Federal Register Vol. 80, No.177,

On March 10, 2015, DOE published in the Federal Register a notice of proposed rulemaking (NOPR) and public meeting to amend energy conservation standards for residential non-weatherized gas furnaces (NWGF) and mobile home gas furnaces (MHGF). 80 FR 13119. The proposed standards, which are expressed as minimum annual fuel utilization efficiencies (AFUE), are shown in Table I.1. These proposed standards, if adopted, would apply to all products listed in Table I.1 and manufactured in, or imported into, the United States on or after the date 5 years after the publication of the final rule for this rulemaking.

A number of stakeholders objected to a national standard at 92 percent AFUE, which would effectively only be able to be met by using condensing technology. The objections raised by stakeholders covered a wide range of issues, but the negative impacts of the proposed standards on some furnace consumers were highlighted by many stakeholders.

A letter dated June 8, 2015, signed by 121 members of the U.S. House of Representatives, expressed concern that a nationwide energy efficiency standard that effectively precludes a consumer from choosing to install a non-condensing furnace would result in many homeowners either abandoning the use of natural gas to heat their homes or paying substantially more for the installation of a furnace that meets the new standard. It stated that many families will be faced with the difficult choice of having to replace their non-condensing furnace with either a condensing furnace with higher installation costs or electric heat and accompanying higher monthly energy bills. (United States House of Representatives, No. 67 at p. 1) Comments from the Pennsylvania Chambers of Commerce, Business, and Industry, Meeks, Payne, Jr., Bishop, Jr., and Carrier make similar statements. (Pennsylvania Chambers of Commerce, Business, and Industry, No. 82 at p. 1; Meeks, No. 140 at p. 1; Payne, Jr., No. 75 at p. 1; Bishop, Jr., No. 76 at p. 1)

The American Gas Association (AGA), Goodman, and American Energy Alliance (AEA et al.) stated that even assuming DOE's analysis is correct, many consumers could incur costs under the proposed standard. They stated that, according to DOE's analysis, 20 percent of households nationwide would face higher life-cycle costs under the proposed standard, and in the replacement market, one-quarter of all households replacing their natural gas furnaces would see a life-cycle cost increase. (AGA, No. 118 at p. 27; AEA et al., No. 69 at p. 1; Goodman, No. 135 at p. 2) AGA, Goodman, and Southern Gas Association (SGA) added that consumers in the South and low-income families would be disproportionately impacted. (AGA, No. 118 at p. 27; Goodman, No. 135 at p. 2; SGA, No. 145 at p. 1)

The Air-Conditioning, Heating, and Refrigeration Institute (AHRI), Carrier, Rheem, and Ingersoll Rand expressed concern that the proposed standards will result in 10-20 percent of homes switching from gas furnaces to electric heat pumps because venting of a condensing gas furnace is difficult to impossible. (AHRI, No. 159 at p. 3; Carrier, No. 116 at p. 2; Rheem, No. 142 at p. 3; Ingersoll Rand, No. 156 at p. 2) AGA expressed a similar concern, and asserted that the resulting adverse energy and environmental impacts of this fuel switching are very substantial. (AGA, No. 118 at p. 28)

Several stakeholders, who expressed general support for the proposed standards and suggested more stringent standards could be justified, provided a recommendation for reducing negative impacts on some furnace consumers while maintaining the overall economic and environmental benefits of the standards. The American Council for an Energy-Efficient Economy (ACEEE) recommended that DOE establish a separate product class for small furnaces (tentatively those with an input capacity of 50,000 Btu/hour or less) and leave the standard level for these units at 80-percent AFUE, while adopting a higher standard level of 95-percent AFUE for larger furnaces. (ACEEE, No. 113 at p. 1) The Alliance to Save Energy made a similar recommendation, but referred to an input capacity of no more than 50,000 to 65,000 Btu/hour for smaller furnaces. (Alliance to Save Energy, No. 115 at p. 1) The Natural Resources Defense Council (NRDC) urged DOE to adopt an 80-percent AFUE standard level for furnaces below a specified maximum capacity threshold, and set the capacity threshold low enough that the national energy, economic, and environmental benefits are largely preserved while allowing consumers in small and moderately-sized, well insulated and weatherized homes in moderate and warm climates to have a non-condensing option. (NRDC, No. 134 at p. 2) AGLR stated that DOE should establish a separate product class for small furnaces with an input capacity of less than 45,000 Btu/hour, citing section 305(f) of EPCA as authority for DOE to establish separate product classes based on product capacity. (AGLR, No. 112 at pp. 15-16)

ACEEE also stated that creating two product classes based on furnace size would reduce the number of households that would experience net costs under the proposed standard (many of whom are in the south). ACEEE stated that many of the consumers who would experience net costs will have small furnaces and recommended that DOE specifically examine this issue and estimate the economics of separate standard levels as a function of furnace input capacity. ACEEE noted that a size threshold provides another option for some households with very high installation costs—if they weatherize their home and get the needed capacity below 50,000 Btu/h, they can avoid the extra installation cost of a condensing furnace. ACEEE added that a size threshold would not present the potential enforcement challenges associated with regional standards. (ACEEE, No. 113 at p. 3)

Although DOE believes that the standards proposed in the March 2015 NOPR meet the statutory criteria for amended standards, given the concerns and suggestions described above, DOE undertook an analysis of the consumer economics and national impacts of establishing separate standard levels for large and small residential furnaces. In so doing, it examined the effect of alternative size thresholds for a small furnace. Because the issues raised by stakeholders primarily concern NWGFs, DOE only considered that product in its analysis and did not examine mobile home gas furnaces. The analysis is described in section II of this NODA; section III provides the results of the analysis.

DOE notes that this NODA does not propose any energy conservation standards for residential furnaces. DOE may revise the analyses presented in today's NODA based on any new or updated information or data it obtains during the course of the rulemaking. DOE encourages stakeholders to provide any additional data or information that may improve the analysis.

DOE conducted an analysis of the consumer impacts (life-cycle cost and payback period) and national impacts (national energy savings and net present value of national benefits) of potential standard levels for the considered NWGF product classes. The tools used in preparing these analyses and their respective results are available at: https://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx?ruleid=62. Each individual spreadsheet includes an introduction that provides an overview of the contents of the spreadsheet. These spreadsheets present the various inputs and outputs to the analysis and, where necessary, instructions. Brief descriptions of the analyses and of the supporting spreadsheet tools are provided below.

If DOE were to consider adopting energy conservation standards for residential furnaces that set separate levels based on input capacity, it would do so in a future supplemental NOPR (SNOPR). DOE would also publish a technical support document (TSD) containing a detailed written account of the analyses performed in support of the SNOPR, which will include updates to the analyses made available in this NODA.

The analysis conducted for this NODA used the same analytical framework as the March 2015 NOPR.1 Key aspects of the present analysis and DOE's updates to the NOPR analysis are described in the sections below.

The analysis conducted for this NODA estimated impacts for the potential standard level combinations shown in Table II.1. The key aspect of this analysis is that only large furnaces would need to use condensing technology to meet the standard. Thus, households installing a small furnace would not need to incur the costs associated with installing a condensing furnace.

This NODA analysis used the same sample of residential furnace consumers as the March 2015 NOPR. Each sample household was assigned a furnace size (in terms of input capacity) based on a number of features, as discussed in section II.C. The share of households that would install a small furnace depends on how “small furnace” is defined in terms of input capacity. For this analysis, DOE considered the following small furnace definitions: ≤45 kBtu/hour, ≤50 kBtu/hour, ≤55 kBtu/hour, ≤60 kBtu/hour, and ≤65 kBtu/hour. In each case, large furnaces would be defined as all sizes above the given thresholds. The share of households that would install a furnace meeting a small furnace standard rises as the size cutoff in the small furnace definition increases, as illustrated in Table II.2.2

The engineering analysis establishes the relationship between the manufacturer production cost (MPC) and energy efficiency for residential furnaces. This relationship between MPC and energy efficiency serves as the basis for calculations performed in the other analysis tools to estimate the costs and benefits to individual consumers, manufacturers, and the nation. For each NWGF efficiency level that was analyzed, the MPC was estimated for four furnace capacities (60 kBtu/hour, 80 kBtu/hour, 100 kBtu/hour, and 120 kBtu/hour). For the NODA analysis, DOE updated the MPCs from the NOPR to incorporate the most recent available data for material,3 component, labor, and overhead costs, and also updated the MPCs to 2014$.

The life-cycle cost (LCC) and payback period (PBP) analyses determine the economic impact of potential standards on individual consumers who purchase a furnace in the expected compliance year (assumed to be 2021 for this analysis). The LCC is the total cost of purchasing, installing and operating a residential furnace over the course of its lifetime. DOE determines the LCC by considering: (1) The total installed cost to the consumer (which consists of manufacturer selling price, distribution channel markups, sales taxes, and installation costs); (2) the annual energy consumption (natural gas or LPG and electricity) of residential furnaces as they are used in the field; (3) the operating cost of residential furnaces (i.e., energy cost and maintenance and repair cost); (4) equipment lifetime; and (5) a discount rate that reflects the consumer cost of capital and puts the LCC in present-value terms. The PBP represents the number of years needed to recover the increase in purchase price of higher-efficiency residential furnaces through savings in the operating cost.

For each considered standards case, DOE measures the change in LCC relative to a no-new-standards case, which reflects the market in the absence of amended energy conservation standards, including market trends for equipment that exceeds the current energy conservation standards.

In the March 2015 NOPR and in today's NODA, DOE developed nationally-representative household samples for residential furnaces from the 2009 Residential Energy Consumption Survey (RECS).4 DOE analyzed the net effect of potential amended residential furnace standards on consumers by calculating the LCC savings and PBP for each household by efficiency level.

DOE performed the LCC and PBP analyses using a spreadsheet model combined with Crystal Ball 5 to account for uncertainty and variability among the input variables. Each Monte Carlo simulation consists of 10,000 LCC and PBP calculations using input values that are either sampled from probability distributions and household samples or characterized with single point values. The analytical results include a distribution of 10,000 data points showing the range of LCC savings for a given efficiency level relative to the no-new-standards case efficiency distribution. In performing an iteration of the Monte Carlo simulation for a given consumer, product efficiency is chosen based on its probability. If the chosen product efficiency is greater than or equal to the efficiency of the standard level under consideration, the LCC and PBP calculation reveals that a consumer is not impacted by the standard level. By accounting for consumers who already purchase more-efficient products, DOE avoids overstating the potential benefits from increasing product efficiency.

For the March 2015 NOPR, DOE assigned an input capacity for the existing furnace of each housing unit based on an algorithm that correlates the heating square footage and the outdoor design temperature for heating (i.e., the temperature that is exceeded by the 30-year minimum average temperature 1 percent of the time) with the distribution of input capacity of furnaces.6 DOE assumed that, for the new furnace installation, the input capacity would remain the same. DOE's analysis accounted for the typical over-sizing of furnace capacity (i.e., the furnace is larger than it needs to be to fulfill the building heating load).

If there is a separate standard for small furnaces, DOE expects that some consumers who would otherwise install a typically-oversized furnace would choose to down-size in order to be able to purchase a non-condensing furnace. For the NODA analysis, DOE identified those sample households that might down-size at the considered small furnace definitions. DOE first determined if a household would install a non-condensing furnace with an input capacity greater than the small furnace size limit without amended standards. In the standards case, DOE assumed that a fraction of such consumers would down-size to the input capacity limit for small furnaces.

For this NODA, DOE updated current energy prices and also the projection of future energy prices. Current average and marginal monthly energy prices are based on the latest data (2013 energy prices) from EIA (Form 861 data 7 to calculate commercial electricity prices, Natural Gas Navigator 8 to calculate commercial natural gas prices, and State Energy Data System 9 to calculate LPG prices). The update to 2013 energy prices had a very small impact on the LCC and PBP results.10 Future energy prices are based on the projection of average annual percent change in national-average residential natural gas and electricity prices in the Annual Energy Outlook 2015 (AEO 2015).

For this NODA, DOE updated the efficiency distribution in the no-new-standards case to reflect AHRI shipments data from 2010 to 2014.11 The update resulted in decreased fraction of consumers being impacted by an efficiency standard requiring efficiencies of 90-percent AFUE and above.12 DOE also made minor updates to the markups, product price trend, and the building shell efficiency and climate indexes used to adjust energy use. These are described in the LCC spreadsheet.

The national impacts analysis (NIA) estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from potential new standards. DOE calculated NES and NPV as the difference between a case without amended standards and each standards case.

DOE calculated the annual energy consumption for each case using the appropriate per-unit annual energy use data multiplied by the projected residential furnaces shipments for each year. To estimate impacts of separate standards for small and large furnaces, DOE needed to disaggregate NWGF shipments by input capacity. To do so, DOE assumed that the shares of each size category in NWGF shipments are the same as the shares estimated for the household sample. The shares were assumed to remain constant over time.

Cumulative energy savings are the sum of the annual NES determined for the lifetime of furnaces shipped during a 30-year period assumed to start in the expected compliance year. Energy savings include the full-fuel cycle energy savings (i.e., the energy needed to extract, process, and deliver primary fuel sources such as coal and natural gas, and the conversion and distribution losses of generating electricity from those fuel sources).

To develop the national NPV of consumer benefits from potential energy conservation standards, DOE calculated projected annual operating costs (energy costs and repair and maintenance costs) and annual installation costs for the no-new-standards case and the standards cases. DOE calculated annual energy expenditures from annual energy consumption using forecasted energy prices in each year. DOE calculated annual product expenditures by multiplying the price per unit times the projected shipments in each year.

