HyJet V would reduce the rate of particle deposit accumulation. This condition, if not corrected, could result in the eventual failure of flight control hydraulic PCUs, which could lead to reduced controllability of the airplane.

We reviewed Boeing Alert Service Bulletin B787-81205-SB270026-00, Issue 001, dated November 25, 2014. This service information describes procedures for installing markers to limit the hydraulic system fluid used to a specific brand, doing hydraulic fluid tests of the hydraulic systems, replacing the hydraulic system fluid if necessary, and related investigative and corrective actions. 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 of this NPRM.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously. Refer to this service information for details on the procedures and compliance times.

The phrase “related investigative actions” is used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary actions, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as RC (required for compliance) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

For service information that contains steps that are labeled as Required for Compliance (RC), the following provisions apply: (1) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an AMOC is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

We estimate that this proposed AD affects 11 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:

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

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E airspace at Van Nuys Airport, Van Nuys, CA.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-1138; Airspace Docket No. 15-AWP-3.” The postcard will be date/time stamped and returned to the commenter.

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

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the “ADDRESSES” section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This document proposes to amend FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class D airspace and Class E surface area airspace at Van Nuys Airport, Van Nuys, CA. A review of the airspace revealed additional Class D airspace and Class E surface area airspace necessary to support instrument arrival procedures at the airport. Class D airspace would extend upward from the surface to but not including 3,000 feet within a 4.3-mile radius of Van Nuys Airport excluding that airspace within the Bob Hope Airport, Burbank, CA, formerly Burbank-Glendale-Pasadena Airport, CA, Class C airspace area, and excluding that airspace within a 1.8-mile radius of Whiteman Airport, Los Angeles, CA. Class E surface area airspace would extend upward from the surface within a 4.3-mile radius of Van Nuys Airport excluding that airspace within the Bob Hope Airport, Burbank, CA, formerly Burbank-Glendale-Pasadena Airport, CA, Class C airspace area, and excluding that airspace within a 1.8-mile radius of Whiteman Airport, Los Angeles, CA. The geographic coordinates for both airports would be adjusted to be in concert with the FAAs aeronautical data base.

Class D and Class E airspace designations are published in paragraph 5000 and 6002, respectively, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

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

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

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

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 would remove Class E airspace at Burbank-Glendale-Pasadena Airport, Burbank, CA.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-1140; Airspace Docket No. 15-AWP-5.” The postcard will be date/time stamped and returned to the commenter.

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

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This document proposes to amend FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by removing Class E airspace designated as an extension to Class C airspace at Burbank-Glendale-Pasadena Airport, Burbank, CA. A review of the airspace revealed removal necessary due to no standard instrument approach procedures requiring Class E surface area airspace designated as an extension to the Class C airspace.

Class E airspace designations are published in paragraph 6003 of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, 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.

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

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

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

The Commission received a petition requesting that the Commission initiate rulemaking under the FHSA to declare several categories of products containing additive organohalogen flame retardants to be “banned hazardous substances.” Specifically, the request asks the Commission to declare that:

• Any durable infant or toddler product, children's toy, child care article, or other children's product (other than children's car seats) that contains additive organohalogen flame retardants, is a “banned hazardous substance”;

• Any article of upholstered furniture sold for use in residences and containing additive organohalogen flame retardants is a “hazardous substance” and a “banned hazardous substance”;

• Any mattress or mattress pad with additive organohalogen flame retardants is a “hazardous substance” and a “banned hazardous substance”; and

• Any electronic device with additive organohalogen flame retardants in its plastic casing is a “hazardous substance” and a “banned hazardous substance.”

The petition was filed by Earthjustice and the Consumer Federation of America, which are joined by American Academy of Pediatrics, American Medical Women's Association, Consumers Union, Green Science Policy Institute, International Association of Fire Fighters, Kids in Danger, Philip Landrigan, M.D., M.P.H., League of United Latin American Citizens, Learning Disabilities Association of America, and Worksafe.

Petitioners assert that additive organohalogen flame retardants are used extensively in the consumer products categories that would be covered by their rulemaking request. Petitioners further assert that, based on the physico-chemical properties of additive organohalogen flame retardants, all such chemicals in this class will migrate out of consumer products and persist in the indoor environment. According to petitioners, because organohalogen flame retardants are, as a class, foreign to the human body and inherently toxic due to their physical, chemical, and biological properties, human exposure to these chemicals will result in adverse human health impacts. Finally, petitioners provide data and information regarding adverse human health impacts, which include reproductive impairment, neurological impacts, endocrine disruption and interference with thyroid hormone action, genotoxicity, cancer, and immune disorders.

Petitioners assert that declaring the specified categories of products containing additive organohalogen flame retardants to be “banned hazardous substances” is necessary to adequately protect public health and safety. More specifically, petitioners assert that action short of a ban under the FHSA would not adequately protect the public health and safety because warning labeling cannot adequately prevent or control exposure to flame retardants that migrate from products into homes. Furthermore, petitioners argue that the ban must apply to the entire class of additive organohalogen flame retardants because banning only individual chemicals within that class would allow other inherently toxic chemicals within that class to be used.

By this notice, the Commission seeks comments concerning this petition. Interested parties may obtain a copy of the petition by writing or calling the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923. A copy of the petition is also available for viewing under “Supporting and Related Materials” in www.regulations.gov under this docket number, Docket No. CPSC-2015-0022.

The subject of the public hearing is the notice of proposed rulemaking (REG-108214-15) that was published in the Federal Register on Friday, April 24, 2015 (80 FR 22954).

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing that submitted written comments by July 23, 2015, must submit an outline of the topics to be addressed and the amount of time to be denoted to each topic by Wednesday, August 19, 2015.

A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or in the Freedom of Information Reading Room (FOIA RR) (Room 1621) which is located at the 11th and Pennsylvania Avenue NW., entrance, 1111 Constitution Avenue NW., Washington, DC 20224.

Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document.

Background

The notice of proposed rulemaking (REG-115452-14) that is the subject of these corrections is under section 707 of the Internal Revenue Code.

As published, the notice of proposed (REG-115452-14) contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the notice of proposed rulemaking (REG-115452-14), that was the subject of FR Doc. 2015-17828, is corrected as follows:

1. On page 43652, in the preamble, first column, under the caption ADDRESSES, the eleventh line of the paragraph, the language “Washington, DC, or sent electronically, ” is corrected to read “Washington, DC, 20224 or sent electronically,”.

2. On page 43653, in the preamble, first column, the tenth line from the bottom of the first full paragraph, the language “gross income allocation in a nonpartner” is corrected to read “gross income allocation in a non-partner”.

3. On page 43655, in the preamble, second column, the third line from the bottom of the second full paragraph, the language “66-95 and revise Rev. Rul. 69-180,” is corrected to read “66-95 and Rev. Rul. 69-180,”.

4. On page 43657, in the preamble, third column, under the paragraph heading “Drafting Information” the third line of the paragraph, the language “Goldberg of the Office Assistant Chief” is corrected to read “Goldberg of the Office Associate Chief”.

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

The Clean Air Act at section 110(a)(2)(C) requires states to develop and submit to the EPA for approval into the state SIP, preconstruction review programs applicable to new and modified stationary sources of air pollutants for attainment and nonattainment areas that cover both major and minor new sources and modifications, collectively referred to as the NSR SIP. The CAA NSR SIP program is composed of three separate programs: PSD, NNSR, and Minor NSR. PSD is established in part C of title I of the CAA and applies in areas that are designated as meeting the National Ambient Air Quality Standards (NAAQS), i.e., “attainment areas,” as well as areas designated as “unclassifiable” because there is insufficient information to determine if the area meets the NAAQS. The NNSR SIP program is established in part D of title I of the CAA and applies in areas that are designated as not being in attainment of the NAAQS, i.e., “nonattainment areas.” The Minor NSR SIP program addresses construction or modification activities that do not emit, or have the potential to emit, beyond certain major source thresholds and thus do not qualify as “major” and applies regardless of the designation of the area in which a source is located. This particular SIP proposed action addresses only the PSD and NNSR major permitting programs.