The aggregate difference each year between operating cost savings and increased installation costs is the net savings or net costs. DOE multiplies the net savings in future years by a discount factor to determine their present value. DOE estimates the NPV of consumer benefits using both a 3-percent and a 7-percent real discount rate, in accordance with guidance provided by the Office of Management and Budget (OMB) to Federal agencies on the development of regulatory analysis.13

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-3628; Directorate Identifier 2015-NM-025-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.

On May 31, 2012, we issued AD 2012-12-04, Amendment 39-17083 (77 FR 36134, June 18, 2012), for certain The Boeing Company Model 737-300, -400, and -500 series airplanes. AD 2012-12-04 requires repetitive external detailed inspections and nondestructive inspections to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R, between station (STA) 400 and STA 460, and repair if necessary. AD 2012-12-04 resulted from reports of crack findings of the fuselage skin at the chem-mill steps. We issued AD 2012-12-04 to detect and correct fatigue cracking of the fuselage skin panels at the chem-mill steps, which could result in sudden fracture and failure of the fuselage skin panels, and consequent rapid decompression of the airplane.

Structural fatigue damage is progressive. It begins as minute cracks, and those cracks grow under the action of repeated stresses. This can happen because of normal operational conditions and design attributes, or because of isolated situations or incidents such as material defects, poor fabrication quality, or corrosion pits, dings, or scratches. Fatigue damage can occur locally, in small areas or structural design details, or globally. Global fatigue damage is general degradation of large areas of structure with similar structural details and stress levels. Multiple-site damage is global damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Global damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site-damage and multiple-element-damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane, in a condition known as widespread fatigue damage (WFD). As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.

In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

The preamble to AD 2012-12-04, Amendment 39-17083 (77 FR 36134, June 18, 2012), specified that we considered the requirements “interim action.” AD 2012-12-04 explained that we might consider further rulemaking if final action is later identified. We now have determined that it is necessary to initiate further rulemaking to require modification of the fuselage skin at crown stringers S-1 and S-2R, and to reduce inspection thresholds and repetitive intervals for certain airplanes.

We reviewed Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015. The service information describes procedures for repetitive external detailed inspections and non-destructive inspections to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R, between STA 400 and STA 460, and repair of any cracking. The service information also describes procedures for a modification of the chem-milled steps at the locations identified, including related investigative actions 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.

Although this proposed AD does not explicitly restate the requirements of AD 2012-12-04, Amendment 39-17083 (77 FR 36134, June 18, 2012), this proposed AD would retain all of the requirements. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in this proposed AD. 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 Bulletin.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3628.

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 action, 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 compliance time for the modification specified in this proposed AD for addressing WFD was established to ensure that discrepant structure is modified before WFD develops in airplanes. Standard inspection techniques cannot be relied on to detect WFD before it becomes a hazard to flight. We will not grant any extensions of the compliance time to complete any AD-mandated service bulletin related to WFD without extensive new data that would substantiate and clearly warrant such an extension.

Although Boeing Alert Service Bulletin 737-53A1293, Revision 3, dated January 23, 2015, specifies that operators may contact the manufacturer for disposition of certain repair conditions, 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.

We estimate that this proposed AD affects 186 airplanes of U.S. registry.

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

We have received no definitive data that would enable us to provide a cost estimate for the on-condition actions specified in this proposed AD.

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

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 have 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 that the 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 the 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 modifies the air traffic service route structure in the northeast United States to maintain the efficient flow of air traffic.

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 (FAA Docket No. FAA-2015-3361 and Airspace Docket No. 15-AEA-4) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2015-3361 and Airspace Docket No. 15-AEA-4.” The postcard will be date/time stamped and returned to the commenter.

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

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for 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 office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA, 30337.

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 to modify the descriptions of jet routes J-6, J-97 and J-222; and VOR Federal airways V-196 and V-489, due to the planned decommissioning of the Plattsburgh, NY, VORTAC. The proposed route changes are outlined below.

J6 Jet route J-6 extends from Salinas, CA, across the United States to Albany, NY, then terminates at Plattsburgh, NY. The FAA proposes to terminate the route at Albany, eliminating the segment between Albany and Plattsburgh.

J-97 Jet route J-97 extends between the SLATN fix and Plattsburgh, NY. The FAA proposes to terminate the route at Boston, MA, eliminating the segment between Boston and Plattsburgh.

J-222 Jet route J-222 extends between Robbinsville, NJ, and Plattsburgh, NY. The FAA proposes to terminate the route at Cambridge, NY, eliminating the segment between Cambridge and Plattsburgh.

V-196 VOR Federal airway V-196 extends from Utica, NY, to Saranac Lake, NY to Plattsburgh, NY. The FAA proposes to terminate the route at the intersection of the Saranac Lake, NY 058°(T) and the Burlington, VT 296°(T) radials, eliminating the segment between that intersection and Plattsburgh.

V-489 VOR Federal airway V-489 extends between the intersection of the Sparta, NJ 300°(T) and the Huguenot, NY 196°(T) radials and Plattsburgh, NY. The FAA proposes to terminate the route at Glens Falls, NY, eliminating the segment between Glens Falls and Plattsburgh.

Except for VOR Federal airway V-196, all radials in the route descriptions below are stated in True degrees. Both True and Magnetic degrees are used to describe the intersecting radials in V-196 since this intersection would be added to the airway description.

Jet routes are published in paragraph 2004, and VOR Federal airways are published in paragraph 6010(a), 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 jet routes and VOR Federal airways listed in this document would be subsequently published in the Order.

The FAA has determined that 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will 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.

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

The Act defines “disability” for titles II and XVI as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 1 The Act also states that “[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.2

We use a five-step sequential evaluation process to determine whether an adult is disabled under the Act.3 If we can make a determination or decision whether a claimant is disabled or not disabled at a step, we do not go on to the next step.4 If we cannot make a determination or decision at a step, we continue to the next step in the sequential evaluation process.5

The vocational factors of age, education, and work experience are relevant at step 5 when we consider a claimant's capacity to adjust to other work. Specifically, at step 5 we consider whether a claimant's impairment(s) prevents him or her from doing any other work that exists in significant numbers in the national economy, considering his or her residual functional capacity (RFC) 6 and the vocational factors of age,7 education,8 and work experience.9 If we find that the claimant does not have the capacity to adjust to other work that exists in significant numbers in the national economy, we find the claimant disabled. If we find that the claimant has the capacity to adjust to other work, we find the claimant not disabled. We do not consider an individual's ability to obtain work.10

To help make our step 5 determination, we use both the medical-vocational profiles (the profiles) 11 and the medical-vocational guidelines (the guidelines) when appropriate.12 The profiles and the guidelines are based on several assumptions:

• We consider aging to be a limiting factor in a person's ability to adjust to other work.

• We consider higher levels of education and certain types of recent education to enhance a person's ability to adjust to other work.

• We consider that an individual who has done skilled or semi-skilled work may have acquired skills and abilities from that past work. Those acquired skills and abilities may be transferable to other work. Under our rules, unskilled work does not convey transferable skills to an individual.

We are soliciting public comments along with supporting research and data about how vocational factors such as age, education, and work experience affect an individual's ability to adjust to other work that exists in the national economy. In addition to seeking public input on the specific questions below, we are also asking for public assistance to help identify research and data to assist us.

We will consider the public comments in addition to other input, research, and data that we obtain through other methods. This ANPRM is one component of the our larger effort to collect information about how we consider the vocational factors of age, education, and work experience when we determine whether an individual can adjust to other work. We commissioned several studies and are examining how the vocational factors influence an individual's ability to adjust to doing new work. For your consideration while preparing your comments to this ANPRM, these studies are included in the References section of this notice, and are included in the docket folder for this rule at http://www.regulations.gov. In addition, we are undertaking outreach efforts to engage federal and private stakeholders, including the scientific community. We will consider the results of these information-gathering efforts collectively when we evaluate how to consider the vocational factors in determining whether an individual can adjust to other work.

When we determine whether an individual can adjust to other work, we consider an individual's functional capacities and limitations, the occupational base in the national economy, and the vocational factors of age, education, and work experience. We have ongoing activities related to each of these considerations. Although complementary, our activities related to functional limitations and the occupational base are independent and are occurring on separate timeframes from our effort on the vocational factors. Accordingly, we are narrowing the scope of this ANPRM to solicit public comments on only the vocational factors. We are not soliciting public comments on how we assess an individual's functional limitations. We are also not soliciting public comments in this notice on sources of occupational data we use at step 5, such as the Dictionary of Occupational Titles, because we are working with the Bureau of Labor Statistics (BLS) to test the collection of updated occupational information that we intend to use to develop a new occupational information system.13

Specifically, given today's work environment and advances in technology and medicine, we are seeking public input, research, and data about the following:

1. Is the factor of age predictive in determining an individual's ability to work or to adjust to other work? If it is predictive, what are the vocationally significant age milestones we should consider? If it is not predictive, what data support that assertion?

2. When determining if age affects an individual's ability to work or to adjust to other work, what other factors or combination of factors should we consider?

3. Does an individual's educational level affect an individual's ability to do work or to adjust to other work? If so, how? What data support the conclusion that an individual's educational level does or does not affect an individual's ability to do work or to adjust to other work? How does literacy affect an individual's ability to do work or adjust to other work?

4. Does the skill level of an individual's past work affect his or her ability to adjust to other work? If so, how? What data support the conclusion that the skill level of an individual's past work does or does not affect an individual's ability to do work or to adjust to other work? How does the skill level of an individual's past work considered along with an individual's educational level affect this adjustment?

5. Are there other vocational factors or combinations of vocational factors that we should consider when determining an individual's ability to do work or to adjust to other work?

We will consider all relevant public comments we receive about this notice, but we will not respond directly to them. If we decide to propose specific revisions to the vocational factors we consider when we determine an individual's ability to do work or to adjust to other work, we will publish a notice of proposed rulemaking in the Federal Register, and you will have a chance to comment on any revisions we propose.

External reviews of security at Tyndall AFB identified the lack of jurisdiction to respond to threats from the waterways as a major weakness. Tyndall AFB does not currently have the authority to restrict access to the shoreline of Tyndall AFB if needed to respond to a security threat. The purpose of this regulatory action is to establish a restricted area in the waters surrounding portions of Tyndall AFB that would only be activated on a temporary basis in response to specific and credible security threats. Additionally this amendment provides an administrative correction to the existing regulation at 33 CFR 334.660.

The Corps authority to establish the restricted area is Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3).

Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3) the Corps is proposing to revise the regulations at 33 CFR part 334 by establishing a restricted area in the waters surrounding Tyndall AFB. This amendment will allow the Installation Commander, Tyndall AFB to temporarily restrict the passage of persons, watercraft, and vessels in waters contiguous to this facility when a specific and credible security threat is identified, providing greater security for personnel and equipment during those periods. The administrative correction at 33 CFR 334.660(b)(3) will clarify who is responsible for enforcing the provisions of § 334.660.

This proposed rule replaces the proposed rule that was originally published in the May 9, 2013, issue of the Federal Register (78 FR 27126). The Corps received many comments on that proposed rule, and after those comments were fully considered, Tyndall AFB made substantial changes to its request for a new restricted area. Those changes are incorporated into this proposed rule.

a. Review Under Executive Order 12866. The proposed rule is issued with respect to a military function of the Department of Defense and the provisions of Executive Order 12866 do not apply.

b. Review Under the Regulatory Flexibility Act. This rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice-and-comment rulemaking requirements under the Administrative Procedure 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 (i.e., small businesses and small governments). Tyndall AFB has approximately 129 miles of unprotected shoreline, including several areas where the lack of security or restriction on access leaves Tyndall AFB personnel and resources vulnerable to unauthorized activities. Therefore, the proposed restricted area regulation is necessary to implement an enhanced threat security plan for Tyndall AFB which will allow for the temporary activation of one or more portions of the restricted area as necessary to provide the appropriate level of security required to address the specific and credible threat triggering the need for the activation. The temporary restrictions in the proposed rule are also necessary to protect the public from potentially hazardous conditions that may develop as a result of military use of the area. When the restricted area is activated, small entities can continue to use the navigable waters surrounding Tyndall AFB that are outside of the restricted area. After considering the economic impacts of this proposed restricted area regulation on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. We are interested in the potential impacts of the proposed regulation on small entities and welcome comments on issues related to such impacts.

c. Review Under the National Environmental Policy Act. Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact on the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered.

d. Unfunded Mandates Act. This regulation does not impose an enforceable duty among the private sector and, therefore, is not a Federal private sector mandate and is not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Reform Act (Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1501 et seq.). We have also found under Section 203 of the Act, that small governments will not be significantly or uniquely affected by this regulation.

For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

I. General Information What should I consider as I prepare my comments for EPA?

1. Submitting Confidential Business Information (CBI). Do not submit CBI to 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 on a disk or CD ROM that you mail to 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.

2. Tips for preparing your comments. 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 and organize your comments;

• 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; and

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

A. On March 31, 2010 the State of Colorado submitted a SIP revision containing amendments to the Common Provisions Regulation sections I.A., I.B., I.C., I.D., I.E., I.F., I.G., II.B., II.C., II.E., II.H. and II.J. The amendments update the definition of “negligibly reactive volatile organic compound,” add clarification to the definition of “volatile organic compound,” and make minor editorial changes. The Commission adopted the amendments on December 17, 2009 (effective January 30, 2010).