The EPA regulations, 40 CFR 51.160-51.166, contain the criteria that states must satisfy for the EPA to approve the NSR programs as part of the SIP. In addition, there are several provisions in 40 CFR part 51 that apply generally to all SIP revisions. 40 CFR 51.160 establishes the enforceable procedures that must be a part of a NSR program. Sections 51.160-51.164 require a SIP revision to demonstrate that the adopted rules will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. Based upon our evaluation of the submittals, the EPA has concluded that the regulatory submittals, as ultimately revised, meet the requirements of the CAA section 110(a). Below are summaries of the individual SIP submittals from Secretary of the Louisiana Department of Environmental Quality (LDEQ).

The LDEQ submitted Louisiana Administrative Code (LAC) rule changes made in 1996. It includes final revised regulation LAC 33:III, sections 501, 504, 509, and 517. Section 504 is already part of the Louisiana SIP approved by the EPA on September 30, 2002, 2002 at 67 FR 61270. The EPA will act on section 517 in a separate action in the future.

The LDEQ submitted rule changes made in 1997. It includes changes to sections 501, 509, and 517. The EPA will act on sections 501 and 517 in a separate action in the future.

The LDEQ submitted rule changes made in 1998. It includes sections 509 and 603.

The LDEQ submitted rule changes made from 1999-2001. It includes section 509.B.2., which addresses certain Parishes as nonattainment for ozone. Sections 613 and 615 were already approved as part of the SIP on September 27, 2002, at 67 FR 60877.

The LDEQ submitted rule changes made in 2005 for Baton Rouge in section 504.A.6., covering the nonattainment NSR procedures.

The LDEQ submitted rule changes made in 2005 concerning the NSR Reform Program in sections 504 and 509. The submitted rules include, among other things, provisions for baseline emissions calculations, an actual-to-projected actual methodology for calculating emissions changes, options for plantwide applicability limits, and recordkeeping and reporting requirements. The changes do not include any portion of the Federal NSR Reform rule that was vacated by the US District Court of Appeals for the D.C. Circuit Court on June 24, 2005, concerning Clean Unit applicability test and Pollution Control Projects.

The LDEQ submitted rule changes made in 2005. It includes sections 501, 504, 505, 507, 509, and 613. The EPA will act on section 501, a minor NSR rule, and section 507, a title V rule that is not part of the SIP, in separate actions in the future. The EPA returned section 505 to LDEQ because it addresses the Acid Rain Program; the Acid Rain Program is not a title I program and therefore should not be included in the Louisiana SIP.

The LDEQ submitted a revision to the SIP's Alternative Emission Reduction Plan (“Bubble”) for Union Carbide Corporation, Taft Plant reflecting LDEQ's rescission of permit no. 1836T, effective on March 12, 2007. The EPA is proposing to approve this revision that codifies LDEQ's rescission of the permit for the alternative emission reduction plan (“Bubble”) for Union Carbide Corporation, Taft Plant.

The LDEQ submitted rule changes made in 2006. It includes sections 501, 504, 509, 513, 531, and 607. The EPA will act on sections 501, 513 and 531 in a separate action in the future because they concern minor NSR. In addition, on October 15, 2014, LDEQ removed from our consideration section 504.M.

The LDEQ submitted rule changes made in 2007, that included sections 501, 504, 505, 506, and 507. The EPA proposes to approve section 504 which contains a revision that requires all information submitted by air permittees be sent to the Office of Environmental Services.

The EPA will act on section 501 in a separate action in the future because it concerns minor NSR. The EPA will return section 505 to LDEQ because it addresses the Acid Rain Program Permitting Requirements, which are not part of a SIP. The approved the revisions to Section 506 on April 17, 2014 are found at 79 FR 21631. The EPA will act on section 507 in a separate action in the future because it concerns the title V program that is not part of a SIP.

The submittal also contains a rulemaking petition for the repeal of section 510, which was never part of the SIP. The repeal affects sections 603, 605, 607, 613, and 615 because those sections reference to LAC 33:III.510. In addition, to be consistent with the change to section 504, a change was made to section 613, which dictates that reports be submitted to the Office of Environmental Services.

The LDEQ submitted rule changes to sections 504 and 509 to address the PM2.5 NSR Implementation Rule. The rule submittal also revises the regulatory definition of “regulated pollutant” to address any pollutant for which there is a NAAQS and precursors to the formation of such pollutant when identified for regulation by the EPA. For NSR Reform purposes, LDEQ also repealed the definition of malfunction in response to the EPA's concerns expressed in our January 24, 2008, letter. The repeal of the definition addressed our concerns.

The LDEQ submitted revisions to section 509 that update the PSD rule to implement the Particulate Matter Less Than 2.5 Micrometers (PM2.5) Increments.

Table 1 below summarizes the changes that are in the SIP revision submittals. A summary of our evaluation of each section and the basis for our proposed approval is included in this rulemaking. The accompanying Technical Support Document (TSD) includes a detailed evaluation of the submittals and our rationale. The TSD may be accessed online at www.regulations.gov, Docket No. EPA-R06-OAR-2006-0131.

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

Under the 1990 CAA Amendments, the City of El Paso, Texas was designated by operation of law as nonattainment of the 1987 National Ambient Air Quality Standard (NAAQS) for particulate matter (PM) with an aerodynamic diameter less than or equal to a nominal ten micrometers (PM10) and classified as a moderate nonattainment area. The EPA approved on January 18, 1994 at 59 FR 02532, the El Paso PM10 Attainment Demonstration SIP revision. The SIP included, among other things, PM control measures and a Memorandum of Understanding between the City of El Paso and the State of Texas (MOU). The EPA approved three types of PM control measures as contingency measures because they went beyond reasonably available control measures and were not relied upon to show attainment or reasonable further progress (RFP). The three types of PM control measures approved as contingency measures were prescribed burning, residential burning, and fugitive dust control measures. The fugitive dust measures include not only controls for roads, streets, alleys, parking lots, construction and demolition sites, and materials handling, but also a requirement that existing unpaved alleys be paved at a rate of 15 miles per year and mechanical sweepers remove soil from roads four times per year in the city limits and six times per week in the central business district. The SIP MOU between the City of El Paso and the State of Texas outlines the responsibilities and regulatory requirements for both parties in implementing the dust control methods.

On March 7, 2012, the Texas Commission on Environmental Quality (TCEQ) submitted revisions to remove the requirement to pave alleys at the rate of 15 miles per year, and replace it with the following requirements: (1) All new alleys must be paved; (2) unpaved alleys cannot be used for residential garbage and recycling collection; and (3) recycled asphalt product (RAP) may be used as an alternate means of control for unpaved alleys. The revisions also changed the street sweeping frequency requirement from four times per year to three times per year in the city limits and from six times per week to four times per week in the central business district. TCEQ provided supplemental information dated December 3, 2014 updating the unpaved alleys inventory between 2010 through 2014.

Section 110(l) of the CAA states that the EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and RFP, or any other applicable requirement of the CAA. Contingency Measures are a required element of an attainment demonstration, to be implemented if the area fails to attain. In this case, the City implemented early the contingency measures for paving of alleys and street sweeping on an on-going basis since 1991, even though not required by the EPA. Implementation of these measures has continued even after the 1994 attainment date. To demonstrate noninterference, Texas provided a qualitative analysis of the emission reductions achieved by these measures coupled with evaluation of air quality data to show that the level of emissions provided for by the revised early implemented contingency measures would not interfere with attainment or RFP.