B. On May 16, 2012 the State submitted a SIP revision containing amendments to Regulation Number 3, Parts A, B and D. The amendments modify the permitting requirements for stationary sources in Colorado by: (1) Incorporating into state regulations changes to the federal NSR Program related to the PM2.5 National Ambient Air Quality Standards (NAAQS); (2) revising state regulations to address past rule revisions that were disapproved or commented on by EPA; (3) deferring permitting requirements for biogenic sources of carbon dioxide emissions to ensure consistency with federal greenhouse gas permitting requirements; and (4) making miscellaneous revisions and minor editorial changes. The Commission adopted the amendments on October 20, 2011 (effective December 15, 2011).

C. On May 13, 2013 Colorado submitted a SIP revision containing amendments to Regulation Number 3, Parts A, B and D. The amendments make administrative revisions to the permitting requirements for stationary sources in Colorado and make minor editorial changes. The Commission adopted the amendments on December 20, 2012 (effective February 15, 2013).

D. On April 24, 2014 EPA published a final rule (79 FR 22772) in the Federal Register approving Colorado's May 25, 2011 SIP revisions to the Common Provisions Regulation related to greenhouse gas and minor editorial changes to the Common Provisions Regulation and Regulation Number 3 Parts A, B and D (adopted October 10, 2010). This action includes regulatory text and IBR material intended to be a part of EPA's April 24, 2014 final rule but inadvertently excluded.

We evaluated Colorado's March 31, 2010, May 16, 2012 and May 13, 2013 submittals regarding revisions to the State's Common Provisions Regulation and Regulation Number 3, Parts A, B and D. We propose to approve some of the revisions and not act on others.

The State's March 31, 2010 SIP submittal contained amendments to the Common Provisions Regulation and includes the following types of amendments to the State's air quality rules: Adding compounds to the definition of “negligibly reactive volatile compounds” (NRVOC) and clarifying NRVOC and volatile organic compound (VOC) testing methodologies within the definition of “volatile organic compound.” In addition, the State subsequently requested 1 a revision to the definition of “incinerator.” The revisions also make minor editorial changes.

EPA's policy is that compounds of carbon with a negligible level of reactivity need not be regulated to reduce ozone (42 FR 35314). EPA determines whether a given carbon compound has “negligible” reactivity by comparing the compound's reactivity to the reactivity of ethane. EPA lists these compounds in its regulations at 40 CFR 51.100(s), and excludes them from the definition of a “VOC.” The chemicals on this list are often called “negligibly reactive.” EPA may periodically revise the list of negligibly reactive volatile compounds or NRVOCs to add or delete compounds from the list. In its March 31, 2010 submission, the State adds the following compounds: “(1)1, 1, 1, 2, 2, 3, 4, 5, 5, 5, -decafluoro-3-methoxy-4-trifluoromethyl-pentane” 2 ; “Propylene carbonate”; and “Dimethyl carbonate,” as well as the common names or chemical structure: “n-C3F7OCH3, HFE-7000”; “HFE-7500”; “HFC 227ea”; “HCOOCH3”; and “HFE-7300” to the list of NRVOCs. Subsequent to the March 31, 2010 submission, the State also requested 3 to add “1, 1, 1, 2, 2, 3, 3, -heptafluoro-3-methoxy-propane”; “3-ethoxy-1, 1, 1, 2, 3, 4, 4, 5, 5, 6, 6, 6-dodecafluoro-2(trifluoromethyl)hexane”; “1, 1, 1, 2, 3, 3, 3-heptafluoropropane”; and “Methyl formate” to the list of NRVOCs 4 in section I.G. EPA is proposing to approve these additions to the State's Common Provisions Regulation list of NRVOCs per our earlier actions (72 FR 2193; 74 FR 3437; 78 FR 9823) updating EPA's listing of organic compounds determined to have negligible photochemical reactivity at 40 CFR 51.100(s)(1).

The March 31, 2010 revision to the Common Provisions Regulation also revises the definition of “VOC” to include test methods specified in the State's SIP, a Title V Permit, 40 CFR part 51, subpart I or appendix S, and 40 CFR part 52. In accordance with 40 CFR 51.100(s)(2) and (4), EPA proposes to approve revisions to the definition of “VOC” in section I.G. of the Common Provisions Regulation.

In addition to modifying the definitions of NRVOC and VOC, the State also subsequently requested revisions to the definition of “incinerator” in section I.G. The revisions exclude from the definition of “incinerator” devices commonly called Air Curtain Destructors used to burn 100% wood waste, clean lumber, or yard waste generated as a result of projects to reduce the risk of wildfire and not operated at a commercial or industrial facility. The revisions also state that any air curtain destructor (also called air curtain incinerator in the federal rule) subject to 40 CFR part 60 incinerator requirements are also considered incinerators under the State's revised Common Provisions Regulation definition of “incinerator” per EPA's final rule (70 FR 74870) for New Source Performance Standards (NSPS) for new and existing “other” solid waste incineration units. We propose to approve these revisions.

The March 2010 submittal also makes minor editorial revisions to the Common Provisions Regulation. We are proposing to approve the minor editorial revisions in sections I.A., I.B., I.C., I.D., I.E., I.F., I.G., II.B., II.C., II.E.2. and II.H as shown in Table 1. We are not acting on the minor editorial revisions in II.J. as they are either already in the approved SIP or in sections that EPA previously disapproved (Table 2). Also, we note that the March 31, 2010 submittal is missing a quotation mark in Section I.B. and contains the incorrect abbreviation for “microgram” in Section I.F. The State is aware of these errors and will make the necessary corrections in a future submittal.5

Finally, the March 31, 2010 submission contains text not currently in the Common Provisions section of the SIP yet also not identified by the State as a revision. This text includes the addition of “Tertiary Butyl Acetate (2-Butanone)” to the list of NRVOCs in section I.G. as well as the last sentence in the definition of “VOC” regarding tertiary butyl acetate as a VOC for the purposes of photochemical dispersion monitoring. On November 29, 2004 (69 FR 69298), EPA revised its definition of VOC to exclude tertiary butyl acetate for purposes of VOC emissions limitations or VOC content requirements; however, tertiary butyl acetate continues to be a VOC for purposes of all recordkeeping, emissions reporting, and inventory purposes as reflected in 40 CFR 51.100(s)(1) and (s)(5). Therefore, EPA is not including these State additions with our proposed approval of IBR material.

The State's May 16, 2012 SIP submittal includes the following types of amendments to Regulation Number 3, Parts A, B and D: Revisions to State permitting requirements for stationary sources to incorporate changes to the federal NSR Program related to PM2.5; revisions to address past rule revisions that were disapproved or commented on by EPA; and deferral of the permitting requirements for biogenic sources of carbon dioxide emissions to ensure consistency with federal greenhouse gas permitting requirements. The revisions also make several miscellaneous changes along with minor editorial changes.

The May 16, 2012 submittal incorporates into Regulation Number 3, Parts A, B and D changes to the federal NSR Program related to the PM2.5 NAAQS. Specifically, the State revised the definition of “criteria pollutants” to address PM2.5 precursors in Part A (I.B.17.) and revised the definition of “significant” to address PM2.5 in Part D (II.A.42.). We are proposing to approve both of these revisions to definitions to address PM2.5. In addition, the State incorporated portions of 40 CFR 51.165(a)(9)(i)-(iv) into the State's Requirements Applicable to Nonattainment Areas for Major Sources in Part D of Regulation Number 3 (V.A.3.). This section describes the emissions offsets and emissions offset ratios required prior to the date of commencement of operations. We are proposing to approve this revision. We are also proposing to approve the State's revision to the Table of Significance Levels for nonattainment areas in section VI.D.2. of Part D to address PM2.5. Finally, the State added PM2.5 increments to their ambient air increments in section X.A.1. of Part D and added PM2.5 increments to their Class I variances maximum allowable increases in section XIII.D. of Part D. These revisions align with 40 CFR 52.21(b)(58)(c) and 52.21(p)(5), respectively, and we therefore propose to approve these revisions.

The State also revised the definition of “Subject to Regulation” in Part A of Regulation Number 3 in their May 16, 2012 submittal. In section I.B.44.b.(i) the State added language to instruct how to compute greenhouse gas emissions to exclude carbon dioxide emissions resulting from the combustion or decomposition of non-fossilized and biodegradable organic material originating from plants, animals, or micro-organisms. This addition is consistent with EPA's biogenic deferral regulation found at 40 CFR 52.21(b)(49)(a)(ii); therefore, we are proposing to approve the revision.

The May 16, 2012 submission also makes revisions to Regulation Number 3, Part B based on EPA's comments on previous actions (76 FR 6331; 79 FR 8632). These revisions include reverting back to previously approved SIP exemption language for stationary internal combustion engines that have uncontrolled actual emissions of less than five tons per year for construction permit requirements (II.D.1.c.) 6 and clarifying exemptions associated with oil and gas produced wastewater impoundments (II.D.1.m). We are proposing to approve these revisions.

Within section VI.B.3. of Part D of the May 16, 2012 submittal, the State revised the PM10 surrogate policy for PM2.5 based on EPA's previous conclusions that PM2.5 implementation issues had been resolved to a degree sufficient for all federal Prevention of Significant Deterioration (PSD) permit reviews to begin direct PM2.5 based assessments as of July 15, 2008. In a letter 7 dated January 13, 2011 the State clarified their position on the use of PM10 as a surrogate for PM2.5 “. . . (CDPHE) now commits to implement PM2.5 standards consistent with EPA's latest interpretation of federal case law relevant to the use of the PM10 Surrogate Policy . . .” We are proposing to approve this revision, and in doing so, note that as announced in our May 2008 rulemaking to implement preconstruction review provisions for the 1997 PM2.5 NAAQS in both attainment and nonattainment areas (73 FR 28321), the 1997 PM10 Surrogate Policy ended on May 16, 2011 and can no longer be used for any pending or future State PSD permits.

Also regarding the May 16, 2012 submittal, we are proposing to take no action on several of the State's revisions related to PM2.5 implementation in Part D of Regulation Number 3, including section II.A.26.d. describing net emissions increases for PM2.5, the introductory paragraph of VI.A.2. and VI.A.2.c. that provide impact levels for PM2.5, and VI.B.3.a.(iii) PM2.5 monitoring exemption of 4 micrograms/cubic meter over a 24-hour average. We are proposing to not act on these revisions in part due to the January 22, 2013 United States Court of Appeals for the District of Columbia Circuit vacatur of the significant impact levels for PM2.5 for attainment areas. Since we are proposing to not take action on the PM2.5 monitoring exemption level found at VI.B.3.a.(iii), we also propose to not take action on VI.B.3.d. In absence of a revision to include a PM2.5 monitoring exemption level in VI.B.3.a.(iii), PM2.5 would be removed from the list of pollutants with monitoring exemption levels contained in VI.B.3.a., therefore exempting PM2.5 from monitoring levels completely if we approved VI.B.3.d.

We are also proposing to take no action on several revisions contained in the May 16, 2012 submittal to Definitions in Part D of Regulation Number 3 to address PM2.5 in the Baseline Area (II.A.5.a.), Major Source Baseline Date (II.A.23.), Minor Source Baseline Date (II.A.25.) and Regulated NSR Pollutant (II.A.38.) definitions because we already approved these revisions in our September 23, 2013 (78 FR 58186) action. In section II.A.23.c. of Part D, the State also revised the major source baseline date for PM2.5 to October 20, 2011. This date is incorrect; the correct major source baseline date for PM2.5 is October 20, 2010. In the May 13, 2013 submittal, also part of this action, the State revises the date back to October 20, 2010. The May 13, 2013 submittal supersedes the May 16, 2012 submittal; however, since the current approved SIP already contains the correct date, we are proposing to take no action on either revision.

Additionally, the May 16, 2012 submission addresses EPA's final action on October 3, 2011 (76 FR 61054) partially approving and partially disapproving Colorado's SIP revisions in Regulation Number 3, Part A to Air Pollutant Emission Notice (APEN) and permitting exemptions submitted to EPA in September 1997, June 2003, July 2005, August 2006, and August 2007. In the October 3, 2011 action, EPA partially disapproved APEN exemptions for open burning,8 mobile sources, stationary internal combustion engines, emergency generators, deaerator/vacuum pump exhaust, and air curtain destructors. In today's action, we are proposing to approve revisions to the open burning APEN requirements (II.D.1.q.) in Regulation Number 3, Part A changing the reference regulation from “9,” which is not part of Colorado's SIP, to “1,” which is part of Colorado's SIP and clarifying the mobile source APEN (II.D.1.ppp.). Additionally, we are proposing to approve revisions made to the surface water impoundment APEN exemption (II.D.1.uuu.) to include gas production wastewater in addition to oil production wastewater. We are proposing no action on the State's removal of APENs related to stationary internal combustion engines (II.D.1.sss.), emergency power generators (II.D.1.ttt.), deaerator/vacuum pump exhaust (II.D.1.xxx.), and air curtain destructors (II.D.1.ffff.) as these provisions were not approved into the SIP. Finally, we are proposing no action on revisions to identify sections I.B.31.c,9 and I.B.31.d. as “State-only Requirements” since these are also not part of the SIP.