At the time of the EPA's approval of the paving of alleys as a contingency measure, there were an estimated 89 miles of unpaved alleys, and all unpaved roads in the city of El Paso were required to be paved in order to reduce this source category's projected 1994 PM10 emissions by 0.5 percent. The State documents that the inventory of unpaved alleys in El Paso has decreased from 66% of total alley miles in 1991, to 16% of total alley miles in 2010, with approximately 23 miles of unpaved alleys remaining. The supplemental information provided to the EPA shows that between 2010 through 2014, the percentage of unpaved alleys has continued to decrease to 13% of the total inventory, with approximately 17 miles of unpaved alleys remaining. A total of 72 alley miles have been paved, the estimated emissions reductions for 1994 were met in 1994, and emissions reductions continued after that date. In the SIP submittal, the City commits to continue paving alleys. The additional compliance option of using RAP as a paving material helps ensure continued reduction of the inventory of uncontrolled alleys. The EPA agrees that RAP can be effective in suppressing dust.

The overall inventory of unpaved alleys in El Paso has continued to decrease, and thereby further reductions in PM10 levels have occurred well beyond the decrease in inventory of unpaved alleys approved as the contingency measures. Furthermore, there will be no increase in unpaved alleys because the SIP revision requires that all new alleys be paved. As a practical matter, the EPA recognizes that a rate of 15 miles of paving per year could not be maintained unless the City were to create unpaved alleys in order to pave them.

As additional support for the change to the rate of paving of alleys, the submitted revision prohibits garbage collection in unpaved alleys; the City since 1997 stopped garbage collection in paved and unpaved alleys. The significant paving progress, the requirement to pave new alleys, and prohibition of garbage collection in alleys have reduced the overall amount of fugitive dust in the El Paso area. In the SIP submittal, the City commits to continue sweeping on a different schedule. Because the emissions reductions from paving and street sweeping are from already-implemented contingency measures, thus above what was needed to show attainment, and the reductions continue, the PM reductions from these measures are above and beyond what is required to show continued maintenance of the NAAQS.

The State's submittal also relied upon ambient monitoring data for the years 2007 through 2009 to demonstrate there will be no interference with attainment. The El Paso area continues to monitor attainment of the PM10 NAAQS based on data for all three years from 2011 through 2013. See the TSD for additional information on the monitoring data.

Because the fugitive dust controls are early implemented contingency measures, they were not relied upon for demonstrating attainment or RFP; paving of new alleys is required; the inventory of pre-existing unpaved alleys has been reduced from 66% of total alleys to 13%; and paving continues using the effective RAP, the EPA finds that the SIP revision will not interfere with the area's ability to continue to attain or maintain the affected NAAQS or other CAA requirements.

We are proposing to approve revisions to the Texas SIP that pertain to changes to the PM10 contingency measures in the City of El Paso. The State's revisions submitted on March 7, 2012 amend rule 30 TAC § 111.147(1)(E) by removing the requirement to pave alleys at the rate of 15 miles/year, and replace it with the following requirements:

(1) All new alleys must be paved;

(2) Alleys may not be used for trash pickup; and

(3) The use of recycled asphalt product as defined in § 111.145 and § 111.147(1) may be used as an alternate means of particulate matter control for alleys.

We also are proposing to approve 30 TAC § 111.145 and § 111.147(1) that define RAP, and 30 TAC § 111.147(2) that changes the sweeping frequency requirement from four to three time per year in the city limits and from six to four times per week in the El Paso central business district. We have evaluated the State's submittals and have determined that they meet the applicable requirements of the Clean Air Act and EPA regulations, and are consistent with EPA policy.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Texas regulations as described in the Proposed Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office.

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 proposes to approve 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);

• 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 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 proposed 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).

Regulated entities. The Administrator determined that this action is subject to the provisions of CAA section 307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section 307(d) apply to “such other actions as the Administrator may determine). These are amendments to existing regulations and could affect your facility if it is the subject of a CAA-related ruling by a federal court.

The information in this SUPPLEMENTARY INFORMATION section of this preamble is organized as follows:

Entities potentially affected directly by this proposal include the EPA and other governments that are delegated administrative authority to assist the EPA with the implementation of air program federal regulations. Entities potentially affected indirectly by this proposal include owners and operators of sources of air emissions that are subject to CAA regulations.

Do not submit this information to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Send or deliver information identified as CBI only to the following address: Tiffany Purifoy, OAQPS Document Control Officer (C404-02), Environmental Protection Agency, Research Triangle Park, NC 27711, Attention: Docket ID No. EPA-HQ-OAR-2014-0616.

When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

In addition to being available in the docket, an electronic copy of this proposed rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this proposed rule will be posted in the regulations and standards section of our New Source Review (NSR) Web site, under Regulations & Standards, at http://www.epa.gov/nsr.

To request a public hearing or information pertaining to a public hearing on this document, contact Ms. Pamela Long, Air Quality Policy Division, Office of Air Quality Planning and Standards (C504-03), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number (919) 541-0641; fax number (919) 541-5509; email address: [email protected].

The following acronyms, abbreviations and units are used in this preamble:

The purpose of this rulemaking is to revise the EPA's Regional Consistency regulations—40 CFR part 56. Specifically, we are proposing to add a provision to the Regional Consistency regulations to accommodate the implications of federal court decisions that result from challenges to locally or regionally applicable actions. As explained more fully below, revising the Regional Consistency regulations to accommodate the implications of such federal court decisions is consistent with general principles of common law, the judicial review provisions of the CAA, and CAA section 301(a)(2). Furthermore, the proposed revisions will help to foster overall fairness and predictability regarding the scope and impact of judicial decisions under the CAA.

The CAA calls for the EPA to implement the Act in partnership with state, local and tribal governments. See Mountain States Legal Found. v. Costle, 630 F.2d 754, 757 (10th Cir. 1980). While the roles of that partnership vary depending on the nature of the air pollution problem, generally the EPA issues national standards or federal requirements to address air pollution, and state, local and tribal air agencies (hereinafter referred to simply as “air agencies”) assume primary responsibility for implementing those standards and requirements. For example, the Act requires the EPA to establish, review and revise national ambient air quality standards (NAAQS) for certain common air pollutants. The Act then assigns air agencies responsibility for developing enforceable state implementation plans (SIPs) to meet those standards. The EPA is required to review each SIP to determine if it meets all of the applicable requirements of the CAA. If the SIP is approved, the air agency will implement the SIP in order to provide for attainment and maintenance of the NAAQS in areas under its jurisdiction. The EPA will provide technical and policy assistance to the air agency and also maintain an oversight role to ensure that the program is adequately implemented and enforced. If the EPA finds that an air agency has failed to submit a required SIP, or that an air agency's SIP is incomplete, or if the EPA disapproves a SIP in whole or in part, the CAA requires that the EPA promulgate a federal implementation plan (FIP) to provide for attainment and maintenance of the NAAQS in the corresponding area. The Act also requires preconstruction permits for major new and modified stationary sources of air pollution. In most areas, air agencies serve as the CAA permitting authority under an approved SIP; some air agencies implement the federal program under a delegation agreement; elsewhere, the EPA is the permitting authority under a FIP.

How the EPA carries out its role in this cooperative partnership under the CAA is influenced by how the EPA is organized. The EPA is composed of various headquarters offices, each of which is responsible for nationwide execution of our programs, and ten regional offices, each of which is responsible for the execution of our programs within several states and territories. See 40 CFR part 1, subparts A and C (for more information, see the EPA Organizational Chart located at http://www2.epa.gov/aboutepa/epa-organization-chart). In carrying out responsibilities under the CAA, the EPA Administrator relies on input from various offices in headquarters, especially those within the Office of Air and Radiation, and in the regional offices. In fact, the CAA provides the EPA Administrator with the authority to delegate powers and duties necessary to carry out the Act to EPA officials in both the headquarters and regional offices (CAA section 301(a)(1)). Returning to the NAAQS example, headquarters offices take the lead in promulgating the NAAQS, while regional offices are primarily responsible for working directly with air agencies to assist them in their SIP submissions and approval or disapproval of such SIPs. In certain circumstances, headquarters and regional offices consult in developing a proposed and/or final decision regarding approval or disapproval of the SIP.