Finally, the May 16, 2012 submission contains miscellaneous revisions to Parts A, B and D of Regulation Number 3. In Part A, the State clarified the significance level for VOC and NOX for APEN reporting purposes (II.C.2.b.(ii)). In Part B, section III.G.1., the State changed the timing an applicant must provide notice to the State upon commencement of operation of a source from 30 days prior to startup to 15 days following startup. This revision aligns with 40 CFR 60.7(a)(3) Standards of Performance for New Stationary Sources, Notification and Record Keeping. In Part D, revisions include a correction 10 to move the creditable emissions documentation from II.A.26.d. to II.A.26.c.(iii), remove “total suspended particulate matter” and add NOX as a precursor to ozone for consistency with federal significant monitoring concentrations requirements in VI.B.3.a.(iii) and VI.B.3.c., respectively. We propose to approve these revisions in addition to minor editorial changes found throughout Parts A, B and D of Regulation Number 3 with exceptions noted in Table 2 because the revisions the State is requesting are already in the SIP.

The State's May 13, 2013 SIP submittal contains amendments to Regulation Number 3 Parts A, B and D and includes administrative revisions to permitting requirements for stationary sources in Colorado and minor editorial changes. The State also updated where materials incorporated by reference are available for public inspection by adding an online web address and deleting reference to the State Publications Depository and Distribution Center in section I.A.

Revisions to section VI.B.5. in Part A of the May 13, 2013 submittal allow the State to issue construction permits prior to receipt of permit processing fees and provide for the option to revoke the permit or assess late fees if such fees are not paid within 90 days of the written request for fees. The purpose of the revisions are to allow applicants to commence construction during the invoicing and payment process; the revisions will not negatively impact permit applicants who pay their permit processing fees on time. A revision to section III.C.1.a. in Part B of the May 13, 2013 submittal clarifies the inclusion of sources in attainment/maintenance areas in the determination of sources subject to public comment. Finally, revisions to Part D of the May 13, 2013 submittal include deleting language EPA previously disapproved (79 FR 8632) in the introductory text for Major Modifications in section II.A.22.11 and Representative Actual Annual Emissions sections II.A.40.5 and II.A.40.5(a) as well as deleting the associated II.A.40.5(b).12

EPA is proposing to approve the revisions in the May 13, 2013 submittal to Parts A, B and D of Regulation Number 3 as well as the minor editorial changes contained throughout, except for sections II.A.22., II.A.40.5 (introductory paragraph), and II.A.40.5(a) in Part D because these are not in the current SIP and the other exceptions noted in Table 2. We are not acting on some of the provisions as listed in Table 2, because they are State-only provisions or because they are not applicable to the current SIP.

In our final rule published in the Federal Register on April 24, 2014 (79 FR 22772) we inadvertently did not include regulatory text and corresponding IBR materials for our approvals to (1) greenhouse gas permitting revisions to Common Provisions Regulation, and (2) minor editorial changes to the Common Provisions Regulation and Parts A, B and D of Regulation Number 3 (adopted October 10, 2010). EPA is proposing to correct this error with today's action. The IBR material for our April 24, 2014 action is contained within this docket.

For the reasons expressed above, EPA is proposing to approve revisions to sections I.A., I.B., I.C., I.D., I.E., I.F., I.G., II.B., II.C., II.E.2. and II.H of the State's Common Provisions Regulation from the March 31, 2010 submittal as shown in Table 1 below. We also propose to approve revisions to Parts A, B and D of the State's Regulation Number 3 from the May 16, 2012 and May 13, 2013 submittals (Table 1), except for those revisions we are not taking action on as represented in Table 2 below. Finally, EPA proposes to correct regulatory text and IBR published in the Federal Register on April 24, 2014 (79 FR 22772).

A comprehensive summary of the revisions in Colorado's Common Provisions Regulation and Regulation Number 3 Parts A, B and D organized by EPA's proposed rule action, reason for proposed “no action” and submittal date are provided in Table 1 and Table 2 below.

In this rulemaking, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference Colorado Air Quality Control Commission regulations discussed in section III, EPA's Review of the State of Colorado's March 31, 2010; May 16, 2012; and May 13, 2013 Submittals, and Regulatory Text/IBR Correction of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

The CAA affords the EPA a 45-day period to review, and object to, as appropriate, a title V operating permit proposed by a state permitting authority. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator, within 60 days after the expiration of this review period, to object to a Title V operating permit if the EPA has not done so. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or that the grounds for the objection or other issues arose after this period. The claims are described in detail in Section IV of the Order. In summary, the issues raised are that: (1) The Title V permit does not consider the Ontario County Landfill (Landfill) and the Facility a single source even though they together meet the 3-factor source determination test; and (2) the Facility's Title V permit is a “sham permit.” The EPA's rationale for partially granting and partially denying the claims raised in the petition are described in the Order.

Under the CSAPR FIPs, the mechanisms by which initial allocations of emission allowances are determined differ for “existing” and “new” units. For “existing” units—that is, units commencing commercial operation before January 1, 2010—the specific amounts of CSAPR FIP allowance allocations for all control periods have been established through rulemaking. EPA has announced the availability of spreadsheets showing the CSAPR FIP allowance allocations to existing units in previous notices of availability.1

“New” units—that is, units commencing commercial operation on or after January 1, 2010—as well as certain older units that would not otherwise obtain FIP allowance allocations do not have pre-established allowance allocations. Instead, the CSAPR FIPs reserve a portion of each state's total annual emissions budget for each CSAPR emissions trading program as a new unit set-aside (NUSA) 2 and establish an annual process for allocating NUSA allowances to eligible units. States with Indian country within their borders have separate Indian country NUSAs. The annual process for allocating allowances from the NUSAs and Indian country NUSAs to eligible units is set forth in the CSAPR regulations at 40 CFR 97.411(b) and 97.412 (NOX Annual Trading Program), 97.511(b) and 97.512 (NOX Ozone Season Trading Program), 97.611(b) and 97.612 (SO2 Group 1 Trading Program), and 97.711(b) and 97.712 (SO2 Group 2 Trading Program). Each NUSA allowance allocation process involves up to two rounds of allocations to new units followed by the allocation to existing units of any allowances not allocated to new units. EPA provides public notice at certain points in the process.

EPA has already completed the first round of allocations of 2015 NUSA allowances for all four CSAPR trading programs, as announced in notices of availability previously published in the Federal Register.3 The first-round NUSA allocation process was discussed in those previous notices of availability.

In the case of second-round allocations of NUSA allowances, the annual allocations for the CSAPR NOX Ozone Season Trading Program occur before the annual allocations for the other three CSAPR trading programs because of differences in the emissions reporting and compliance deadlines for the various programs. This notice of availability concerns the second round of NUSA allowance allocations for the CSAPR NOX Ozone Season Trading Program for the 2015 control period.4

The units eligible to receive second-round NUSA allocations for the CSAPR NOX Ozone Season Trading Program are defined in §§ 97.511(a)(1)(iii) and 97.512(a)(9)(i). Generally, eligible units include any CSAPR-affected unit that commenced commercial operation between May 1 of the year before the control period in question and August 31 of the year of the control period in question. In the case of the 2015 control period, an eligible unit therefore must have commenced commercial operation between May 1, 2014 and August 31, 2015 (inclusive).

The total quantity of allowances to be allocated through the 2015 NUSA allowance allocation process for each state and emissions trading program—in the two rounds of the allocation process combined—is generally the state's 2015 emissions budget less the sum of (1) the total of the 2015 CSAPR FIP allowance allocations to existing units and (2) the amount of the 2015 Indian country NUSA, if any.5 The amounts of CSAPR NOX Ozone Season NUSA allowances may be increased in certain circumstances as set forth in § 97.512(a)(2).

Second-round NUSA allocations for a given state, trading program, and control period are made only if the NUSA contains allowances after completion of the first-round allocations.

The amounts of second-round CSAPR NOX Ozone Season allowance allocations to eligible new units from each NUSA are calculated according to the procedures set forth in § 97.512(a)(9), (10) and (12). Generally, the procedures call for each eligible unit to receive a second-round 2015 NUSA allocation equal to the positive difference, if any, between its emissions during the 2015 NOX ozone season (i.e., May 1, 2015 through September 30, 2015) as reported under 40 CFR part 75 and any first-round allocation the unit received, unless the total of such allocations to all eligible units would exceed the amount of allowances in the NUSA, in which case the allocations are reduced on a pro-rata basis.

Any allowances remaining in the CSAPR NOX Ozone Season NUSA for a given state and control period after the second round of NUSA allocations to new units will be allocated to the existing units in the state according to the procedures set forth in § 97.512(a)(10) and (12).

EPA notes that an allocation or lack of allocation of allowances to a given EGU does not constitute a determination that CSAPR does or does not apply to the EGU. EPA also notes that allocations are subject to potential correction if a unit to which NUSA allowances have been allocated for a given control period is not actually an affected unit as of the start of that control period.6

The preliminary lists of units eligible for second-round 2015 NUSA allocations of CSAPR NOX Ozone Season allowances are set forth in an Excel spreadsheet titled “CSAPR_NUSA_2015_NOx_OS_2nd_Round_Prelim_Data” available on EPA's Web site at http://www.epa.gov/crossstaterule/actions.html. The spreadsheet contains a separate worksheet for each state covered by that program showing each unit preliminarily identified as eligible for a second-round NUSA allocation.

Each state worksheet also contains a summary showing (1) the quantity of allowances initially available in that state's 2015 NUSA, (2) the sum of the 2015 NUSA allowance allocations that were made in the first-round to new units in that state (if any), and (3) the quantity of allowances in the 2015 NUSA available for distribution in second-round allocations to new units (or ultimately for allocation to existing units).

Objections should be strictly limited to whether EPA has correctly identified the new units eligible for second-round 2015 NUSA allocations of CSAPR NOX Ozone Season allowances according to the criteria described above and should be emailed to the address identified in ADDRESSES. Objections must include: (1) Precise identification of the specific data the commenter believes are inaccurate, (2) new proposed data upon which the commenter believes EPA should rely instead, and (3) the reasons why EPA should rely on the commenter's proposed data and not the data referenced in this notice of availability.

This proposed rule is organized as follows:

Entities such as industries, stormwater management districts, or publicly owned treatment works (POTWs) that discharge pollutants to waters of the United States under the state of Washington's jurisdiction could be indirectly affected by this rulemaking, because federal water quality standards (WQS) promulgated by EPA would be applicable to CWA regulatory programs, such as National Pollutant Discharge Elimination System (NPDES) permitting. Citizens concerned with water quality in Washington could also be interested in this rulemaking. Categories and entities that could potentially be affected include the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that could be indirectly affected by this action. Any parties or entities who depend upon or contribute to the water quality of Washington's waters could be affected by this proposed rule. To determine whether your facility or activities could be affected by this action, you should carefully examine this proposed rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

CWA section 101(a)(2) establishes as a national goal “water quality which provides for the protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water, wherever attainable.” These are commonly referred to as the “fishable/swimmable” goals of the CWA. EPA interprets “fishable” uses to include, at a minimum, designated uses providing for the protection of aquatic communities and human health related to consumption of fish and shellfish.1

CWA section 303(c) (33 U.S.C. 1313(c)) directs states to adopt WQS for their waters subject to the CWA. CWA section 303(c)(2)(A) and EPA's implementing regulations at 40 CFR part 131 require, among other things, that a state's WQS specify appropriate designated uses of the waters, and water quality criteria that protect those uses. EPA's regulations at 40 CFR 131.11(a)(1) provide that such criteria “must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use.” In addition, 40 CFR 131.10(b) provides that “[i]n designating uses of a water body and the appropriate criteria for those uses, the state shall take into consideration the water quality standards of downstream waters and ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.”

States are required to review applicable WQS at least once every three years and, if appropriate, revise or adopt new standards (CWA section 303(c)(1)). Any new or revised WQS must be submitted to EPA for review and approval or disapproval (CWA section 303(c)(2)(A) and (c)(3)). CWA section 303(c)(4)(B) authorizes the Administrator to determine, even in the absence of a state submission, that a new or revised standard is needed to meet CWA requirements.

Under CWA section 304(a), EPA periodically publishes criteria recommendations for states to consider when adopting water quality criteria for particular pollutants to meet the CWA section 101(a)(2) goals. In 2015, EPA updated its 304(a) recommended criteria for human health for 94 pollutants.2 Where EPA has published recommended criteria, states should consider adopting water quality criteria based on EPA's CWA section 304(a) criteria, section 304(a) criteria modified to reflect site-specific conditions, or other scientifically defensible methods (40 CFR 131.11(b)(1)). Ultimately, however, criteria must protect the designated use and be based on sound scientific rationale (40 CFR 131.11(a)(1)). CWA section 303(c)(2)(B) requires states to adopt numeric criteria for all toxic pollutants listed pursuant to CWA section 307(a)(1) for which EPA has published 304(a) criteria, as necessary to support the states' designated uses.

In 1992, EPA promulgated the NTR at 40 CFR 131.36, establishing chemical-specific, numeric criteria for 85 priority toxic pollutants for 14 states and territories (states), including Washington, that were not in compliance with the requirements of CWA section 303(c)(2)(B). When states covered by the NTR subsequently adopted their own criteria for toxic pollutants that EPA approved as consistent with the CWA and EPA's implementing regulations, EPA amended the NTR to remove those states. Half of the original 14 states and territories remain covered for one or more criteria in the NTR. Washington has not yet adopted its own criteria for the protection of human health and, therefore, the Federal human health criteria that EPA promulgated in the NTR remain applicable to waters throughout the state.3

Human health criteria are designed to minimize the risk of adverse cancer and non-cancer effects occurring from lifetime exposure to pollutants through the ingestion of drinking water and consumption of fish/shellfish obtained from inland and nearshore waters. EPA's practice is to establish a human health 304(a) criterion for both drinking water and consumption of fish/shellfish from inland and nearshore waters combined and a separate human health criterion based on ingestion of fish/shellfish from inland and nearshore waters alone. This latter criterion applies in cases where the designated uses of a waterbody include supporting fish/shellfish for human consumption but not drinking water supply sources (e.g., in non-potable estuarine waters).

The criteria are based on two types of biological endpoints: (1) Carcinogenicity and (2) systemic toxicity (i.e., all adverse effects other than cancer). EPA takes an integrated approach and considers both cancer and non-cancer effects when deriving human health criteria. Where sufficient data are available, EPA derives criteria using both carcinogenic and non-carcinogenic toxicity endpoints and recommends the lower value. Human health criteria for carcinogenic effects are calculated using the following input parameters: Cancer slope factor, cancer risk level, body weight, drinking water intake rate, fish consumption rate, and a bioaccumulation factor(s). Human health criteria for non-carcinogenic and nonlinear carcinogenic effects are calculated using a reference dose in place of a cancer slope factor and cancer risk level, as well as a relative source contribution (RSC), which is intended to ensure that an individual's total exposure from all sources does not exceed the criteria. Each of these inputs is discussed in more detail below and in EPA's 2000 Human Health Methodology.4

EPA's 304(a) national recommended human health criteria generally assume that carcinogenicity is a “non-threshold phenomenon,” which means that there are no “safe” or “no-effect” levels because even extremely small doses are assumed to cause a finite increase in the incidence of cancer. Therefore, EPA calculates 304(a) human health criteria for carcinogenic effects as pollutant concentrations corresponding to lifetime increases in the risk of developing cancer.5 EPA calculates its 304(a) human health criteria values at a 10− 6 (one in one million) cancer risk level and recommends cancer risk levels of 10− 6 or 10− 5 (one in one hundred thousand) for the general population.6 EPA notes that states and authorized tribes can also choose a more stringent risk level, such as 10− 7 (one in ten million), when deriving human health criteria.

If the pollutant is not considered to have the potential for causing cancer in humans (i.e., systemic toxicants), EPA assumes that the pollutant has a threshold below which a physiological mechanism exists within living organisms to avoid or overcome the adverse effects of the pollutant.

A dose-response assessment is required to understand the quantitative relationships between the amount of exposure to a pollutant and the onset of human health effects. EPA evaluates dose-response relationships derived from animal toxicity and human epidemiological studies to derive dose-response metrics for regulatory purposes. To evaluate carcinogenic effects, the dose-response metric used to characterize a chemical's human cancer-causing potential is referred to as a cancer slope factor (CSF). For non-carcinogenic effects, EPA uses the reference dose (RfD) to calculate human health criteria. Doses that are below the RfD are less likely to be associated with health risks. EPA's Integrated Risk Information System (IRIS) 7 was the primary source of toxicity values (i.e., RfD and CSF) for EPA's 2015 updated 304(a) human health criteria.8 For some pollutants, however, more recent peer-reviewed and publicly available toxicological data were available from other EPA program offices (e.g., Office of Pesticide Programs, Office of Water, Office of Solid Waste and Emergency Response), other national and international programs, and state programs.

Per EPA's latest 304(a) national human health criteria, EPA uses a default drinking water intake rate of 2.4 liters per day (L/day) and default rate of 22 g/day for consumption of fish and shellfish from inland and nearshore waters, multiplied by pollutant-specific bioaccumulation factors (BAFs) to account for the amount of the pollutant in the edible portions of the ingested species. EPA's methodology for deriving human health criteria emphasizes using, when possible, measured or estimated BAFs, which account for chemical accumulation in aquatic organisms from all potential exposure routes.9 In the 2015 national 304(a) human health criteria update, EPA primarily used field-measured BAFs and laboratory-measured bioconcentration factors (BCFs) available from peer-reviewed, publicly available databases to develop national BAFs for three trophic levels of fish.10 If this information was not available, EPA selected octanol-water partition coefficients (Kow values) from peer-reviewed sources for use in calculating national BAFs.

EPA's national default drinking water intake rate of 2.4 L/day represents the per capita estimate of combined direct and indirect community water ingestion at the 90th percentile for adults ages 21 and older.11 EPA's national FCR of 22 g/day represents the 90th percentile consumption rate of fish and shellfish from inland and nearshore waters for the U.S. adult population 21 years of age and older, based on National Health and Nutrient Examination Survey (NHANES) data from 2003 to 2010.12 13 EPA calculates human health criteria using a default body weight of 80 kilograms (kg), the average weight of a U.S. adult age 21 and older, based on NHANES data from 1999 to 2006.

Although EPA uses these values to calculate national 304(a) recommended criteria, EPA's methodology notes a preference for the use of local data to calculate human health criteria (e.g., locally derived FCRs, drinking water intake rates and body weights, and waterbody-specific bioaccumulation rates) over national default values, to better represent local conditions.14 EPA also generally recommends, where sufficient data are available, selecting a FCR that reflects consumption that is not suppressed by fish availability or concerns about the safety of available fish.15 Deriving criteria using an unsuppressed FCR furthers the restoration goals of the CWA, and ensures protection of human health as pollutant levels decrease, fish habitats are restored, and fish availability increases. While EPA encourages doing so in general, where tribal treaty or other reserved fishing rights apply, selecting a FCR that reflects unsuppressed fish consumption could be necessary in order to satisfy such rights. If sufficient data regarding unsuppressed fish consumption levels are unavailable, consultation with tribes is important in deciding which fish consumption data should be used. See section IV.C.a.

When deriving human health criteria for non-carcinogens and nonlinear carcinogens, EPA recommends including a RSC factor to account for sources of exposure other than drinking water and fish and shellfish from inland and nearshore waters, so that the pollutant effect threshold (i.e., RfD) is not apportioned to drinking water and fish consumption alone. These other exposures include exposure to a particular pollutant from ocean fish consumption (which is not included in EPA's default national FCR), non-fish food consumption (e.g., fruits, vegetables, grains, meats, poultry), dermal exposure, and respiratory exposure. EPA's guidance includes a procedure for determining an appropriate RSC for a given pollutant ranging in value from 0.2 to 0.8.

In the NTR, 40 CFR 131.36(d)(14), EPA stated that the federal human health criteria applied to all waters assigned to Washington's use classifications identified at WAC 173-201-045, including fish and shellfish, fish, water supply (domestic), and recreation. As currently defined in Washington's WQS (WAC 173-201A-600 and WAC 173-201A-610), the uses subject to federal human health criteria in Washington include the following: Fresh waters—Harvesting (fish harvesting), Domestic Water (domestic water supply), and Recreational Uses; Marine waters—Shellfish Harvesting (shellfish—clam, oyster, and mussel—harvesting), Harvesting (salmonid and other fish harvesting, and crustacean and other shellfish—crabs, shrimp, scallops, etc.—harvesting), and Recreational Uses.

Per EPA's regulations at § 131.11(a), water quality criteria must contain sufficient parameters or constituents to protect the designated use, and for waters with multiple use designations, the criteria must support the most sensitive use. In determining whether WQS comply with the CWA and EPA's regulations, when setting criteria to support the most sensitive use in Washington, it is necessary to consider other applicable laws, including federal treaties.16 In Washington, many tribes hold reserved rights to take fish for subsistence, ceremonial, religious, and commercial purposes, including treaty-reserved rights to fish at all usual and accustomed fishing grounds and stations in waters under state jurisdiction, which cover the majority of waters in the state. Such rights include not only a right to take those fish, but necessarily include an attendant right to not be exposed to unacceptable health risks by consuming those fish.

In 1992, EPA selected input values based on available national data to derive protective human health criteria in the NTR. To ensure protection of human health in waters where fish and shellfish are caught and consumed, EPA used data available at the time on the average per-capita consumption rate of fish from inland and nearshore waters for the U.S. population. This average rate was 6.5 g/day.

Surveys of local residents in the Pacific Northwest, including tribes and recreational anglers, reflect high consumption levels of fish and shellfish—much higher than the 6.5 g/day rate that EPA used in 1992 to derive Washington's human health criteria in the NTR. Since that time, data have become available that better represent regional and local fish consumption in Washington, including:

• A Fish Consumption Survey of the Umatilla, Nez Perce, Yakama, and Warm Springs Tribes of the Columbia River Basin (Columbia River Inter-Tribal Fish Commission (CRITFC), 1994).

• A Fish Consumption Survey of the Tulalip and Squaxin Island Tribes of the Puget Sound Region (Toy et al., 1996).

• Fish Consumption Survey of the Suquamish Indian Tribe of the Port Madison Indian Reservations, Puget Sound Region (Suquamish Tribe, 2000).

• Asian and Pacific Islander Seafood Consumption Study (Sechena et al., 1999).

The average FCRs 17 from these surveys range from 63 to 214 g/day, far in excess of 6.5 g/day. The 90th percentile FCRs from these surveys range from 113 to 489 g/day, also far in excess of EPA's current national FCR of 22 g/day, which represents the 90th percentile national FCR (see section II.B.c). The 6.5 g/day FCR that EPA used to derive the current human health criteria applicable to Washington does not account for these more recent local data, nor suppression in fish consumption (as discussed earlier).18 In addition, the 6.5 g/day FCR does not account for EPA's 2000 recommendation to use an upper percentile of fish consumption data for the target general population (as with EPA's current national FCR of 22 g/day) rather than an average. EPA considered the fish consumption data cited above, in conjunction with Washington's current designated uses as informed by tribal reserved rights in Washington (as discussed in section IV.A), and determined that the federal human health criteria in the NTR as applied to Washington no longer protect the relevant designated uses of Washington's waters.

Because Washington's existing human health criteria, as promulgated by EPA in the NTR, are no longer protective of the applicable designated uses per the CWA and EPA's regulations at 40 CFR 131.11, EPA determines under CWA section 303(c)(4)(B) that new or revised WQS for the protection of human health are necessary to meet the requirements of the CWA for Washington. EPA, therefore, proposes the revised human health criteria for Washington in this rule in accordance with this 303(c)(4)(B) determination. EPA's determination is not itself a final action, nor part of a final action, at this time. After consideration of comments on the proposed rule, EPA will take final agency action on this rulemaking. It is at that time that any change to the water quality standards applicable to Washington would occur.

A majority of waters under Washington's jurisdiction are covered by reserved rights, including tribal treaty-reserved rights (see section III.A). Many areas where reserved rights are exercised cannot be directly protected or regulated by the tribal governments and, therefore, the responsibility falls to the state and federal governments to ensure their protection.19 In order to effectuate and harmonize these reserved rights, including treaty rights, with the CWA, EPA determined that such rights appropriately must be considered when determining which criteria are necessary to adequately protect Washington's fish and shellfish harvesting designated uses (see sections IV.C.a and IV.C.b).

Protecting Washington's fish and shellfish harvesting designated uses, which include consumption of such fish and shellfish, necessitates protecting the population exercising those uses. Where a population exercising such uses has a legal right to do so, the criteria protecting such uses must be consistent with such right. Thus, EPA proposes to consider the tribal population exercising their reserved fishing rights in Washington as the target general population for the purposes of deriving protective criteria that allow the tribes to harvest and consume fish consistent with their reserved rights.

Although treaties do not cover all waters in Washington, they cover the vast majority of the state's waters. Additionally, where treaty and non-treaty reserved rights apply on waters downstream of waters without reserved fishing rights, upstream WQS must provide for the attainment and maintenance of downstream WQS in accordance with EPA's regulations at 40 CFR 131.10(b). For any remaining waters in Washington where reserved rights do not apply and that are not upstream of waters with such rights or waters in Oregon (see section IV.C.a), it would be administratively burdensome and difficult to implement separate criteria because it would create a patchwork of protection among these areas leading to potential difficulties in administering the WQS, NPDES permitting, and other programs. In addition, delineating the precise boundaries could itself be complicated. Therefore, EPA proposes to apply these criteria to all waters under Washington's jurisdiction.

In 1992, EPA did not establish human health criteria in the NTR for some priority toxic pollutants for reasons articulated in the preamble to the final rule at 57 FR 60848, December 22, 1992. EPA had no 304(a) recommendations for those pollutants at the time. EPA now has 304(a) recommendations for 99 priority toxic pollutants listed pursuant to CWA section 307(a)(1) (85 for which EPA established criteria in the NTR, plus 14 additional pollutants). Therefore, EPA proposes to derive Washington-specific criteria for all 99 priority toxic pollutants in this rule. For those priority pollutants for which EPA does not have 304(a) national recommended criteria, and are thus not included in this proposed rule, EPA expects that Washington will continue to apply their existing narrative toxics criterion in the state's WQS at WAC 173-201A-260(2)(a).

This rule proposes to change the criteria that EPA promulgated for Washington in the NTR and establish new human health criteria for the 14 additional chemicals for which EPA now has 304(a) recommended criteria: Copper, Selenium, Zinc, 1,2-Dichloropropane, 1,2-Trans-Dichloroethylene, 2-Chlorophenol, 2,4-Dimethylphenol, Acenaphthene, Butylbenzyl Phthalate, 2-Chloronaphthalene, N-Nitrosodi-n-Propylamine, 1,1,1-Trichloroethane, 3-Methyl-4-Chlorophenol, and 1,2,4-Trichlorobenzene. Since 1992, EPA replaced its recommended human health criteria for mercury with a fish tissue-based human health criterion for methylmercury. EPA proposes to replace the criteria for mercury that EPA promulgated for Washington in the NTR with a methylmercury fish tissue criterion, adjusted for the FCR that EPA proposes to use to derive human health criteria in Washington.20 This proposed rule would not change or supersede any criteria that EPA previously promulgated for other states in the NTR, nor does it change any other elements of the NTR such as EPA's original basis for promulgation. EPA proposes to remove Washington from the NTR at 40 CFR 131.36 and incorporate the Washington-specific criteria proposed in this rule into proposed 40 CFR 131.45 so there is a single comprehensive rule for Washington.