In the 1977 CAA Amendments, Congress added section 301(a)(2) (42 U.S.C. 7601) in recognition of the role that staff from both headquarters and regions played in carrying out the Act's programs. CAA section 301(a)(2) required the EPA Administrator to promulgate regulations “establishing general applicable procedures and policies” for the EPA regional officers and employees to follow when carrying out activities delegated to them under the Act. Among other things, the CAA stated that these regulations should “assure fairness and uniformity in the criteria, procedures, and policies applied” by the EPA regional offices in their CAA activities and “provide a mechanism” to identify and standardize any inconsistent or varying criteria, procedures, and policies used by the EPA employees.

Thereafter, the EPA took a number of actions to promulgate the Regional Consistency regulations required in CAA section 301(a)(2). In 1978, the EPA issued an Advanced Notice of Proposed Rulemaking seeking comment on a number of consistency issues and inviting interested persons to participate in a series of public workshops to discuss the development of the Regional Consistency regulations (43 FR 4872). In 1979, after receiving those comments and listening to input provided at the public workshops from representatives of industry, state, and public interest groups, the EPA issued its Notice of Proposed Rulemaking for the Regional Consistency regulations (44 FR 13043). Finally, in 1980, the EPA promulgated its final Regional Consistency regulations in 40 CFR part 56.

As the EPA explained when it finalized the regulations, the “intended effect” of these regulations was “to assure fair and consistent application of rules, regulations and policy throughout the country by assuring that the action of each individual EPA Regional Office is consistent with one another and national policy” (45 FR 85400). Generally, the Regional Consistency regulations: (1) State the EPA policy of assuring “fair and uniform” application of the EPA rules, procedures, and policies necessary to implement and enforce the Act (see 56 CFR 56.3); (2) provide mechanisms for such application by headquarters and regional office employees (see 56 CFR 56.4 and 56.5, respectively); (3) require various headquarters offices to establish systems to disseminate policy and guidance relating to air programs (see 56 CFR 56.6); and (4) utilize the existing grants program for yearly evaluations of state performance in implementing and enforcing the Act (see 56 CFR 56.7).

The EPA has been acting under these regulations for more than 30 years to address consistency issues regarding various CAA programs, policy, and guidance. In this document, we are proposing to revise the rules to address a very specific consistency issue—how to treat Federal court decisions regarding locally or regionally applicable actions that may affect consistent application of national programs, policy, and guidance.

The EPA is undertaking this proposed revision to the Regional Consistency regulations, in part, as a result of a recent decision of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) in National Environmental Development Association's Clean Air Project v. EPA, No. 13-1035 (D.C. Cir., May 30, 2014). That litigation involved a December 2012 memorandum from EPA headquarters to the EPA regions regarding the limited scope of a court decision issued by the Sixth Circuit Court of Appeals addressing the EPA's interpretation of national permitting regulations as applied to a specific, local permitting decision.1 See Memorandum from Stephen D. Page, Director of the EPA's Office of Air Quality Planning and Standards, to Regional Air Division Directors, titled Applicability of the Summit Decision to the EPA Title V and NSR Source Determinations (December 21, 2012; available at http://www.epa.gov/region7/air/title5/t5memos/inter2012.pdf) (hereinafter, “December 2012 memorandum”). The December 2012 memorandum reflected the EPA application of a widely recognized legal doctrine referred to as intercircuit nonaquiescence, a practice in which a decision by a federal circuit court is binding only in those areas (in this case, specific states and the associated EPA regions) subject to the direct jurisdiction of the ruling circuit court. Intercircuit nonaquiescence is a practice that the EPA has historically followed with regard to decisions issued by both circuit and district courts and arising in local, non-nationwide actions.2 Therefore, in the December 2012 memorandum, the EPA continued that historic practice and noted that while the agency would follow the Sixth Circuit's decision in those states under the jurisdiction of the Sixth Circuit, the agency's longstanding interpretation of the permitting regulations addressed by the Sixth Circuit decision would continue to apply nationwide outside the Sixth Circuit.

On February 19, 2013, the National Environmental Development Association's Clean Air Project (NEDACAP) filed a petition for review with the D.C. Circuit Court on the December 2012 memorandum. NEDACAP alleged that the December 2012 memorandum violated both CAA section 301(a)(2) and the EPA's Regional Consistency regulations by establishing inconsistent permit criteria in different parts of the country.

In May 2014, the D.C. Circuit Court issued a decision vacating the December 2012 memorandum. The D.C. Circuit Court agreed with NEDACAP that the memorandum was inconsistent with the EPA's Regional Consistency regulations located at 40 CFR part 56.3 The court found that the Regional Consistency regulations “strongly articulate the EPA's firm commitment to national uniformity in the applications of its permitting rules” without any indication that “EPA intended to exempt variance created by a judicial decision.” Slip op. at 17. The D.C. Circuit concluded that the EPA's current regulations “preclude EPA's intercircuit nonaquiescence in this instance. . . .” Slip op. at 19.

The D.C. Circuit Court presented three options that the EPA could pursue in response to an adverse decision: Revise the underlying regulation; appeal the decision; or revise the Regional Consistency regulations. By making the revisions proposed in this rulemaking, the EPA is following one of the options suggested by the court. Slip op. at 18.

First, the court suggested that the EPA consider revising the underlying regulations at issue in the Sixth Circuit decision. Id While this approach may resolve the narrow issue that is the subject of the Sixth Circuit decision, and the EPA is in fact in the process of revising the permitting regulations that were the subject of the Sixth Circuit Court decision and the December 2012 memorandum, this approach generally would require a new rulemaking following each adverse court decision regarding an issue of local applicability. Each national rulemaking of this nature would likely take more than a year—and possibly several years—to complete. By revising the EPA's Regional Consistency regulations to fully allow for intercircuit nonaquiescence, the agency can through one rulemaking save the considerable time and resources potentially required by several narrow rulemakings.

Second, the court suggested that the EPA could have appealed the Sixth Circuit decision to the U.S. Supreme Court. Slip op. at 18. However, because the U.S. Supreme Court grants only about one percent of the petitions for certiorari (i.e., a petition requesting review of a lower court's decision) filed each year, there is a strong likelihood that the U.S. Supreme Court would decline to review a lower court's decision.4 Were we to rely solely on this option, absent review by the U.S. Supreme Court, a single federal court decision regarding an action of local applicability could change the EPA's policy nationwide unless and until the EPA undertook a rulemaking (see first option above). As discussed further below, this outcome would be inconsistent with the judicial review provisions of CAA section 307(b)(1).

Third, the court suggested that the EPA could revise the Regional Consistency regulations “to account for regional variances created by judicial decisions or circuit splits.” Slip op. at 18. This proposed rulemaking follows this option because we believe it most effectively addresses the issue presented by an adverse federal court decision addressing an action of local or regional applicability. As discussed further below, this proposed revision also would accommodate the EPA's proper and longstanding application of the doctrine of intercircuit nonaquiescence in future cases while eliminating the need for several lengthy, narrow rulemakings or review of a lower court's decision by the U.S. Supreme Court.

This section discusses the proposed revisions to the Regional Consistency regulations and our rationale for proposing those changes. We solicit public comment on the changes being proposed and will consider those comments in developing the final rule.

In this action, we propose three specific revisions to the general consistency policy put forward in the existing Regional Consistency regulations, 40 CFR part 56, to accommodate the implications of judicial decisions addressing “locally or regionally applicable” actions. Specifically, we propose to revise 40 CFR 56.3 to add a provision to acknowledge an exception to the “policy” of uniformity to provide that a decision of a federal court that arises from a challenge to “locally or regionally applicable” actions would not apply uniformly nationwide, and that only decisions of the U.S. Supreme Court and decisions of the D.C. Circuit Court that arise from challenges to “nationally applicable regulations . . . or final action” would apply uniformly nationwide. We also propose to revise 40 CFR 56.4 to add a provision to clarify that EPA headquarters offices' employees would not need to issue mechanisms or revise existing mechanisms developed under 40 CFR 56.4(a) to address federal court decisions arising from challenges to “locally or regionally applicable” actions. Lastly, we propose to revise 40 CFR 56.5(b) to clarify that EPA regional offices' employees would not need to seek headquarters office concurrence to act inconsistently with national policy or interpretation if such action is required by a federal court decision arising from challenges to “locally or regionally applicable” actions. In other words, through this rulemaking, the agency would be authorizing a region to act inconsistently with nationwide policy or interpretation to the extent that the region must do so in order to act consistently with a decision issued by a federal court that has direct jurisdiction over the region's action.

The manner in which the proposed revisions would affect the EPA's operational consistency may be explained by way of example related to a challenge to the title V applicability determination made by EPA Region 5 for Summit Petroleum's oil and gas operations on tribal land in Michigan. This challenge led to the December 2012 memorandum reviewed in the D.C. Circuit Court's NEDACAP decision. In the course of a source-specific title V permitting action, EPA Region 5 had determined that Summit Petroleum's oil and gas production wells and gas sweetening plant should be considered adjacent, based on their proximity and interrelatedness to one another, and thus emissions from these units were aggregated into a single source for title V permitting purposes (see 40 CFR 71.2). Summit Petroleum challenged that determination in the Sixth Circuit, and the court ultimately issued a decision that vacated and remanded Region 5's determination. Summit Petroleum Corp. v. U.S. EPA, 690 F3d 733 (6th Cir. 2012). Although the EPA argued that its longstanding interpretation of “adjacent” as used in the source determination regulations included consideration of an activities' functional interrelatedness, see id. at 744-75 (noting the EPA's citation to nine such source determinations spanning more than 30 years), the Sixth Circuit found that the term “adjacent” as used in the EPA's source determination regulations was unambiguous and related only to physical proximity, and thus could not include consideration of functional interrelatedness, see id. at 741-744. The EPA sought rehearing of the Summit case, but the request was ultimately denied on October 29, 2012.

Thereafter, a number of EPA regional offices sought guidance from headquarters offices regarding the impact of the Summit decision on various permitting actions, sometimes in an effort to answer questions they were receiving from state permitting authorities and permittees. Accordingly, in December 2012, an official in EPA headquarters issued a memorandum to the Air Division Directors at the EPA's regional offices explaining the applicability of the Summit decision to other EPA title V and NSR source determinations.5 The December 2012 memorandum described briefly the determination at issue in the Summit case, and the Sixth Circuit's decision. It explained that under the court's decision, the EPA could no longer consider interrelatedness in determining the adjacency of different emissions units in title V or NSR permitting decisions within the Sixth Circuit's jurisdiction (i.e., Michigan, Ohio, Tennessee and Kentucky). The December 2012 memorandum noted that the agency was “still assessing how to implement this decision in its permitting actions in the 6th Circuit,” and explained that outside the Sixth Circuit, the EPA intended to continue to apply its longstanding approach of considering both the proximity and interrelatedness of operations in determining whether emissions units are “adjacent” for permitting purposes.

If the proposed revisions to the Regional Consistency regulations had already been in place, this type of memorandum from EPA headquarters would not have been necessary because regions, states, and other potentially affected entities would have had certainty and predictability regarding the application of such a judicial decision—they would have known that this type of permit-specific, local and regional decision would only apply in the areas under the jurisdiction of the Sixth Circuit. Accordingly, with the changes proposed, it would have been clear to everyone that EPA regions would not be bound to apply the findings of the Summit decision in states outside the Sixth Circuit, and could continue to apply the longstanding practice that had not been successfully challenged in other federal circuit courts in their regions or decided nationally by the D.C. Circuit Court or U.S. Supreme Court.

If the proposed revisions to the Regional Consistency regulations are finalized, it will be clear that an adverse federal court decision in a case regarding locally or regionally applicable actions does not apply nationwide. As soon as these regulatory changes are effective, the EPA regional offices that are outside of the jurisdiction of a court will be able to apply the agency's nationwide practices in a consistent manner in any actions they take going forward, and they will not need to seek concurrence from headquarters offices for that continued application. Likewise, under the revised regulations, it would be clear that any such adverse decision that is or has been issued would be applied to those areas or parties that are under the issuing court's jurisdiction in any regional actions going forward. Moreover, those regions would not need to seek concurrence from EPA headquarters offices in order to follow the relevant decision, even if doing so would mean they were acting inconsistently with other EPA regional offices or national policy.

Note that these proposed regulatory changes, if finalized, would only apply to activities conducted at EPA offices (both regional and headquarters) and also to states delegated to implement EPA rules. The proposed revisions would not affect a state implementing its SIP-approved program, as they are bound to follow their own regulations.

In this rulemaking action, we are proposing to revise 40 CFR part 56 to “account for regional variances created by a judicial decision or circuit splits” by creating a specific accommodation to the general policy of uniformity of EPA actions. As explained more fully below, revising the Regional Consistency regulations to accommodate federal circuit and district court decisions that result from challenges to locally or regionally applicable actions, and thus providing for intercircuit nonaquiescence, is consistent with general principles of common law, CAA sections 301(a)(2) and 307(b)(1). It will also help to foster overall fairness and predictability regarding the scope and impact of judicial decisions under the CAA, and is a reasonable extension of the EPA's existing part 56 regulations.

Federal courts are courts of limited jurisdiction; they have only the authority to hear and decide cases granted to them by Congress. See generally U.S. Constitution, Article II, Section 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”). Thus, Congress must grant a federal court subject matter jurisdiction over the type of dispute in question.

A court of appeals generally hears appeals from the district courts located within its circuit, and the circuit is delineated by the states it contains. See generally 28 U.S.C. 41 (establishing the number and composition of the thirteen circuits; the composition is denoted by the names of states in a circuit).6 As a general matter, while an opinion from one circuit court of appeals may be persuasive precedent, it is not binding on other courts of appeals. See Hart v. Massanari, 266 F. 3d 1155, 1172-73 (9th Cir. 2001). As the Ninth Circuit explained, “[T]here are also very important differences between controlling and persuasive authority. As noted, one of these is that, if a controlling precedent is determined to be on point, it must be followed. Another important distinction concerns the scope of controlling authority. Thus, an opinion of our court is binding within our circuit, not elsewhere in the country. The courts of appeals, and even the lower courts of other circuits, may decline to follow the rule we announce—and often do. This ability to develop different interpretations of the law among the circuits is considered a strength of our system. It allows experimentation with different approaches to the same legal problem, so that when the Supreme Court eventually reviews the issue it has the benefit of “percolation” within the lower courts.” Id. (emphasis added). This last point is critical to an effective federal judiciary. By revising the regulations in part 56 to fully accommodate intercircuit nonaquiescence, the EPA is acting consistently with the purpose of the federal judicial system by allowing the robust percolation of case law through the circuit courts until such time as U.S. Supreme Court review is appropriate. The vast majority of cases that the U.S. Supreme Court hears arise from circuit splits.7 Thus, revising the Regional Consistency regulations to accommodate intercircuit nonaquiescence advances the federal judiciary's ability to experiment with different approaches to similar legal problems, and the development of a circuit split that could eventually lead to U.S. Supreme Court review of important issues under the CAA.