This proposed rule would apply to waters under the state of Washington's jurisdiction, and not to waters within Indian Country 21 , unless otherwise specified in federal law. Some waters located within Indian Country already have CWA-effective human health criteria, while others do not.22 Several tribes are working with EPA to either revise their existing CWA-effective WQS, or obtain treatment in a similar manner as a state (TAS) status in order to adopt their own WQS in the near future. EPA will continue to work closely with tribes in Washington to ensure that they adopt human health criteria that are scientifically supported and protective of designated uses, in accordance with the CWA and EPA's regulations.

EPA proposes to derive human health criteria for Washington using a FCR of 175 g/day as this FCR accounts for local data (consistent with EPA's methodology), reflects input received during consultation with tribes, and appropriately addresses protection of Oregon's downstream WQS, per EPA's regulations at 40 CFR 131.10(b).

EPA considered the input received during consultation with tribes when selecting which fish consumption data would be used to estimate a FCR for calculating human health criteria to protect the designated uses. A FCR of 175 g/day approximates the 95th percentile consumption rate of surveyed tribal members from the CRITFC study.23 Although EPA's national default FCR only includes consumption of fish from inland and nearshore waters, 175 g/day in this case includes anadromous fish, which is appropriate given that anadromous species reside in Washington's nearshore waters, especially Puget Sound, and accumulate pollutants discharged to these waters.24 A FCR of 175 g/day, therefore, accounts for local fish consumption data. Additionally, Oregon, much of which is downstream from Washington, used this FCR to derive statewide human health criteria, which EPA approved in 2011. Use of this FCR to derive Washington's criteria should thus help provide for the attainment and maintenance of downstream WQS in Oregon.

After consideration of the full range of available local fish consumption data and after consultation with Washington tribes and Columbia River Basin tribes in Oregon and Idaho, EPA determined that a FCR of 175 g/day very likely does not reflect unsuppressed consumption rates of tribes within the state (see section II.B.c). EPA considered this fact as well as tribal input in selecting a cancer risk level of 10−6 to account for this uncertainty and ensure that EPA's proposed criteria protect Washington's fishing uses, including the tribes' reserved fishing rights. See discussion in section IV.C.b.

Based on Washington's longstanding use of a cancer risk level of 10−6, along with EPA's consideration of tribal reserved rights, EPA guidance, and downstream protection, EPA proposes to derive human health criteria for carcinogens in Washington using a 10−6 cancer risk level.

To derive final human health criteria for each state in the NTR, EPA selected a cancer risk level based on each state's policy or practice regarding what risk level should be used when regulating carcinogens in surface waters. In its official comments on EPA's proposed NTR, Washington asked EPA to promulgate human health criteria using a cancer risk level of 10−6, stating, “The State of Washington supports adoption of a risk level of one in one million for carcinogens. If EPA decides to promulgate a risk level below one in one million, the rule should specifically address the issue of multiple contaminants so as to better control overall site risks.” (57 FR 60848, December 22, 1992). Accordingly, in the NTR, EPA used a cancer risk level of 10−6 (one in one million) to derive human health criteria for Washington. Subsequently, Washington adopted and EPA approved a provision in the state's WQS that reads: “Risk-based criteria for carcinogenic substances shall be selected such that the upper-bound excess cancer risk is less than or equal to one in a million” (WAC 173-201A-240(6)). This provision has been in effect in Washington's WQS since 1993.

In order to effectuate reserved fishing rights, including the rights that federal treaties afford to tribes in Washington, EPA proposes to derive criteria that will protect the tribe's reserved fishing rights in Washington, treating the tribal population exercising those rights as the target general population (see section IV.A). EPA's selection of a 10−6 cancer risk level for the tribal target general population is consistent with EPA's 2000 Human Health Methodology, which states that when promulgating water quality criteria for states and tribes, EPA intends to use the 10−6 level, which reflects an appropriate risk for the general population.25 EPA's 2000 Human Health Methodology did not consider how CWA decisions should account for applicable reserved fishing rights, including treaty-reserved rights. As discussed in section IV.C.a, because a FCR of 175 g/day very likely does not reflect unsuppressed consumption, using a cancer risk level of 10−6 ensures protection of tribal members' unsuppressed consumption. Independently, the treaties themselves could require higher levels of protection. The treaties themselves could be interpreted to require a certain level of risk; e.g., a de minimis level of risk that would most reasonably approximate conditions at the time the treaties were signed and the fishing rights were reserved. In policy development regarding management of cancer risks, EPA often uses 10−6 as a de minimis risk level.26 In this case, EPA considers 10−6 to be sufficiently protective, and the tribes have supported this during consultation.

Finally, many of Washington's rivers are in the Columbia River basin, upstream of Oregon's portion of the Columbia River. Oregon's criteria are based on a FCR of 175 g/day and a cancer risk level of 10−6. EPA's proposal to derive human health criteria for Washington using a cancer risk level of 10−6 along with a FCR of 175 g/day helps ensure that Washington's criteria will provide for the attainment and maintenance of Oregon's downstream WQS as required by 40 CFR 131.10(b).

EPA recommends using a RSC for non-carcinogens and nonlinear carcinogens to account for sources of exposure other than drinking water and consumption of inland and nearshore fish and shellfish (see section II.B.d). In 2015, after evaluating information on chemical uses, properties, occurrences, releases to the environment and regulatory restrictions, EPA developed chemical-specific RSCs for non-carcinogens and nonlinear carcinogens ranging from 0.2 (20 percent) to 0.8 (80 percent) following the Exposure Decision Tree approach described in EPA's 2000 Human Health Methodology.27 28 EPA proposes to use these same RSCs to derive human health criteria for Washington. Where EPA did not update the nationally recommended criteria for certain pollutants in 2015, EPA proposes to use a RSC of 0.2 to derive human health criteria for those pollutants in Washington to ensure protectiveness. See Table 1, column B2 for a list of EPA's proposed RSCs by pollutant.

EPA proposes to calculate human health criteria for Washington using a body weight of 80 kg, which represents the average weight of a U.S. adult. In 2015, EPA updated its national adult body weight to 80 kg based on national survey data (see section II.B.c).29 Local tribal survey data relevant to Washington are consistent with EPA's national adult body weight of 80 kg.30

EPA proposes to calculate human health criteria for Washington using a rate of 2.4 L/day. In 2015, EPA updated its national default drinking water intake rate to 2.4 L/day based on national survey data (see section II.B.c).31 EPA is not aware of any local data applicable to Washington that suggest a more appropriate rate.

As part of EPA's 2015 updates to its 304(a) recommended human health criteria, EPA conducted a systematic search of eight peer-reviewed, publicly available sources to obtain the most current toxicity values for each pollutant (RfDs for non-carcinogenic effects and CSFs for carcinogenic effects).32 EPA proposes to calculate human health criteria for Washington using the same toxicity values that EPA used in its 2015 304(a) criteria updates, to ensure that the resulting criteria are based on a sound scientific rationale. Where EPA did not update criteria for certain pollutants in 2015, EPA proposes to use the toxicity values that the Agency used the last time it updated its 304(a) criteria for those pollutants as the best available scientific information. See Table 1, columns B1 and B3 for a list of EPA's proposed toxicity factors by pollutant.

For the 2015 national 304(a) human health criteria update, EPA estimated chemical-specific BAFs using a framework for deriving national BAFs described in EPA's 2000 Human Health Methodology.33 Because the surveyed population upon which the 175 g/day FCR is based consumed almost exclusively trophic level four fish (i.e., predator fish species), EPA proposes to apply the trophic level four BAF from the 2015 304(a) human health criteria updates in conjunction with the 175 g/day FCR, in order to ensure protectiveness.34 Where EPA did not update criteria for certain pollutants in 2015, EPA proposes to use the BCFs that the Agency used the last time it updated its 304(a) criteria for those pollutants as the best available scientific information. See Table 1, columns B4 and B5 for a list of EPA's proposed bioaccumulation factors by pollutant.

EPA proposes 195 human health criteria for 99 different pollutants (97 organism-only criteria and 98 water-plus-organism criteria) to protect the applicable designated uses of Washington's waters (see Table 1). The water-plus-organism criteria in column C1 of Table 1 are the applicable criteria for any waters that include the Domestic Water (domestic water supply) use defined in Washington's WQS (WAC 173-201A-600). The organism-only criteria in column C2 of Table 1 apply to waters that do not include the Domestic Water (domestic water supply) use and that Washington defines at WAC 173-201A-600 and 173-201A-610 as the following: Fresh waters—Harvesting (fish harvesting), and Recreational Uses; Marine waters—Shellfish Harvesting (shellfish—clam, oyster, and mussel—harvesting), Harvesting (salmonid and other fish harvesting, and crustacean and other shellfish—crabs, shrimp, scallops, etc.—harvesting), and Recreational Uses.

EPA solicits comment on the criteria, the inputs EPA used to derive these criteria, and specifically solicits additional Washington-specific information such as data from local fish or drinking water consumption rate studies, or bioaccumulation field studies from Washington waters.

The EPA does not propose to revise or replace any existing criteria (related to human health or otherwise) that were already adopted and submitted to EPA by Washington (and for those adopted after May 30, 2000, approved by EPA), such as the state's narrative toxics criteria statement at WAC 173-201A-260(2)(a). Rather, EPA proposes to revise the current federal human health criteria applicable to waters in the state of Washington, as promulgated in the NTR, and establish new criteria for 14 additional priority pollutants. These new and revised human health criteria would apply for CWA purposes in addition to any existing criteria already applicable to Washington's waters.

EPA proposes to replicate in 40 CFR 131.45 the same general rules of applicability for human health criteria as in 40 CFR 131.36(c), with one exception. For waters suitable for the establishment of low flow return frequencies (i.e., streams and rivers), EPA proposes that Washington must not use a low flow value below which numeric standards can be exceeded that is less stringent than the harmonic mean flow (a long-term mean flow value calculated by dividing the number of daily flows analyzed by the sum of the reciprocals of those daily flows). Per 65 FR 66444, November 3, 2000, EPA now recommends harmonic mean flow be used to implement human health criteria for both carcinogens and non-carcinogens.35

Under the CWA, Congress gave states primary responsibility for developing and adopting WQS for their navigable waters (CWA section 303(a)-(c)). Although EPA proposes human health criteria for Washington to update the existing federally promulgated criteria, Washington continues to have the option to adopt and submit to EPA human health criteria for the state's waters consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131. EPA encourages Washington to expeditiously adopt protective human health criteria. Consistent with CWA section 303(c)(4), if Washington adopts and submits human health criteria and EPA approves such criteria before finalizing this proposed rule, EPA would not proceed with the final rulemaking for those waters and/or pollutants for which EPA approves Washington's criteria.

If EPA finalizes this proposed rule, and Washington subsequently adopts and submits human health criteria, EPA proposes that once EPA approves Washington's WQS, the pollutant-specific or site-specific EPA-approved criteria in Washington's WQS would become effective for CWA purposes and EPA's promulgated criteria for those pollutants or for that site would no longer apply. EPA would still undertake a rulemaking to withdraw the federal criteria for those pollutants, but any delay in that process would not delay Washington's approved criteria from becoming the sole applicable criteria for CWA purposes. EPA solicits comment on this approach.

Once finalized, Washington will have considerable discretion to implement these revised federal human health criteria through various water quality control programs including the NPDES program, which limits discharges to waters except in compliance with a NPDES permit. EPA's regulations at 40 CFR 131.14, once effective, authorize states and authorized tribes to adopt WQS variances to provide time to achieve the applicable WQS. 40 CFR part 131 defines WQS variances at 131.3(o) as time-limited designated uses and supporting criteria for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable conditions during the term of the WQS variance. WQS variances adopted in accordance with 40 CFR part 131 allow states and authorized tribes to address water quality challenges in a transparent and predictable way. Variances help states and authorized tribes focus on making incremental progress in improving water quality, rather than pursuing a downgrade of the underlying water quality goals through a designated use change, when the current designated use is difficult to attain. EPA's regulations at 40 CFR 122.47 and 40 CFR 131.15, once effective, allow states and authorized tribes to include permit compliance schedules in their NPDES permits if dischargers need additional time to meet their water quality based limits based on the applicable WQS. EPA's updated regulations at 40 CFR part 131 also include provisions authorizing the use of permit compliance schedules to ensure that a decision to allow permit compliance schedules includes public engagement and transparency. (80 FR 51022, August 21, 2015).

40 CFR 131.10 specifies how states and authorized tribes establish, modify or remove designated uses for their waters. 40 CFR 131.11 specifies the requirements for establishing criteria to protect designated uses, including criteria modified to reflect site-specific conditions. In the context of this rulemaking, a site-specific criterion (SSC) is an alternative value to the federal human health criteria that would be applied on a watershed, area-wide, or waterbody-specific basis that meets the regulatory test of protecting the designated use, being scientifically defensible, and ensuring the protection and maintenance of downstream WQS. A SSC may be more or less stringent than the otherwise applicable federal criteria. A SSC may be appropriate when further scientific data and analyses can bring added precision to express the concentration of a particular pollutant that protects the human health-related designated use in a particular waterbody.