As the U.S. Supreme Court has explained, circuit splits are a common and acknowledged aspect of the federal legal system. E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977) (there is wisdom in “allowing difficult issues to mature through full consideration by the courts of appeals”). With regard to judicial consideration of the actions and decisions of federal agencies, a judge on the D.C. Circuit Court has noted that “after one circuit has disagreed with its position, an agency is entitled to maintain its independent assessment of the dictates of the statutes and regulations it is charged with administering, in the hope that other circuits, the U.S. Supreme Court, or Congress will ultimately uphold the agency's position.” Indep. Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248, 1261 (D.C. Cir. 1996) (J. Rogers, dissenting). Likewise, legal scholars have explained that “compel[ling] an agency to follow the adverse ruling of a particular court of appeals would be to give that court undue influence in the intercircuit dialogue by diminishing the opportunity for other courts of proper venue to consider, and possibly sustain, the agency's position.” S. Estreicher & R. Revesz, Nonaquiescence by Federal Administrative Agencies, 98 Yale L. J. 679, 764 (Feb.1989). As the U.S. Supreme Court has noted, preventing the government from addressing an issue in more than one forum “would substantially thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.” United States v. Mendoza, 464 U.S. 154, 160 (1984). In light of this important function, the U.S. Supreme Court has sought to preserve government discretion to relitigate an issue across different circuits. Id. at 163. Thus, though circuit conflict may undermine national uniformity of federal law to some degree for some period of time, it also advances the quality of decisions interpreting the law over time. See generally Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 446 (7th Cir. 1994) (J. Easterbrook, concurring) (agencies and courts balance whether “it is more important that the applicable rule of law be settled” or “that it be settled right”) (internal quotation and citation omitted).

We are also proposing these revisions to ensure that the Regional Consistency regulations are in harmony with the CAA's judicial review provisions. Congress specifically addressed in the CAA the ability of the various courts of appeals to hear appeals of decisions of the EPA. Congress created a very specific system of judicial review to address how the CAA is implemented. Specifically, Congress granted the authority to review agency actions of nationwide applicability under the CAA only to the D.C. Circuit Court. In 1977, at the same time it added the directive for the EPA to promulgate what would ultimately become the Regional Consistency regulations, Congress amended the Act to ensure that the D.C. Circuit Court, and no other circuit courts, would review nationally applicable regulations. Specifically, CAA section 307(b)(1) states that “A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 112, any standard of performance or requirement under section 111, any standard under section 202 (other than a standard required to be prescribed under section 202(b)(1)), any determination under section 202(b)(5), any control or prohibition under section 211, any standard under section 231, any rule issued under section 113, 119, or under section 120, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this Act may be filed only in the United States Court of Appeals for the District of Columbia.” CAA section 307(b)(1) (emphasis added). Congress then declared that other final CAA actions of the Administrator that are “locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit.” Id. For example, under this system, challenges to the EPA's regulations addressing prevention of significant deterioration (PSD)—which are nationally applicable—would be heard in the D.C. Circuit Court, while challenges to application of those PSD regulations to specific permitting actions—which are locally applicable—would be heard in the appropriate circuit court. See, e.g., Alabama Power v. Costle, 636 F.2d 323 (D.C. Cir. 1979) (challenge to the EPA's PSD rules) and Sierra Club v. EPA, 499 F.3d 653 (7th Cir. 2007) (challenge to the application of those rules to a specific permitting action).

The Committee Report accompanying the bill that ultimately became the CAA Amendments of 1977 states that the amendments to section 307(b)(1) make “it clear that any nationally applicable regulations promulgated by the Administrator under the Clean Air Act could be reviewed only in the U.S. Court of Appeal for the District of Columbia.” H.R.Rep. No. 95-294, p. 323 (1977). See also Harrison v. PPG Industries, Inc. et al., 100 S.Ct. 1889, 1896 (1980) (noting that the legislative history focused on the proper venue between the D.C. Circuit Court and other federal courts). Only “essentially locally, statewide, or regionally applicable rules or orders are to be reviewed in U.S. court of appeals for the circuit in which such locality, State or region is located.” H.R.Rep. No. 95-294, at 323. The legislative history notes that in adopting this revision, the committee was largely approving portions of recommendation 305.76-4(A) of the Administrative Conference of the United States, which deals with venue, as well as the separate statement of G. William Frick that accompanied the Administrative Conference's views. Id. at 324. In his statement, Mr. Frick stated that “Congress intended review in the D.C. Circuit of `matters on which national uniformity is desirable.' Among the reasons for this are the D.C. Circuit's obvious expertise in administrative law matters and its sensitivity to Congressional mandates.” 41 FR 56767, 56769 (1976). Mr. Frick went on to note that the D.C. Circuit Court had become quite familiar with the CAA, while other circuit courts lacked frequent exposure to the Act and its legislative history.

By placing review of nationally applicable decisions in the D.C. Circuit Court alone, Congress struck the balance between the countervailing values of improved development of the law on the one hand and national uniformity on the other. By consolidating review of nationally applicable final agency actions in the D.C. Circuit Court, Congress advanced the objective of “even and consistent national application” of certain EPA regulations (and other “final” actions) that are national in scope. Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 660 (D.C. Cir. 1975) (quoting S. Rep. No. 91-1196, 91st Cong., 2d Sess., 41(1970)). At the same time, Congress left the door open to intercircuit conflicts by granting jurisdiction over locally or regionally applicable “final” actions—like the applicability determination discussed in the example below—to the regionally-based courts of appeal. There is nothing in the legislative history to suggest that at the same time, Congress intended for the Regional Consistency provisions to somehow upset this careful balance and require the EPA to apply a locally or regionally applicable decision in all regions in order to maintain consistency.

This proposal would firmly reestablish the balance that Congress struck in CAA section 307(b)(1), to the extent the current Regional Consistency regulations upset that balance. Thus, this proposal would ensure that only the U.S. Supreme Court and the D.C. Circuit Court would issue decisions with mandatory nationwide effect, which is consistent with the clear statutory language of CAA section 307(b)(1), as well as its legislative history. As explained below, there is nothing in the language or intent of CAA section 301(a)(2) that trumps the clear statutory directive of CAA section 307(b)(1) establishing which courts have jurisdiction over which final agency actions.8 Therefore, we believe it is reasonable for the EPA to revise the Regional Consistency regulations to provide a specific accommodation for locally and regionally applicable court decisions.

A specific accommodation for locally and regionally applicable court decisions also is compatible with the statutory language and Congressional intent of CAA section 301(a)(2). As described above, those provisions require the EPA Administrator to develop regulations to “assure fairness and uniformity” of agency actions. Notably, there is nothing in the text of CAA section 301(a)(2) or in the limited legislative history of that provision that would suggest Congress intended for the requirement to promulgate fairness and uniformity regulations under CAA section 301 to either upset the balance Congress struck when establishing judicial review provisions in CAA section 307, or disrupt the general principles of common law that have allowed for the percolation of issues up through the various circuit courts, as discussed above. Section 301(a)(2) of the Act does not specifically discuss whether the fairness and uniformity objectives must be applied to all court decisions; nor does it address how the agency should respond to adverse court decisions. Congress also did not include language in CAA section 301 that would expressly prohibit the EPA from promulgating regulations that accommodate intercircuit nonaquiescence, consistent with CAA section 307.

In addition, the text of CAA section 301(a)(2)(A) necessitates a balance between uniformity and fairness; however, one does not always guarantee the other in all circumstances. These revisions would ensure the EPA has the flexibility to maintain that balance, as appropriate.

Fairness is defined by one source as “agreeing with what is thought to be right or acceptable; treating people in a way that does not favor some over others” (http://www.merriam-webster.com/dictionary/fairness). As we have already discussed, it is generally acceptable to apply a Circuit Court decision only in those states over which the circuit has jurisdiction. And, as explained using an example below, there are circumstances under which applying the decision of a lower court nationwide could favor sources located in the applicable lower court's jurisdiction over those located in other circuits. As such, a standard that would specifically allow for intercircuit nonaquiescence for all CAA decisions other than those issued by the D.C. Circuit Court in response to challenges of nationwide actions would provide a uniform standard for the EPA's application of court decisions that could be anticipated by those who implement the regulations and the regulated community.