EPA does not propose to change any of the flexibilities afforded to Washington by EPA's regulations to modify or remove designated uses, adopt variances, issue compliance schedules or establish site-specific criteria. Washington may continue to use any of these regulatory flexibilities when implementing the revised federal human health criteria.

EPA's proposed human health criteria apply to waters that Washington has designated for the following: Fresh waters—Harvesting (fish harvesting), Domestic Water (domestic water supply), and Recreational Uses; Marine waters—Shellfish Harvesting (shellfish—clam, oyster, and mussel—harvesting), Harvesting (salmonid and other fish harvesting, and crustacean and other shellfish—crabs, shrimp, scallops, etc.—harvesting), and Recreational Uses (see WAC 173-201A-600 and WAC 173-201A-610). If Washington removes the Domestic Water use but retains any of the other above designated uses for any particular waterbody ultimately affected by this rule, and EPA finds that removal to be consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131, then the federal organism-only criteria would apply in place of the federal water-plus-organism criteria. If Washington removes designated uses such that none of the above uses apply to any particular waterbody ultimately affected by this rule and adopts the highest attainable use, as defined by 40 CFR 131.3(m), consistent with 40 CFR 131.10(g), and EPA finds that removal to be consistent with CWA section 303(c) and EPA's implementing regulations at 40 CFR part 131, then the federal human health criteria would no longer apply to that waterbody. Instead, any criteria associated with the newly designated highest attainable use would apply to that waterbody.

EPA is proposing human health criteria that apply to use designations that Washington has already established. Washington has sufficient authority to use variances when implementing the human health criteria as long as such variances are adopted consistent with 40 CFR 131.14. Washington may use its currently EPA-approved variance procedures with respect to a temporary modification of its uses as it pertains to any federal criteria (see WAC 173-201A-420) when adopting such variances. Similarly, Washington already has an EPA-approved regulation authorizing the use of permit compliance schedules (see WAC 173-201A-510), consistent with 40 CFR 131.15. That state regulation is not affected by this rule, and Washington is authorized to grant compliance schedules, as appropriate, based on the federal criteria.

As discussed in section IV.E, EPA proposes that once EPA approves human health criteria that Washington adopts and submits after EPA finalizes this proposed rule, the pollutant-specific or site-specific EPA-approved criteria in Washington's WQS would become effective for CWA purposes and EPA's promulgated criteria for those pollutants or for that site would no longer apply.

These WQS may serve as a basis for development of NPDES permit limits. Washington has NPDES permitting authority, and retains considerable discretion in implementing standards. EPA evaluated the potential costs to NPDES dischargers associated with state implementation of EPA's proposed criteria. This analysis is documented in “Economic Analysis for the Revision of Certain Federal Water Quality Criteria Applicable to Washington,” which can be found in the record for this rulemaking.

Any NPDES-permitted facility that discharges pollutants for which the revised human health criteria are more stringent than the applicable aquatic life criteria (or for which human health criteria are the only applicable criteria) could potentially incur compliance costs. The types of affected facilities could include industrial facilities and POTWs discharging wastewater to surface waters (i.e., point sources). Once in compliance with water quality-based effluent limitations (WQBELs) reflective of existing federal human health criteria applicable to Washington (hereafter referred to as “baseline criteria”), EPA expects that dischargers will continue to use the same types of controls to come into compliance with the revised criteria; EPA did not attribute compliance with WQBELs reflective of baseline criteria to the proposed rule. EPA did not fully evaluate the potential for costs to nonpoint sources, such as agricultural runoff, for this preliminary analysis.

EPA recognizes that the permitting authority may require controls for nonpoint sources (e.g., agricultural runoff). However, it is difficult to model and evaluate the potential cost impacts of this proposed rule to nonpoint sources because they are intermittent, variable, and occur under hydrologic or climatic conditions associated with precipitation events. Also, data on instream and discharge levels of the pollutants of concern after dischargers have implemented controls to meet current WQS, total maximum daily loads (TMDLs) for impaired waters, or other water quality improvement plans, are not available. Therefore, trying to determine which sources would not achieve WQS based on the revised human health criteria after complying with existing regulations and policies may not be possible.

Finally, legacy contamination (e.g., in sediment) may be a source of ongoing loading. Atmospheric deposition may also contribute loadings of the pollutants of concern (e.g., mercury). EPA did not estimate sediment remediation costs, or air pollution controls costs, for this preliminary analysis.

EPA identified 406 point source facilities that could ultimately be affected by this proposed rule. Of these potentially affected facilities, 73 are major dischargers and 333 are minor dischargers. EPA did not include general permit facilities in its analysis because data for such facilities are limited, and flows are usually negligible. Of the potentially affected facilities, EPA evaluated a sample of 17 major facilities. Minor facilities are unlikely to incur costs as a result of implementation of the rule. Minor facilities are typically those that discharge less than 1 million gallons per day (mgd) and do not discharge toxics in toxic amounts. Although lower human health criteria could potentially change this categorization, EPA did not have effluent data on toxic pollutants to evaluate minor facilities for this preliminary analysis. Table 2 summarizes these potentially affected facilities by type and category.

EPA evaluated the 2 major municipal facilities with design flows greater than 100 mgd and the largest industrial facility, to attempt to capture the facilities with the potential for the largest costs. For the remaining major facilities, EPA evaluated a random sample of facilities to represent discharger type and category. For all sample facilities, EPA evaluated existing baseline permit conditions, reasonable potential to exceed human health criteria based on the proposed rule, and potential to exceed projected effluent limitations based on the last three years of effluent monitoring data (if available). In instances of baseline effluent limitations not being reflective of baseline criteria, EPA estimated baseline effluent limitations, compliance actions, and costs. In instances of exceedances of projected effluent limitations under the proposed criteria, EPA determined the likely compliance scenarios and costs. Only compliance actions and costs that would be needed above the baseline level of controls are attributable to the proposed rule.

EPA assumed that dischargers will pursue the least cost means of compliance with WQBELs. Incremental compliance actions attributable to the proposed rule may include pollution prevention, end-of-pipe treatment, and alternative compliance mechanisms (e.g., variances). EPA annualized capital costs, including study (e.g., variance) and program (e.g., pollution prevention) costs, over 20 years using a 7% discount rate to obtain total annual costs per facility. For the random sample, EPA extrapolated the annualized costs based on the sampling weight for each sample facility. To obtain an estimate of total costs to point sources, EPA added the results for the certainty sample to the extrapolated random sample costs.

Based on the results for 17 sample facilities across 8 industrial and municipal categories,36 EPA estimated a total annual cost of approximately $13.0 million to $13.1 million for all major dischargers in the state. The low end of the range reflects the assumption that the compliance actions will result in compliance with projected effluent limits through pollution prevention programs and end-of-pipe treatment, whereas the high scenario reflects the assumption that these actions will not result in compliance with very low limits and dischargers will also need to apply for variances. All of the incremental costs are attributable to industrial dischargers, primarily for treatment of arsenic. Overall, compliance with revised human health criteria for arsenic accounts for 99% of the costs, while compliance with revised human health criteria for mercury accounts for the remaining 1% of costs.

If the revised criteria result in an incremental increase in impaired waters, resulting in the need for TMDL development, there could also be some costs to nonpoint sources of pollution. Using available ambient monitoring data, EPA compared pollutant concentrations to the baseline and proposed criteria, identifying waterbodies that may be incrementally impaired (i.e., impaired under the proposed criteria but not under the baseline). For the 26 parameters and stations for which EPA had sufficient monitoring data available to evaluate, there were 205 impairments under the baseline criteria and 254 under the proposed criteria, for a total of 49 potential incremental impairments (or a 24% increase relative to the baseline; including for mercury and DDT). This increase indicates the potential for nonpoint sources to bear some compliance costs, although data are not available to estimate the magnitude of these costs. The control of nonpoint sources such as in the context of a TMDL could result in less stringent requirements, and thus lower costs, for point sources.

It has been determined that this proposed rule 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). The proposed rule does not establish any requirements directly applicable to regulated entities or other sources of toxic pollutants. However, these WQS may serve as a basis for development of NPDES permit limits. Washington has NPDES permitting authority, and retains considerable discretion in implementing standards. In the spirit of Executive Order 12866, EPA evaluated the potential costs to NPDES dischargers associated with state implementation of EPA's proposed criteria. This analysis, Economic Analysis for the Revision of Certain Federal Water Quality Criteria Applicable to Washington, is summarized in section V of the preamble and is available in the docket.

This action does not impose any direct new information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Actions to implement these WQS could entail additional paperwork burden. Burden is defined at 5 CFR 1320.3(b). This action does not include any information collection, reporting, or record-keeping requirements.

This action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (RFA). Small entities, such as small businesses or small governmental jurisdictions, are not directly regulated by this rule. This proposed rule will thus not impose any requirements on small entities. We continue to be interested, however, 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. As these water quality criteria are not self-implementing, EPA's 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 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that could significantly or uniquely affect small governments.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This rule does not alter Washington's considerable discretion in implementing these WQS, nor would it preclude Washington from adopting WQS that EPA concludes meet the requirements of the CWA, either before or after promulgation of the final rule, which would eliminate the need for federal standards. Thus, Executive Order 13132 does not apply to this action.

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

This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. In the state of Washington, there are 29 federally recognized Indian tribes. To date, nine of these Indian tribes have been approved for TAS for CWA sections 303 and 401.37 Of these nine tribes, seven have EPA-approved WQS in their respective jurisdictions.38 This rule could affect federally recognized Indian tribes in Washington because the numeric criteria for Washington will apply to waters adjacent to (or upstream or downstream of) the tribal waters, and because the proposed Washington criteria are informed by tribal reserved rights. Additionally, there are ten federally recognized Indian tribes in the Columbia River Basin located in the states of Oregon and Idaho that this rule could affect because their waters could affect or be affected by the water quality of Washington's downstream or upstream waters.

EPA consulted with federally recognized tribal officials under EPA's Policy on Consultation and Coordination with Indian tribes early in the process of developing this proposed rule to permit them to have meaningful and timely input into its development. In February and March 2015, EPA held tribes-only technical staff and leadership consultation sessions to hear their views and answer questions of all interested tribes on the proposed rule. Representatives from approximately 23 tribes and four tribal consortia participated in two leadership meetings held in March 2015. EPA and tribes have also met regularly since November 2012 to discuss Washington's human health criteria at both the tribal leadership level and technical staff level. The tribes have repeatedly asked EPA to promulgate federal human health criteria for Washington if the state did not do so in a timely and protective manner. At these meetings, the tribes consistently emphasized that the human health criteria should be derived using at least a minimum FCR value of 175 g/day, a cancer risk level of 10−6, and the latest scientific information from EPA's 304(a) recommended criteria. EPA considered the input received during consultation with tribes when developing this proposal (see section IV for additional discussion of how EPA considered tribal input).

This rule is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the environmental health or safety risks addressed by this action do not present a disproportionate risk to children.

The public is invited to submit comments or identify peer-reviewed studies and data that assess effects of early life exposure.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

This proposed rulemaking does not involve technical standards.

This action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. Conversely, this action identifies and ameliorates disproportionately high and adverse human health effects on minority populations and low-income populations in Washington. EPA developed the human health criteria included in this proposed rule specifically to protect Washington's designated uses, using the most current science, including local and regional information on fish consumption. Applying these criteria to waters in the state of Washington will afford a greater level of protection to both human health and the environment.

For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 131 as follows:

For additional information, please see the direct final published in the “Rules and Regulations” section of this Federal Register.

Background

The Clean Vessel Act of 1992 (Act) (Pub. L. 102-587, title V, subtitle F) amends the Sport Fish Restoration Act (16 U.S.C. 777c) and establishes a program that provides matching grants to States for projects that address septic waste from recreational vessels. Grants may be used to conduct coastal surveys and establish plans; construct, renovate, operate, and maintain pumpout and other waste reception facilities for recreational vessels; and conduct programs to educate boaters about the environmental and health issues associated with improperly disposing of human waste. Priority consideration was established in the Act for projects that are in coastal States, include public/private partnerships, and include innovative ways to increase project availability and use. The Sportfishing and Recreational Boating Safety Act of 2005 (SAFETEA-LU) (Pub. L. 109-59, Title X, section 10131) amends the Clean Vessel Act to remove the preference for projects in coastal States.

Since inception, the Clean Vessel Act grant program (CVA) has awarded more than $246 million. The projects funded have helped States to build an infrastructure that links services within and between States and raised awareness of the benefits of properly disposing of septic waste. As a result, States have experienced a reduction in beach and shellfish bed closures, enhanced boater awareness and satisfaction, and improved water quality in recreational areas.

In the 1990s, we published in the Federal Register three documents related to CVA: Clean Vessel Act Pumpout Grant Program, Final rule (59 FR 11204, March 10, 1994); Clean Vessel Act: Pumpout Station and Dump Station Technical Guidelines, Notice of final guidelines (59 FR 11290, March 10, 1994); and Clean Vessel Act Pumpout Symbol, Slogan, and Program Crediting, Final rule (62 FR 45344, August 27, 1997). The CVA regulations are located in title 50 of the Code of Federal Regulations (CFR) in part 85 (50 CFR part 85).

As we move forward in the program, we propose not only to build on the success of CVA to date, but also to seek new and innovative ways to serve the boating public into the future. We hosted four open forum discussions between October 2014 and February 2015 in which we asked States and other stakeholders to share their knowledge and opinions on topics associated with implementing CVA nationally. Participants informed us on challenges to implementation and consistency that have arisen since the program began, changes in focus that have evolved as the program has matured, and successful approaches they would like to continue. These discussions prompted us to seek input on certain topics from a larger audience.

With this advance notice of proposed rulemaking (ANPR), the Service is seeking information, comments, and suggestions that will help us to consider how best to address updating the CVA regulations and Technical Guidelines. We ask for your help in identifying significant issues that interfere with participation in CVA, administration of CVA, services provided under CVA, or successful implementation of CVA projects. We ask for your responses on successful approaches or foundational benefits that you suggest we should preserve in future rulemaking. We intend to use your input to develop updated regulations and guidelines in one location at 50 CFR part 85. After receiving and considering your responses to our requests in this ANPR, we will publish a proposed rule in the Federal Register for public review and comment. In particular, we encourage you to give comments and suggestions on the issues described in the body of the ANPR. When commenting, please indicate which of the listed issues your comment addresses and to which question you are responding. If your comments cover issues outside of those listed, please identify them as Other.

There are several topics where your response may reference a State or local law, regulation, standard, or other legal reference. When your comments include a legal reference, please specifically cite the legal document. We recommend you use citation formats in Association of Legal Writing Directors (ALWD) Guide to Legal Citation or Bluebook: A Uniform System of Citation as your guide. If possible, please give a location where we may access the document electronically.

(a) The Technical Guidelines (Guidelines) issued on March 10, 1994, reflect a collaborative effort between the Service and various entities that have expertise or interest in boating, clean water, waste disposal equipment, and other associated topics. We consulted with the Environmental Protection Agency (EPA), the U.S. Coast Guard (USCG), and the National Oceanic and Atmospheric Administration (NOAA) when developing the guidelines. We also asked for advice and input from States, local municipalities, boat users, manufacturers of pumpout equipment, marina operators, conservation groups, interest organizations, and the public. The resulting document reflects the best available knowledge at that time and informs the public on basic principles that were foundational to the grant program in the beginning stages of development.

(b) We are aware that advances have been made in technology, technique, and approach since we published the Guidelines. Through this notice, we ask for those same groups and any new user and interest groups, technical experts, and practitioners to advise us on some specific and some general technology issues. When responding to a topic, please address to the extent possible the following regarding the technology, technique, or approach:

(1) For technology, if it is currently available or would need to be developed;

(2) Cost;

(3) Expertise needed;

(4) Supporting infrastructure or other technology needed;

(5) Long-term personnel investment; and

(6) Any known obstacles.

(c) We ask that if you have knowledge of such advancements, you discuss developments that have been made since 1994, or are anticipated in the next few years, that improve, support, or otherwise affect CVA. Discuss how you suggest we should use this information to inform new guidelines.

(d) We ask your comments on these specific topics:

(1) States that experience seasonal cold weather likely have pumpout facility operators that choose to close for the season, winterize their pumpout equipment, or both. However, boaters may travel to those areas seeking pumpout services. What technology, technique, or approach would address the need to provide pumpout services in cold weather areas?

(2) How important is it for States to monitor the amount of waste removed through pumpouts? Should the guidelines strongly recommend meters or other “add-on” equipment to accomplish this? Should the regulations require it? If so, when should the new requirement be effective?

(3) Floating restrooms are eligible for CVA funding. However, with the emphasis of the program on providing facilities that benefit boaters, the current regulations state they cannot be connected to land or anything else that is connected to land, restricting floating restrooms to water-only access. Therefore, floating restrooms connected to an attached dock cannot be funded through CVA. (Land-based restrooms are currently ineligible.) We have received requests to revisit this restriction and consider the possibility of allowing floating restrooms to be attached to a dock and to allow piping to run directly from the floating restroom to a land connection for waste disposal. We ask you to comment on:

(i) Whether we should allow floating restrooms to be connected to land or docks. What are the advantages and disadvantages? Should there be limitations?

(ii) Are you aware of legal issues that affect floating restrooms, such as State or local regulations, permit restrictions, or building standards? If so, please discuss the effect and cite the regulation, code, or standard.

(iii) There are concerns with protecting floating restrooms from vandalism and other damage. If floating restrooms are allowed to be connected to land or docks, the potential for vandalism may increase with easier land-side access. Do you have any suggestions for how to address these concerns?

(iv) Is it important to maintain the emphasis on floating restrooms serving only the boating public? If we were to allow floating restrooms to be connected to docks, what approaches would restrict use to serve only the boating public?

(v) What approaches would ensure that floating restrooms are designed to limit land-side access and potential over-use by the non-boating public?

(vi) Should we participate in efforts to develop standards or best management practices for floating restrooms?

(a) Some States offer CVA O&M, and some do not. We suggest that offering O&M greatly benefits CVA by:

(1) Increasing the number of pumpout facilities by supporting operators that otherwise might not be able to financially support ongoing service;

(2) Providing a mechanism to reimburse operators when they respond to equipment failures, increasing pumpout facility availability and functionality; and

(3) Helping to extend the useful life of the investment.

(b) The Service does not have a comprehensive list of how many and which States do not participate in offering O&M for pumpout projects, or the reasons why these States have chosen this approach. We would like to know more about those States that participate, and those that do not, in order to identify if changes in regulations or guidelines could improve this aspect of CVA. We ask States to respond telling us:

(1) Does your State offer O&M grant funding to subgrantees and operators?

(2) If your State does offer O&M funding, describe your program, including:

(i) Any restrictions on the type of projects that may receive O&M funds;

(ii) Any limits on O&M funds;

(iii) How you administer O&M processing; and

(iv) Any obstacles you currently experience that you suggest we may alleviate either through regulation or other means.

(3) If your State does not offer O&M funding, describe the reasons why your State has chosen not to offer O&M funding. If the reasons include laws or regulations, please cite as directed under Information Requested. Include in your comments changes you suggest we consider that might assist your State to begin a CVA O&M program.

(a) Please cite, as directed under Information Requested, and discuss any State or local laws or regulations that either support or impede CVA projects. When available, include web links to the law or regulation.

(b) Discuss specifically how the law or regulation affects CVA projects. If it is a positive effect, tell us if you believe the Service should consider adopting similar principles. If it is a negative effect, tell us how it restricts your ability to complete successful projects. Please suggest any changes in the CVA regulation that would increase your ability to complete successful projects within the parameters of current or proposed State and local laws and regulations.

(a) The current regulations at 50 CFR 85.44 allow operators of facilities constructed, operated, or maintained with CVA grant funds to charge users a maximum $5 fee, with no justification. If an operator chooses to charge a higher fee, it must be justified. The proceeds must be accounted for and used by the operator to defray the operation and maintenance costs of the facility as long as the facility is needed and serves its intended purpose. The Service was to evaluate the maximum fee each year for inflation and other potential considerations. The Service has not taken this action to date.

(b) During an open forum discussion at the States Organization for Boating Access Conference on October 6, 2014, we asked States to comment on the following questions:

(1) Should the maximum fee be increased? Decreased?

(2) What are the pros and cons of higher fees?

(3) What alternatives do you suggest other than a maximum fee (Ex: sliding scale)?

(4) Should fees correspond to usage (Ex: gallons pumped, holding tank size)?

(5) Should the method of service influence the fees charged (Ex: self-serve vs. pumpout assistance)?

(c) We received a range of responses that fall into five general categories:

(1) Support no change to the current regulations. The $5 maximum fee works well, and boaters are used to it.

(2) Suggest the regulations be changed to mandate or encourage free pumpout services. Offering free pumpout services increases the number of boaters using pumpouts, decreases the amount of inappropriately disposed boater septic waste, and reduces the burden for operators in States that offer CVA O&M funding.

(3) Suggest the regulations be changed to allow a sliding scale with a $5 maximum for boats with smaller holding tanks, increasing fees with the size of the holding tank. An issue with this option is that not all pumpout equipment is installed with monitoring capability to gauge the number of gallons pumped.

(4) Address the fee issue by maintaining a similar approach as in the current regulations, but increase the fee.

(5) Allow operators to charge a fee according to the prevailing market rate for the area they serve.

(d) We are interested in comments from States, boaters, operators, and interest organizations that address the questions and responses above. When responding, please consider:

(1) The maximum fee that boaters will accept as reasonable for the service they receive;

(2) How the fee schedule may influence boater usage;

(3) How the fee schedule may affect water quality;

(4) If we need to consider State and local laws or codes when establishing a fee schedule; and

(5) How reduced fees may affect operators that incur additional costs for:

(i) Removing septic waste via a waste hauler from an on-site holding tank where municipal sewer service is not available;

(ii) Disposing of boater waste via municipal sewer connections where the municipality charges an additional fee for boater waste (Ex: hazardous waste disposal fee); or

(iii) Other actions to process or dispose of boater waste.

(a) We have received many comments requesting clarity on how to define “recreational vessel” in the context of CVA and whether we should consider allowing CVA-funded facilities to be available to non-recreational vessels (Ex: house boats, commercial vessels). We ask your comments on the following:

(1) How should we define “recreational vessel” for CVA? Should the term include vessels that are not for personal use, but that transport the public to recreational opportunities? (Ex: dive boats, fishing charters)

(2) What criteria might we use that would clearly separate a recreational vessel from a non-recreational vessel?

(b) We have considered that the ultimate benefit of CVA is clean recreational waters that benefit all users. We have engaged in discussions that ask us to consider allowing CVA-funded pumpouts to be available for use by other than what we define as a “recreational vessel.” We ask for comments on the following:

(1) Should CVA-funded facilities be available to serve all vessels, regardless of their designation as recreational or non-recreational? What are the advantages and disadvantages?

(2) If CVA-funded facilities are used to service other than non-recreational vessels, should operators be allowed to charge a higher fee for non-recreational use? (The rationale is that the higher fees would help pay for replacement/repairs of the equipment that will have a reduced useful life due to the additional burden on the equipment.)

(3) Are there any user groups or vessel types that should be fully excluded from consideration for expanding availability of CVA-funded pumpouts? Why or why not?

(4) If we choose to expand eligible use, what restrictions, if any, should be imposed on non-recreational vessels using CVA-funded pumpouts?

(a) The term “useful life” as used in the current CVA regulations was intended to relate to the functional longevity of the equipment. Using this approach, there are multiple considerations that could influence the useful life of a pumpout project, such as environmental effects (marine vs. freshwater environment, weather), biological effects (quagga mussels), amount and type of usage, adequate maintenance, boater education on proper use, and equipment components that are more vulnerable to wear or failure. In addition, it is likely that more than one of these considerations are present at one time, compounding potential impacts. Many States indicate that they have moved away from looking at the operational longevity of the equipment and instead have set a contractual requirement for the number of years the operator must maintain the equipment.

The above information has led us to reconsider our regulatory approach for how long a pumpout facility must be maintained and operational for its intended purpose. We also consider that a primary goal of CVA is to have sufficient available and functional pumpout facilities and that they contribute to a network of pumpout facilities for continued boater access and use.

(b) We typically employ useful life consideration for capital improvements. We define a “capital improvement” as: (1) a new structure that costs at least $25,000 to build; or (2) altering, renovating, or repairing an existing structure if it increases the structure's useful life by 10 years or if it costs at least $25,000. The focus is on structures attached to real property.

The cost of a typical land-based pumpout facility is below the threshold for a capital improvement. Mobile or movable pumpout facilities, such as boats and floating restrooms, we consider personal property and not a capital improvement. We, therefore, must consider that using useful life to measure obligation for a pumpout facility may not benefit the consistency and viability of the CVA program mission.

We suggest the alternative approach of applying in regulation an obligation for a minimum number of years that an operator must maintain an operational pumpout for its intended purpose. After this time, an operator may choose to continue the obligation for another period under the CVA grant program, continue operation outside the CVA grant program, or cease operation of the pumpout facility.

The majority of States responding to an inquiry suggested 10 years, but other suggestions ranged from 4 to 20 years.

(c) We ask for your comments on the following:

(1) Which approach do you suggest is the best for the continued success of CVA, and why do you prefer it?

(2) What obligation do you suggest an operator assume when participating in CVA, including how long an operator must maintain a CVA-funded pumpout facility?

(3) If a State offers O&M funding for existing facilities, should participation in O&M extend the obligation to maintain and operate the facility? For example, if we assume a fixed-year obligation for maintaining a pumpout facility, for each year that the operator receives O&M funding should it extend the obligation an additional year?

(4) What CVA-funded actions would you suggest we identify that, if completed, will restart the fixed-year obligation period? (Ex: replacement, major renovation, etc.)

(5) We discussed in Issue 5 the possibility of expanding the type of vessels that could be serviced by CVA-funded facilities. If we choose the approach to require a fixed-year obligation for a CVA-funded facility, the CVA-funded facility would be obligated to be maintained and functional for the designated period regardless of use, so additional wear and tear would be the responsibility of the operator to address during that period. What advantages, disadvantages, or other effects should we consider regarding this combined approach?

We seek comments from you in response to the topics and questions above. We also seek any relevant comments on other issues related to this proposed rulemaking. We especially seek recommendations for effective and efficient approaches to CVA. After analyzing the comments received from this ANPR, we will proceed with a proposed rulemaking.

All submissions received must include the Service docket number for this notice. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal information—may be made publicly available. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

The Service supports a collaborative process as we develop the proposed rule. After the comment period ends for the ANPR, we will post information on other opportunities to comment prior to the proposed rule, background, and past comments received at: http://fawiki.fws.gov/display/CR5C8/CVA+Review+50+CFR+85+Home.