It is not clear that the automatic, immediate nationwide application of one court's decision based on the specific facts of a locally-applicable decision would always be “fair” in the absence of the type of accommodation proposed here. For example, consider widget factories that have been diligently complying with the EPA's longstanding interpretation that the Act supports permit limits of 1.00 ppm or lower (i.e., more stringent) at widget extrusion units at major sources. However, in a challenge by a community group to a single widget factory permit in New England containing a limit of 1.00 ppm for the extrusion units, the First Circuit Court of Appeals issues a ruling with a different interpretation of the Act than the EPA's that supports a limit of 0.50 ppm or lower. A reasonable person might not find it fair to require then that all widget factories nationwide get permit revisions to establish limits of 0.50 ppm. Those factories would have been relying on the 1.00 ppm limit for years when planning budgets and making business decisions, and would likely find complying with the lower limit costly and disruptive. Arguably, fairness might be better served by limiting the impact of the First Circuit decision to the source whose permit was before the First Circuit and any other widget factories within the jurisdiction of the First Circuit, while the EPA determines how best to proceed.

While CAA section 301(a)(2) directed the EPA to create mechanisms for identifying and standardizing various criteria, there is nothing to suggest that such standardization requires exact duplication by all EPA regions in all circumstances, including regional responses to court decisions. CAA section 301 generally relates to procedures to be followed by the EPA employees in carrying out a delegation of authority from the Administrator. Paragraph 301(a)(1) of the Act authorizes the Administrator to delegate certain powers to other EPA officials, while section 301(a)(2) of the Act requires the Administrator to establish “general applicable procedures and policies for regional officers and employees” to follow in carrying out delegated authorities. CAA section 301(a)(1)-(2). While the statute further directs that such regulations shall be designed to, among other requirements, “assure fairness and uniformity in the criteria, procedures, and policies applied by the various regions in implementing and enforcing the chapter,” on its face, CAA section 301(a)(2) does not impose a standalone requirement to attain uniformity. Cf. Air Pollution Control Dist. v. EPA, 739 F.2d 1071, 1085 (6th Cir. 1984) (rejecting claim that CAA section 301(a)(2) establishes a substantive standard that requires similar or uniform emission limitations for all sources). In addition, the section does not direct the Administrator to revise an existing regulation following an adverse court decision in a local or regional case, or otherwise constrain the EPA's existing regulatory authority. Instead, the provision requires the EPA to establish procedures that apply to its regional officers and employees, but it does not address whether or how the EPA should address judicial decisions in those procedures. To the extent that Congress prioritized judicially-created uniformity, this was expressed in CAA section 307(b)(1)—which, as discussed above, allows for regional divergence among circuit courts—not CAA section 301(a)(2)(A).

Revising the Regional Consistency regulations to include a specific accommodation for intercircuit nonaquiescence in appropriate circumstances would also help to assure fairness and predictability in the implementation of the CAA overall. Such an accommodation would foster predictability by ensuring that, unless there is an affirmative nationwide and deliberate change in the EPA's rules or policies, lower court decisions would apply only in those states/areas within the jurisdiction of the lower court, with the exception of the D.C. Circuit Court reviewing final agency actions of national applicability, consistent with CAA section 307(b)(1). Under the revised Regional Consistency regulations, as proposed, a source subject to the CAA would, as usual, need to know and follow the law in the circuit where it is located, and the law of the D.C. Circuit Court and the U.S. Supreme Court. It would not be required to follow every CAA case in every court across the country to ensure compliance with the Act.

By revising the regulations, the EPA also accommodates the possibility that a split in the circuits could preclude the EPA from complying with both court decisions at once. Consider the following example: In a case involving a permit issued in New York, the Second Circuit upholds the EPA's longstanding position and, in doing so, confirms that the EPA's interpretation is compelled by the Act under Step One of Chevron. 9 As a result, the EPA continues to apply its longstanding interpretation, consistent with the Second Circuit's decision, in a permit issued in Alabama, an Eleventh Circuit state. In an appeal of that permit, however, the Eleventh Circuit holds that not only is the EPA's interpretation not compelled by the CAA, it is prohibited by the CAA. There are now two court decisions with conflicting Chevron Step One holdings—how could the EPA apply both of those decisions uniformly across the country? While the U.S. Supreme Court could review the issue, it might not. Further, even if the U.S. Supreme Court eventually resolved the conflict, there could be a multi-year period during which both decisions would remain applicable case law. This proposed revisions would acknowledge and address those instances in which the EPA may not be able to comply with two, conflicting decisions at the same time.

Moreover, sometimes court decisions reviewing a regulation or statute are reversed on appeal. In other cases, a court decision may contain a ruling that appears to invalidate a national rule in the context of a source-specific action, which is inconsistent with CAA section 307(b)(1), as explained above. When either outcome occurs, intercircuit nonaquiescence allows the EPA to limit the impact of the court's ruling while it undertakes other actions. For example, in Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007), the U.S. Supreme Court reversed the Fourth Circuit's implicit invalidation of the EPA's regulations in the context of an enforcement action. In that case, the U.S. Supreme Court found that the court of appeals had been too rigid in its insistence that the EPA interpret the term “modification” in its PSD regulations in the same way that the agency interpreted that term under the New Source Performance Standards program. Id. at 572-577. While it is true the U.S. Supreme Court eventually reversed the lower court, there was a 2-year period during which the Fourth Circuit's decision remained in place. Under the D.C. Circuit Court's interpretation of the existing Regional Consistency regulations, the EPA arguably would have been required to follow that later-reversed Fourth Circuit interpretation of its regulations nationwide during that 2 year period, even though that interpretation “read those PSD regulations in a way that seems to [the Supreme Court] too far a stretch for the language used.” Id. at 577.

As discussed earlier, since the U.S. Supreme Court only grants a very limited number of petitions for certiorari, it is highly likely that an adverse court of appeals decision could remain in place indefinitely. This possibility is exacerbated if the EPA is prohibited by its own regulations governing consistency from seeking to create a circuit split on the issue by non-acquiescing to the first adverse decision, and maintaining its national position before other courts. Moreover, if the lower court decision is based on an interpretation of the CAA statutory language, the EPA may not be able to “fix” the problem by revising the underlying regulation because the agency could arguably be required to follow the statutory construction set forth in the lower court's decision. Such a result would be inconsistent with the general structure of the federal judiciary, the specific structure of the Act's judicial review provision, and the general directive to assure both fairness and uniformity in CAA section 301(a)(2).

As noted above, because there is nothing in the statutory text of CAA section 301(a)(2) that would prohibit the EPA from revising the Regional Consistency regulations to specifically accommodate intercircuit nonaquiescence, we wish to evaluate that approach. Nothing in the preambles to the proposed and final Regional Consistency regulations indicates that either commenters or the EPA considered the question whether or how the rules would be applied following judicial decisions (see generally 44 FR 13043-048 and 45 FR 85400-405, respectively). In addition, while the D.C. Circuit Court's NEDACAP decision relied heavily on the general policy statements contained in 40 CFR 56.3 of the existing regulations—which broadly endorse the fair and uniform application of criteria, policy, and procedures by EPA regional office employees—there is nothing in those general statements or any other provisions of the regulations that mandate that the EPA adopt nationwide the interpretation of the court that first addresses a legal matter in all circumstances. The lack of such a mandate shows that the focused revisions we are proposing in this rulemaking are a natural extension of the agency's existing regulations.

The Regional Consistency regulations generally establish certain mechanisms with the goal of “identifying, preventing, and resolving regional inconsistencies” (45 FR 85400). For the EPA headquarters office employees, the regulations do this by targeting particular aspects of the Act that have the potential to present consistency problems—any rule or regulation proposed or promulgated under part 51, which sets forth requirements for the preparation, adoption and submittal of state implementation plans, and part 58, which contains requirements for measuring, monitoring, and reporting ambient air quality. However, the consistency regulations do not state a requirement for headquarters offices to apply these parts consistently in all circumstances. Instead the regulations direct headquarters office employees to develop mechanisms to assure that such rules or regulations are implemented and enforced fairly and uniformly by the regional offices. In so doing, the regulations do not state that headquarters employees are required to assure that a decision of one judicial circuit is always applied consistently in all EPA regions.

Likewise, the provisions of the Regional Consistency regulations that apply to the EPA regional office employees also do not contain a requirement that all regional officials act the same way in all circumstances, nor do they address judicial decisions. While the EPA could change any such requirement if it did exist in our regulations, we do not need to make such a change because the narrow revisions we are proposing in this rulemaking are a natural extension of the existing regulations, which state that regional officials must assure that actions are “carried out fairly and in a manner that is consistent with the Act and Agency policy” and are “as consistent as reasonably possible with the activities of other Regional Offices” 40 CFR 56.5(a)(1)-(2) (emphasis added).

As discussed above, Congress specifically addressed the role of and allowed for regional office divergence among circuit courts in CAA section 307(b)(1), and it would be both reasonable and fair to allow for inconsistencies among the actions of regional officials to respect those directives. Perhaps more importantly, the Regional Consistency regulations already allow for some variation between the regional offices. Specifically, 40 CFR 56.5(b) provides that regional officials “seek concurrence” from the EPA headquarters with respect to any interpretations of the Act, rule, regulation, or guidance that “may result in inconsistent application among the regional Offices.” Thus, the EPA has already acknowledged that certain regions may in some instances act inconsistently with others, and the revisions proposed in this action would simply be identifying and authorizing such inconsistency specifically when necessitated by a federal court decision reviewing an action of local or regional applicability.

In fact, the proposed revisions would further the overall goals of the existing Regional Consistency regulations by specifically identifying the possibility of potential inconsistent actions across the EPA regions, especially where multiple courts have already addressed an issue in different ways, and standardizing a response that can be followed by all the regions, such that regions only have to apply local and regional decisions issued by courts in those areas in which the court has jurisdiction.

As we have explained above, revising the Regional Consistency regulations to specifically accommodate circuit court decisions via intercircuit nonaquiescence is consistent with general principles of common law, and CAA sections 307(b)(1) and 301(a)(2). In addition, it will help to foster overall fairness and predictability regarding the scope and impact of judicial decisions under the CAA, and is a reasonable extension of the EPA's existing part 56 regulations. To the extent one could read the NEDACAP decision to imply that the Regional Consistency regulations would also require the EPA to apply district court decisions uniformly across the nation, the revisions also appropriately accommodate district court decisions, which are by their very nature even more limited in scope.

The federal district courts are the general trial courts of the federal judiciary system. See generally 28 U.S.C. 81-131 (establishing district courts for each of the 50 states and the District of Columbia). The district courts only have the authority to hear cases in a specific geographic area that raise specific claims for which Congress has granted the court jurisdiction. See generally 28 U.S.C. 1390-1431 (discussing the venue of the district courts) and 1330-1369 (discussing the jurisdiction of the district courts). A district court decision is based on the application of the law to the specific facts of a case, involving the parties to the case. Thus, while a decision from a circuit court is binding on those district courts located in the circuit, as a general matter, a decision from a district court is applicable only to those parties in the specific case in which it is issued and has no binding precedential effect on any other parties, courts or even other judges in the same district. See Hart v. Massanari, 266 F.3d at 1174. Given this very limited scope of district court decisions, it is reasonable to revise the Regional Consistency regulations to clearly accommodate district court decisions that result from specific locally or regionally cases in which the EPA is a party. Without such a revision, a party may try to argue that, pursuant to the Regional Consistency regulations, a single district court decision based on the specific facts in one case forms the basis for a uniform nationwide EPA position, elevating the impact of that district court decision well beyond the scope that is usually provided to district court decisions, and thus upsetting the general principles of U.S. common law upon which our federal judiciary is based.

Likewise, as noted above, Congress created a very specific system of judicial review to address how the Act is implemented, and that system is focused on challenges to specific final actions in the circuit courts. There is nothing in CAA section 307(b)(1) or in the statutory language requiring the EPA to promulgate regional consistency rules that would suggest that Congress intended district court decisions in specific cases to have a potentially broad binding effect on the agency. Not only would such an outcome elevate a district court decision to the same level of a D.C. Circuit Court decision under CAA section 307(b)(1), but it would be directly opposed to the idea of “fairness” put forward by Congress in CAA section 301(a)(2). If the Regional Consistency regulations cannot accommodate various district court decisions, a fundamental unfairness would arise when a district court decision applying its interpretation of an agency rule to the specific facts of one EPA case in Alaska could impact how the agency would address the same rule but with very different facts in Florida. Given the various reasons set forth above for limiting application of circuit court decisions resulting from challenges to locally or regionally applicable actions, and the fact that the scope of district court decisions in the federal court system is even more narrowly defined than that of circuit court decisions, it is only reasonable to revise the Regional Consistency regulations to clearly limit the application of district court decisions only to the specific parties and facts addressed in the decision.

Although the proposed rule revisions would make clear that the EPA is not obligated to follow judicial decisions of a federal circuit court addressing “locally or regionally applicable” actions in other circuits (or district court decisions in instances that do not involve parties to such decision), the proposal is not intended to preclude anyone from advocating that the agency exercise its discretion to follow such decisions in appropriate cases. The EPA recognizes that national policy can be influenced by insights and reasoning from judicial decisions and we do not mean to imply through this proposal that the agency would ignore persuasive judicial opinions issued in cases involving “locally or regionally applicable” actions. Such opinions may address issues of nationwide importance and could, in appropriate circumstances, lead the agency to adopt new national policy.

This document is proposing a rule revision to give the EPA flexibility to implement court decisions of a limited scope (i.e., those having local or regional applicability) while also allowing us to implement our national program under the CAA. The EPA did not conduct an environmental analysis for this rule because this rule would not directly affect the air emissions of particular sources. Because this rule will not directly affect the air emissions of particular sources, it does not affect the level of protection provided to human health or the environment. Therefore, this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) because it does not result in an impact greater than $100 million in any one year or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

This action does not impose any new information collection burden. The proposed rule would not create any new requirements for regulated entities, but rather provides flexibility to EPA in implementing numerous programs on a national basis.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

For purposes of assessing the impacts of this proposed action on small entities, small entity is defined as: (1) A small business as defined in the U.S. Small Business Administration size standards at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements directly on small entities. Entities potentially affected directly by this proposal include federal, state, local and tribal governments, none of which qualify as small entities.

We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. As noted previously, the effect of the proposed rule would be neutral or relieve regulatory burden.

This proposed rule 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, as specified in Executive Order 13132. This proposed rule would revise regulations that apply to the EPA, and any delegated state/local governments, only, and would not, therefore, affect the relationship between the national government and the states or the distribution of power and responsibilities among the various levels of government.

In the spirit of Executive Order 13132 and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from state and local officials.

This proposed rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. This proposed rule only affects our flexibility regarding judicial decisions as they apply to implementing air programs on a national basis. Thus, Executive Order 13175 does not apply to this rule.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 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. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through the OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, the EPA did not consider the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.

The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The proposed rule would provide flexibility to the EPA in issuing guidance to implement its regulations with respect to judicial decisions. The results of this evaluation are contained in section V of the preamble titled “Environmental Justice Considerations.”

Pursuant to section 307(d)(1)(V) of the CAA, the Administrator determines that this action is subject to the provisions of section 307(d). Section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.”

The statutory authority for this action is provided by section 301 of the CAA as amended (42 U.S.C. 7601).

For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: