Federal Register Vol. 80, No.42,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on July 11, 2014 (79 FR 40018). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

Since we issued the NPRM (79 FR 40018, July 11, 2014), we issued a supplemental NPRM (79 FR 70475, November 26, 2014) to amend the costs of compliance and to more clearly state certain compliance requirements. Since we issued the supplemental NPRM, we changed paragraph (e) of this AD for clarity.

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

American Airlines (AA) requested that we modify the Installation Prohibition paragraph (f) to allow installation of an EEC with a software standard earlier than B7.2, and coincident on-wing upgrade of the software standard to B7.2 or later, but prohibit operation of an engine that incorporates a software standard earlier than B7.2. AA states that the EEC original equipment manufacturer does not update the software as part of a component shop visit.

We agree. We modified the Installation Prohibition paragraph (f) to allow installation of an EEC with a software standard earlier than B7.2, but to prohibit operation of an engine with a software standard earlier than B7.2.

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We estimate that this AD affects about 140 engines installed on airplanes of U.S. registry. We also estimate that it would take about 2 hours per engine to comply with this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $23,800.

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

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

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

For the reasons discussed above, I certify this AD:

(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 to the extent that it justifies making a regulatory distinction, 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 amends 14 CFR part 39 as follows:

On February 9, 2015, the FAA published a final rule technical amendment entitled, “Automatic Dependent Surveillance-Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service; Technical Amendment.” In that final rule, which became effective February 9, 2015, the FAA amended 14 CFR part 91. The FAA inadvertently listed the incorrect Amendment Number for part 91 in the header information of the final rule as 91-334. The correct amendment number is 91-336.

In the final rule, FR Doc. 2015-02579, published on February 9, 2015, at 80 FR 6899 make the following correction:

1. On page 6899 in the heading of the final rule, revise “Amdt. No. 91-334” to read “91-336”.

The FAA's authority to issue rules on 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 III, Section 447, Section 44701(a)(2)(A) and (B) and (5). Under that section, the FAA is charged with prescribing regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances, and equipment and facilities for, and the timing of and manner of, the inspecting, servicing and overhauling the FAA finds necessary for safety and commerce. This regulation is within the scope of that authority.

In addition, Public Law 112-95 (February 14, 2012), the “FAA Modernization and Reform Act of 2012” (the Act), in section 319 (Maintenance providers), requires the FAA to issue regulations “requiring that covered work on an aircraft used to provide air transportation under part 121 . . ., be performed by persons in accordance with subsection (b).” Subsection (b), in addition to listing persons authorized under existing regulations, referenced additional terms and conditions in subsection (c) that would apply to persons who provide contract maintenance workers, services, or maintenance functions to a part 121 air carrier for covered work. The Act mandates that the contracting part 121 air carrier be directly in charge of covered work, as defined by the Act, being performed for the carrier under contract, and that the work be done under the supervision and control of the air carrier. These statutory requirements are addressed in this rule.

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) §§ 121.368, 121.369, 135.426, and 135.427. These amendments apply to certificate holders who conduct domestic, flag, or supplemental operations under part 121, and to certificate holders who conduct commuter operations or on-demand operations with aircraft type certificated for a passenger seating configuration, excluding any pilot seat, of ten seats or more 1 under part 135, if the carriers contract any of their maintenance, preventive maintenance, or alteration work to an outside source.2 As required by the Act, this final rule addresses the performance of “covered work.” It codifies the statutory definition of the term, and includes requirements for the performance of that work, to include that the certificate holder must be directly in charge of it; the covered work must be carried out in accordance with the certificate holder's manual; and that work must be carried out under the supervision and control of the certificate holder.

While the Act addresses only contracted work on aircraft operated by part 121 certificate holders, the FAA is also applying the same requirements to part 135 certificate holders who operate the larger aircraft, those with 10 or more seats. As stated elsewhere in this preamble, this rulemaking began before passage of the Act in 2012, and the FAA had proposed amendments to both parts 121 and 135. After the Act's passage, the FAA accommodated the new requirements. In addition to including the requirements mandated by the Act, this final rule requires that each certificate holder who contracts for such work must first have developed policies, procedures, methods, and instructions for the accomplishment of that work, and that if they are followed, the work will be performed in accordance with the certificate holder's maintenance program and maintenance manual. Each certificate holder will be required to ensure that its system for the continuing analysis and surveillance of that work contains procedures for its oversight. All of these policies, procedures, methods, and instructions must be acceptable to the FAA and be included in the certificate holder's maintenance manual. In addition, each certificate holder who contracts any of its maintenance, preventive maintenance, or alteration work to an outside source will be required to provide to its local FAA Certificate Holding District Office a list that includes the name and address of each maintenance provider it uses, and a description of the type of maintenance the contractor would perform.

Air carrier maintenance has evolved from mostly an “in-house” operation to an extended network of maintenance providers that fulfill contracts with air carriers to perform their aircraft maintenance. Under §§ 121.363 and 135.413 each air carrier remains primarily responsible for the airworthiness of its aircraft regardless of whether the maintenance is contracted to another person. Any person performing maintenance for an air carrier must follow the air carrier's maintenance manual. However, air carrier general maintenance manuals often are geared toward in-house maintenance. They fail to provide the necessary instructions to maintenance providers to enable them to follow the air carrier's maintenance programs. This is exacerbated when an air carrier's manual contains proprietary data or other confidential information that an air carrier may not want to share with a maintenance provider. Often, the maintenance provider may also work on a competitor's aircraft. Consequently, air carriers often are reluctant to share such information, and therefore, often do not.

In addition, the FAA has found that, although an air carrier is required to list its maintenance providers and a general description of the work to be done in its maintenance manual, these lists are not always kept up to date, are not always complete, and are not always in a format that is readily useful for FAA oversight and analysis purposes. The FAA needs this information to be complete and readily available in order to plan surveillance of air carrier maintenance programs and determine the extent to which maintenance providers are performing their work according to the air carrier's maintenance manual. Without accurate and complete information on the work being performed for air carriers, the FAA cannot adequately target its inspection resources for surveillance and make accurate risk assessments.

On November 13, 2012, the FAA published a Notice of Proposed Rulemaking (NPRM), Notice No. 12-07, entitled “Air Carrier Contract Maintenance Requirements,” 77 FR 67584. The NPRM proposed to amend the maintenance regulations for domestic, flag, and supplemental operations, and for commuter and on-demand operations for aircraft type certificated with a passenger seating configuration of 10 seats or more.

In addition to proposing requirements pertaining to covered work as required by the Act, the FAA proposed to require operators to develop policies, procedures, methods, and instructions for performing contract maintenance that are acceptable to the FAA and to include them in their maintenance manuals. The NPRM also proposed to require the operators to provide a list to the FAA of all persons with whom they contract their maintenance. These lists would include the physical addresses where the work would be carried out and a description of the type of work performed at each location. The FAA proposed these changes because contract maintenance has increased to over 70 percent of all air carrier maintenance, and numerous investigations found deficiencies in maintenance performed by contract maintenance providers. The proposed changes were intended to help ensure consistency between contract and in-house maintenance and to enhance the oversight capabilities of both the operators and the FAA. The NPRM comment period closed on February 11, 2013.

The FAA received 43 comments. Twenty were from air carriers; nineteen were from Associations that represent air carriers and repair stations; and nine were from individuals involved in aviation. Several commenters disagreed with some of the proposals, and some suggested changes. These will be discussed more fully in the sections below.

The FAA received comments on the following general areas of the proposal:

• “Supervision and Control” and “Directly in Charge”;

• Covered work;

• Redundancy in many areas;

• Exclusion of part 135 air carriers;

• Part 135 and Overall estimated costs;

• Reporting requirement.

The FAA proposed definitions for “directly in charge” and “supervision and control” in new §§ 121.368(a)(3) and (4), and 135.426(a)(3) and (4), but is adopting only the former term. As proposed in the NPRM, this new rule defines directly in charge to mean: “having responsibility for covered work performed by a maintenance provider. A representative of the certificate holder directly in charge of covered work does not need to physically observe and direct each maintenance provider constantly, but must be available for consultation on matters requiring instruction or decision.” The proposal would have defined supervision and control to mean “that a representative of the certificate holder must be available to personally observe the covered work being done to the extent necessary to ensure it is being done properly; and when the representative was not physically present to observe the work, the representative would have had to be available for consultation on matters requiring instruction or decision.” The FAA is not adopting its proposed definition of “supervision and control” for reasons discussed below.

Several commenters—FEDEX, NetJets, Transportation Trades Department (TTD), Aeronautical Repair Station Association (ARSA), and others—objected to the proposed definitions of “directly in charge” and “supervision and control.” They found the definitions confusing and maintained they were not mandated by the Act. The commenters stated they are confused as to whether and how the representative was required to be “available.” The National Business Aviation Association (NBAA) was concerned that some part 135 operators would be required to send the operator's one and only maintenance person to be available on-site anytime an aircraft of the operator was being repaired or undergoing routine maintenance. Ameriflight stated that the term “available” is vague, and may be interpreted as widely as “in the immediate vicinity of,” “by telephone,” or “by internet,” etc. The Professional Aviation Safety Specialists (PASS) stated that the proposed definitions should be more stringent, and that air carriers should be physically present to observe the work being performed. PASS believed that the definitions proposed were contrary to the intent of the Act because, without modification, there would be no change from current practices. TTD expressed the same concerns.

Aviation Technical Services (ATS) stated that the term “to the extent necessary” is insufficient. It believed this term provides no standards for an air carrier, but establishes that the amount of supervision is at the air carrier's discretion until that supervision proves inadequate and a noncompliance occurs. This commenter suggested that this term should either be amended or deleted.

Upon review, the FAA agrees that the proposed definition of “supervision and control” lacks clarity. Accordingly, we are withdrawing this definition because it is not necessary in view of the “directly in charge” requirement, although the regulations will contain the phrase consistent with the Act's use of it. Nearly constant presence for personal observation of work by an air carrier would seem to be required by the proposed “supervision and control” definition, with unfettered discretion by the air carrier to determine the meaning of “to the extent necessary.” Moreover, the last clause in the definition is nearly identical to that in the proposed and adopted definition of “directly in charge.” The FAA acknowledges that physical presence at the maintenance site is unnecessary for two reasons. One, with the state of information technology today, a person can acquire sufficient data to make a reasonably accurate decision or provide adequate instruction without having to be on site. Two, to require the physical presence of an observer at all locations where contracted covered work is performed would be extremely cost prohibitive. As such, the commenters' concerns regarding confusion between the two definitions, and over the interpretation of “to the extent necessary,” are resolved.

On the other hand, the FAA does not believe that the definition of “directly in charge” is confusing. A similar and consistent definition is in §§ 121.378 and 135.435(b) since at least 1966, and in § 145.3 since 2001. That phrase has not caused confusion in all the years it has been in these regulations. Therefore, we believe the definition proposed in the NPRM is clear.

Finally, regarding possible meanings of the term “available,” the FAA notes that Ameriflight is correct that the term could be broadly interpreted. However, this term is not intended to be a limiting factor of the rule. Broad interpretation of “available” allows an air carrier the flexibility to use numerous information technology methods—such as high resolution photographs, text messaging, or the internet—to acquire the information necessary to make decisions and provide instructions. Therefore, this term is retained in the definition of “directly in charge.”

Until this rule, the FAA's maintenance regulations did not define “covered work.” With one change from what it proposed, the FAA now defines “covered work” exactly as set forth in the Act 3 in §§ 121.368(a)(2) and 135.426(a)(2). “Covered work” means any of the following: “(i) Essential maintenance that could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly or if improper parts or materials are used; (ii) Regularly scheduled maintenance; or (iii) A required inspection item on an aircraft.” While it was the FAA's intent to propose without change the definition in the Act, the term “parts or” was inadvertently omitted in front of the word “materials” in subparagraph (i). This omission is corrected in this final rule.

Several commenters requested clarity on two of the terms used in the definition of “covered work”: “essential maintenance” and “regularly scheduled maintenance.” With respect to essential maintenance, ARSA stated that when terms are not defined in the legislation, the agency must rely on current usage.

Regarding ARSA's comment, we note that paragraph (d) of Operations Specifications paragraph D-091. Requirements: Air Carrier Maintenance Providers, provides that “essential maintenance” is “on-wing” maintenance. Nothing in this rule, or in the Act's definition of “covered work” expands essential maintenance to include “off-wing” maintenance. Therefore, the agency is relying on current usage for this term. Paragraph d of Operations Specifications paragraph D-091 states:

We also note that neither the Act nor the FAA's proposed rule attempted to define the term “essential maintenance.” When Congress defined “covered work” in section 319(d)(1) of the Act, one of the three items it included (in subparagraph (A)) was “essential maintenance.” The modifying text limits the scope to maintenance that “could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly. . . .” This limiter was excerpted from the FAA's definition found in operations specifications paragraph D-091 and in Advisory Circular AC 120-16F.

Airbus, Airlines for America (A4A), Aerospace Industries Association (AIA), United Parcel Service (UPS), and a private citizen expressed concern over whether “essential maintenance,” as defined in proposed §§ 121.368(a)(2)(i) and 135.426(a)(2)(i), includes on-wing maintenance but not off-wing maintenance. AIA stated that AC 120-16F defined “essential maintenance” as not encompassing any off-wing maintenance. A4A believes “essential maintenance” traditionally excludes off-wing maintenance, and that expanding the scope to include off-wing maintenance would significantly impact air carriers, and requested the FAA to clarify that “essential maintenance” applies only to on-wing maintenance. Southwest Airlines stated that the lack of “on an aircraft” in the definition for essential maintenance and regularly scheduled maintenance renders the definition over-broad. In addition, various commenters stated there is no justification for on-wing maintenance to be more stringent than off-wing maintenance.

The Act is silent as to whether the maintenance at issue was meant to be restricted to on-wing maintenance or whether off-wing maintenance was also contemplated. The Act's definition of “covered work,” especially in view of its inclusion in subparagraph (C) of: “A required inspection item (as defined by the Administrator),” makes clear that Congress did not intend to change the FAA's longstanding definition of “essential maintenance” to include all off-wing maintenance under the heading of covered work. The FAA's longstanding guidance and practice has been that required inspection items (RII) are safety of flight items on an aircraft that require a “second set of eyes,” that is, an additional inspection and sign off for the item. The provision that covered work includes RIIs “as defined by the Administrator” contemplates continued consistency in this area. Indeed, the NPRM proposed, and this final rule includes, in §§ 121.368(a)(2)(iii) and 135.426(a)(2)(iii): “A required inspection item on an aircraft.” Although this subparagraph is separate from and in addition to the inclusion of “essential maintenance” in the Act's subparagraph (A) of § 319(d)(1), the overall context is clear that essential maintenance is meant to continue to apply only to on-wing maintenance.

We agree with ARSA that that when terms are not defined in this legislation, the agency should rely on current usage. Accordingly, the term “essential maintenance,” as used both in the Act and in this final rule, is restricted to on-wing maintenance. We note, however, that covered work also includes “Regularly scheduled maintenance.” This term necessarily includes some “off-wing” maintenance. This would occur, for example, in cases in which a component (e.g., an engine, landing gear, etc.) is scheduled for removal and overhaul, or when other off-wing maintenance is scheduled at some regular interval. Covered work, for purposes of §§ 121.368(b), (c), and (d) and 135.426(b), (c), and (d), does not include other non-scheduled or non-routine off-wing maintenance.

Several commenters stated that the proposed regulations do not address non-scheduled maintenance. The FAA notes that covered work, both as proposed and in this final rule, includes both essential maintenance and required inspection items, both of which include non-scheduled maintenance. In addition, the other new requirements that address both covered work and all other contracted maintenance, such as the requirements for air carriers to develop policies, procedures, methods, and instructions for accomplishing all contracted maintenance, necessarily include both scheduled and non-scheduled work.

Part 135 contains nearly identical requirements to those in part 121 for maintenance performed on certificate holders' aircraft. For example, similar to the authorizations in part 121, part 135 permits persons other than the certificate holder to perform maintenance on aircraft operated under that part. (See, e.g., §§ 135.425 and 135.437.) Also similar to requirements in part 121, part 135 requires that a certificate holder's manual contain the maintenance program that must be followed when maintenance is performed on the certificate holder's aircraft. (See § 135.427(b).) Further, similar to the requirement in § 121.369(a), § 135.427(a) requires each certificate holder to put in its manual a list of persons with whom it has arranged for the performance of its maintenance.

Even though both parts 121 and 135 require that the certificate holders' maintenance manuals and programs be followed for both in-house and out-sourced maintenance, as we explained in the NPRM, both the FAA and the Office of Inspector General found that too often certificate holders' programs were not followed by contract maintenance providers. The FAA is adopting this final rule in an attempt to close this gap. The agency believes that by requiring certificate holders to develop policies, procedures, methods, and instructions for the accomplishment of contract maintenance in accordance with the certificate holders' programs, contract maintenance providers will be better equipped to more closely follow them. Moreover, by enhancing the existing requirement that certificate holders provide a list of their maintenance providers to the FAA, to now include each provider's physical address where the work is being performed and a description of the maintenance being done at each location, the FAA's ability to provide meaningful surveillance will be enhanced. The need for these enhancements applies equally to both part 121 and part 135 certificate holders.

Several commenters stated that the FAA erred in assuming the estimated costs of compliance would be less for part 135 operators than for part 121 operators. The FAA agrees, and to address this issue the FAA is using the same cost estimating methodology for both part 121 and part 135 air carriers. The cost estimates included in the regulatory evaluation for this final rule are based on entity size (large vs. small) rather than on whether a certificate holder operates under part 121 or part 135, because entity size is a more relevant parameter for cost estimation than the part under which an air carrier operates.

Several commenters believed the cost estimates for the proposal did not take into consideration added administrative costs, people resources, technology development, data systems, and publications infrastructure. The FAA does not agree. The agency believes that administrative costs, people resources, technology development, data systems, and publications infrastructures should already be in place to comply with current regulatory requirements. Therefore, these are not additional costs of the rule.

The agency estimated the costs associated with creating lists and any changes to the manual.

Several commenters stated that the FAA did not consider training costs.

The FAA agrees that additional costs would be incurred in training personnel on the changes to the contract maintenance requirements. These training costs have been captured in the “familiarization cost” section of the regulatory evaluation. The FAA believes the term “familiarization” is a more appropriate term than “training” to describe these costs, not only because there is a difference in the scope and extent of material covered in these two terms, but also because familiarization-type training is given to individuals who are already qualified; therefore, “familiarization” is a more appropriate descriptive term.

A few commenters stated that the FAA did not consider software and auditor costs.

This rule does not require development of new technology. Existing software (e.g., any word processing software) can be used to make the changes required by this final rule, so the cost for software is a sunk cost. Regarding auditor costs, the FAA did capture these costs in the NPRM, but for part 121 air carriers only, believing at the time that auditor costs for part 135 air carriers would be negligible. In view of the comments we received on this issue, in this final rule, the FAA captured these costs for both part 121 and 135 air carriers.

See the Regulatory Evaluation for more in-depth details.

Southwest Airlines stated that the regulations proposed appear to duplicate various existing regulations, and are therefore redundant. The company stated that proposed § 121.368(e) and (f) would seem to duplicate the regulatory requirements currently found in §§ 121.367 “Maintenance, preventive maintenance, and alterations programs,” and 121.373 “Continuing analysis and surveillance.” The company asserted that paragraph (h) of both proposed §§ 121.368 and 135.426 would seem to duplicate current requirements in §§ 121.369(a) and 135.427(a). And further, that §§ 121.368(g) and 121.369(b)(10) appear to duplicate existing requirements in §§ 121.133, 121.135, 121.361, 121.363, 121.365, 121.367, and 121.369.

The FAA notes that while the amendments proposed may seem to overlap some of the existing requirements in §§ 121.361, 121.363, and 121.365, those regulations address different aspects of maintenance, whereas §§ 121.368, 121.369(b)(10), 135.426 and 135.427(b)(10) establish additional conditions for the arrangement of maintenance and establish additional requirements for providing and keeping an updated list of contract maintenance providers, including the type of maintenance they are performing. For example, § 121.367 requires each operator to have an inspection program that covers all maintenance. Sections 121.369(b)(10) and 135.427(b)(10) require that the new policies, procedures, methods, and instructions for accomplishing contracted maintenance in accordance with the air carriers' programs be included in the air carriers' manuals. In addition, the new rules will require air carriers to provide the necessary maintenance instructions to maintenance providers in order for them to perform the air carriers' maintenance, whether or not their maintenance manuals contain proprietary data, or other confidential information that an air carrier may be reluctant to share.

Finally, while §§ 121.368 and 121.369 are similar in many respects, they are different in their intent. Section 121.369 addresses in-house maintenance performed by air carrier personnel, while § 121.368 addresses contract maintenance. Their similarity reflects the overall intent to standardize maintenance between in-house and contract maintenance, and to ensure overall consistency and safety.

Therefore, the FAA is not making any changes to these sections based on the commenters' concerns about duplication.

Current §§ 121.369(a) and 135.427(a) require each air carrier to include in its manual a list of persons with whom it has arranged for the performance of maintenance, preventive maintenance, and alterations, including a general description of that work. As proposed, and as adopted in this final rule, §§ 121.368(h) and 135.426(h) will require each certificate holder who contracts for maintenance, preventive maintenance, or alterations to provide to the FAA a list that includes each contract maintenance provider's name and physical address of where the work will be carried out, and a description of the type of maintenance, preventive maintenance, or alteration that is to be performed at each location.

National Air Transportation Association (NATA) stated that the proposed additional requirements pertaining to the listing of maintenance providers would appear to create a new requirement that the FAA would have to approve the addition of a maintenance provider on the list before that provider could perform contract maintenance for the certificate holder. NATA argues that, if this is the case, it would create an undue burden for part 135 certificate holders, who operate on an ad-hoc basis to locations that are unpredictable and often change, so that they cannot account for those entities with whom they engage in unplanned maintenance.

The FAA believes the issue raised by NATA would not arise because § 135.426(h) does not require that a maintenance provider be on the list and be pre-approved by the FAA before an air carrier may contract with it to perform maintenance. Neither § 121.368(h) nor § 135.426(h) prohibit deletions or additions to the list—these rules simply require that the updated list be provided to the FAA by the last day of each calendar month. In the situation outlined by NATA, a part 135 operator would contract with maintenance providers to perform maintenance, including unplanned maintenance, as provided in § 135.413, then update its list and submit it to the FAA by the end of the calendar month.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

This rule responds to a Congressional mandate and is expected to prevent 2 accidents. The benefit for the rule is estimated to be $142.8 million or $92.0 million present value at 7% over 10 years. The estimated cost for the rule is $20.4 million ($14.1 million, present value). More detailed benefit and cost information is presented below.

Certificate holders who conduct domestic, flag, or supplemental operations under part 121, and certificate holders who conduct commuter operations or on-demand operations with aircraft type certificated for a passenger seating configuration, excluding any pilot seat, of ten seats or more under part 135.

• All monetary values were expressed in constant 2014 dollars. We calculated the present value of the potential benefit stream by discounting the monetary values using a 7 percent interest rate from 2015 to 2024.

• The rule is expected to take effect in 2015.

• The value of a statistical life (VSL) is $9.2 million.

• VSL in future years were estimated to grow by 1.18 percent per year (the Congressional Budget Office estimated that there will be an expected 1.18 percent annual growth rate in median real wages over the next 30 years) before discounting to present value.

• The value of medical and legal costs associated with fatal injuries was estimated at about $171,000.

• The value of a minor injury was $27,600.

• The value of medical and legal costs associated with minor injuries was estimated at about $3,000.

• The FAA also estimates the cost of accident investigations. Accidents reported by the NTSB incur investigation costs from the NTSB, the FAA, and the private sector. The total accident investigation cost per accident is assumed to be $570,968.

• As per DOT guidance, we assume that real wages increase at 1.2 percent per year.

For the benefits, we have made two significant changes to the final rule regulatory analysis:

• Since the NPRM published, the FAA has identified 2 accidents which could have been prevented by this rule. We estimate the benefit value for preventing similar future accidents will be about $92.0 million present value over 10 years.

• In this final rule, we note this rule is Congressionally mandated for part 121 air carriers.

For the cost section, we have made three significant changes to the final rule regulatory analysis, which have increased the costs from about $1.6 million to $14.1 million present value over 10 years:

• The cost estimates included in the regulatory evaluation for this final rule are based on entity size (large vs. small) rather than on whether a certificate holder operates under part 121 or part 135, because entity size is a more relevant parameter for cost estimation than whether the air carrier operates under part 121 or part 135.

• For this final rule, we used the commenters' estimates (when they were available) rather than our own, which generally raised the costs.

• We added familiarization costs.

A significant part of this rule is Congressionally mandated for part 121 air carriers.

The FAA identified two accidents that could have been prevented by this rule.

One of the accidents was operated by Air Midwest (part 121/135 operator) under part 121 service at the time. This accident resulted in 21 fatalities and 1 minor injury. The other accident was operated by Emery Worldwide Airlines, and resulted in 3 fatalities. The FAA believes that the benefits justify the costs for part 121 and part 135 operators. In addition to the casualties, 2 aircraft were destroyed. After factoring in the effectiveness of the rule to prevent these accidents, the FAA estimates the benefit value to be $142.8 million, or $92.0 million present value at 7% over 10 years.

From 2015 to 2024, the cost to air carriers and the FAA would be approximately $20.4 million ($14.1 million, present value), as shown in table below.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA identified a total of 222 operators with less than 1,500 employees—these are classified as small entities.

The FAA believes that this final rule will not have a significant economic impact on a substantial number of small entities for the following reason:

The FAA estimates that their ratio of annualized costs to annual revenue is between 0.001% and 0.010%, which is not considered a significant economic impact. Therefore, as provided in section 605(b), the Administrator of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it improves safety and as a legitimate domestic objective therefore will not create unnecessary obstacles to the foreign commerce of the United States.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This final rule will impose the following amended information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for these information collections will be published in a future Federal Register document.

Summary: Each operator which seeks to obtain, or is in possession of, an air carrier operating certificate must comply with the requirements of 14 CFR part 121 in order to maintain data which is used to determine if the air carrier is operating in accordance with minimum safety standards. Original certification is completed in accordance with part 119.

Each operator which seeks to obtain, or is in possession of a commuter or on-demand operating certificate must comply with the requirements of 14 CFR part 135 in order to maintain data which is used to determine if the air carrier is operating in accordance with minimum safety standards. Original certification is completed in accordance with part 119.

Continuing certification is completed in accordance with part 121 and part 135. One form is used. The use of this form was taken into account in estimating the burden for this section.

Use: This information collection supports the Department of Transportation's strategic goal of safety. Specifically, the goal is to promote the public health and safety by working toward the elimination of transportation-related deaths, injuries, and destruction of property.

Title 49 U.S.C. 44702, empowers the Secretary of Transportation to issue air carrier operating certificates and to establish minimum safety standards for the operation of the air carrier to whom such certificates are issued. Under the authority of Title 49 CFR 44701, Federal Aviation Regulations part 121 and part 135 prescribe the terms, conditions, and limitations as are necessary to ensure safety in air transportation.

Respondents (including number of): There are 80 part 121 air carriers and 168 part 135 operators affected by this rule.

Frequency: The manual requirements will be submitted as part of the submission of maintenance manuals to the FAA for acceptance.

Annual Burden Estimate: This rule requires that the air carrier's manual has all the policies, procedures, methods, and instructions for the accomplishment of maintenance by another person to include the information necessary for certificate holders to ensure all maintenance is performed in accordance with its maintenance program. The rule also requires that the air carrier provide a list with the name and address of each maintenance provider used and the type of maintenance that is to be performed.

This rule will require affected air carriers to develop policies, procedures, methods, and instructions for performing contract maintenance that are acceptable to the FAA and to include them in their maintenance manuals. The rule also requires the air carriers to provide a list to the FAA of all persons with whom they contract their maintenance.

To calculate the cost of revising and updating the manual and revising and updating the list, the following assumptions were used, paralleling those in the regulatory evaluation:

• 222 small air carriers.

• 26 large air carriers.

• Small air carriers: amount of time revising manual (manager): 16 hours.

• Small air carriers: amount of time revising manual (technical writer): 40 hours.

• Small air carriers: amount of time revising manual (editor): 2 hours.

• Small air carriers: amount of time maintaining manual (manager): 16 hours.

• Small air carriers: amount of time maintaining manual (technical writer): 40 hours.

• Small air carriers: amount of time maintaining manual (editor): 2 hours.

• Large air carriers: amount of time revising manual (manager): 60 hours.

• Large air carriers: amount of time revising manual (technical writer): 30 hours.

• Large air carriers: amount of time revising manual (editor): 30 hours.

• Large air carriers: amount of time maintaining manual (manager): 104 hours.

• Large air carriers: amount of time maintaining manual (technical writer): 156 hours.

• Large air carriers: amount of time maintaining manual (editor): 156 hours.

• Small air carriers: amount of time to provide the list (manager): 10 hours.

• Small air carriers: amount of time to provide the list (technical writer): 3 hours.

• Small air carriers: amount of time to provide the list (auditor): 10 hours.

• Small air carriers: amount of time to maintain and update the list (manager): 12 hours.

• Small air carriers: amount of time to maintain and update the list (technical writer): 12 hours.

• Small air carriers: amount of time to maintain and update the list (auditor): 12 hours.

• Large air carriers: amount of time to provide the list (manager): 40 hours.

• Large air carriers: amount of time to provide the list (technical writer): 20 hours.

• Large air carriers: amount of time to provide the list (auditor): 20 hours.

• Large air carriers: amount of time to maintain and update the list (manager): 104 hours.

• Large air carriers: amount of time to maintain and update the list (technical writer): 156 hours.

• Large air carriers: amount of time to maintain and update the list (auditor): 156 hours.

• For the wages, we assume that there will be a 1.2 percent projected annual increase in real wages.

Cost = 222 × ((16 hours × $66.08) + (40 hours × $40.02) + (2 hours × $35.76) + (10 hours × $66.08) + (3 hours × $40.02) + (10 hours × $41.28)) = $870,966.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $66.87) + (40 hours × $40.50) + (2 hours × $36.19) + (12 hours × $66.87) + (12 hours × $40.50) + (12 hours × $41.77)) = $1,010,576.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours x $67.68) + (40 hours × $40.99) + (2 hours × $36.62) + (12 hours × $67.68) + (12 hours × $40.99) + (12 hours × $42.27)) = $1,022,703.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $68.49) + (40 hours × $41.48) + (2 hours × $37.06) + (12 hours × $68.49) + (12 hours × $41.48) + (12 hours × $42.78)) = $1,034,976.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $69.31) + (40 hours × $41.98) + (2 hours × $37.51) + (12 hours × $69.31) + (12 hours × $41.98) + (12 hours × $43.29)) = $1,047,395.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $70.14) + (40 hours × $42.48) + (2 hours × $37.96) + (12 hours × $70.14) + (12 hours × $42.48) + (12 hours × $43.81)) = $1,059,964.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $70.98) + (40 hours × $42.99) + (2 hours × $38.41) + (12 hours × $70.98) + (12 hours × $42.99) + (12 hours × $44.34)) = $1,072,684.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $71.84) + (40 hours × $43.51) + (2 hours × $38.87) + (12 hours × $71.84) + (12 hours × $43.51) + (12 hours × $44.87)) = $1,085,556.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $72.70) + (40 hours × $44.03) + (2 hours × $39.34) + (12 hours × $72.70) + (12 hours × $44.03) + (12 hours × $45.41)) = $1,098,583.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 222 × ((16 hours × $73.57) + (40 hours × $44.56) + (2 hours × $39.81) + (12 hours × $73.57) + (12 hours × $44.56) + (12 hours × $45.95)) = $1,111,766.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Cost = 26 × ((60 hours × $66.08) + (30 hours × $40.02) + (30 hours × $35.76) + (40 hours × $66.08) + (20 hours × $40.02) + (20 hours × $41.28)) = $273,193.

Time = 26 × (60 hours + 30 hours + 30 hours + 40 hours + 20 hours + 20 hours) = 5,200.

Cost = 26 × ((104 hours × $66.87) + (156 hours × $40.50) + (156 hours × $36.19) + (104 hours × $66.87) + (156 hours × $40.50) + (156 hours × $41.77)) = $1,006,396.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $67.68) + (156 hours × $40.99) + (156 hours × $36.62) + (104 hours × $67.68) + (156 hours × $40.99) + (156 hours × $42.27)) = $1,018,473.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $68.49) + (156 hours × $41.48) + (156 hours × $37.06) + (104 hours × $68.49) + (156 hours × $41.48) + (156 hours × $42.78)) = $1,030,695.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $69.31) + (156 hours × $41.98) + (156 hours × $37.51) + (104 hours × $69.31) + (156 hours × $41.98) + (156 hours × $43.29)) = $1,043,063.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $70.14) + (156 hours × $42.48) + (156 hours × $37.96) + (104 hours × $70.14) + (156 hours × $42.48) + (156 hours × $43.81)) = $1,055,580.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $70.98) + (156 hours × $42.99) + (156 hours × $38.41) + (104 hours × $70.98) + (156 hours × $42.99) + (156 hours × $44.34)) = $1,068,247.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $71.84) + (156 hours × $43.51) + (156 hours × $38.87) + (104 hours × $71.84) + (156 hours × $43.51) + (156 hours × $44.87)) = $1,081,066.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $72.70) + (156 hours × $44.03) + (156 hours × $39.34) + (104 hours × $72.70) + (156 hours × $44.03) + (156 hours × $45.41)) = $1,094,038.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = 26 × ((104 hours × $73.57) + (156 hours × $44.56) + (156 hours × $39.81) + (104 hours × $73.57) + (156 hours × $44.56) + (156 hours × $45.95)) = $1,107,167.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Cost = ($870,966 + $1,010,576 + $1,022,703 + $1,034,976 + $1,047,395 + $1,059,964 + $1,072,684 + $1,085,556 + $1,098,583 + $1,111,766 + $273,193 + $1,006,396 + $1,018,473 + $1,030,695 + $1,043,063 + $1,055,580 + $1,068,247 + $1,081,066 + $1,094,038 + $1,107,167) = $20,193,086

Time = ((10 × 17,982 hours) + 5,200 hours + (9 × 21,632 hours)) = 379,708.

Cost = $20,193,086/10 = $2,019,309.

Time = 379,708/10 = 37,971 hours.

The FAA has to ensure that the air carriers' manuals are revised and maintained.

To calculate the cost of ensuring that the manuals are revised and maintained, the following assumptions were used, paralleling those in the regulatory evaluation:

• 248 small and large air carriers.

• Amount of time to ensure that each manual is revised (FAA inspector): 1 hour.

• Amount of time to verify manual maintenance (FAA inspector): 1 hour.

• For the FAA inspector wage we assume that there will be a 1.2 percent projected annual increase.

Cost = 248 × (1 hour × $64.05) = $15,884.

Time = 248 × (1 hour) = 248.

Cost = 248 × (0.25 hour × $64.82) = $4,019.

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour × $65.59) = $4,067

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour × $66.38) = $4,116.

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour × $67.18) = $4,165.

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour × $67.98) = $4,215.

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour × $68.80) = $4,266.

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour × $69.63) = $4,317.

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour × $70.46) = $4,369.

Time = 248 × (0.25 hour) = 62.

Cost = 248 × (0.25 hour x $71.31) = $4,421.

Time = 248 × (0.25 hour) = 62.

Cost = ($15,884 + $4,019 + $4,067 + $4,116 + $4,165 + $4,215 + $4,266 + $4,317 + $4,369 + $4,421) = $53,837.

Time = (248 hours + (9 × 62 hours)) = 806.

Cost = $53,837/10 = $5,384.

Time = 806/10 = 81 hours.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in Chapter 3, paragraph 312d, and involves no extraordinary circumstances.

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. In the NPRM, the FAA requested comments on whether the proposed rule should apply differently to intrastate operations in Alaska. The agency did not receive any comments, and has determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

An electronic copy of a rulemaking document my be obtained by using the Internet—

1. Search the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or

3. Access the Government Publishing Office's Web page at http://www.thefederalregister.org/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 in support of the annual marine event, the California Ironman Triathlon (Item 2 on Table 1 of 33 CFR 100.1101), held on March 28, 2015. The Coast Guard will enforce the special local regulations on the Harbor and Federal Channel in Oceanside on March 28, 2015 from 6:30 a.m. to 9:30 a.m. The triathlon course will commence at the Oceanside Harbor boat ramp then proceed outbound through the federal channel to the Oceanside Harbor Entrance, and then proceed back through the channel to the boat ramp.

Under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This document is issued under authority of 5 U.S.C. 552(a) and 33 CFR 100.1101. In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and local advertising by the event sponsor.

If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

The CSX Corporation, who owns and operates this swing bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.995 to facilitate bridge upgrades.

Under the regular operating schedule, the Seaboard System Railroad (CSX Railroad) Bridge, mile 2.5, in Hopewell, VA, must open on signal if at least 24 hour notice is given. The draw normally is in the closed to navigation position and only opens when proper notice is given. The Seaboard System Railroad (CSX Railroad) Bridge has a vertical clearance in the closed position to vessels of 10 feet above mean high water.

Under this temporary deviation, the drawbridge will be maintained in the closed to navigation position from 8 a.m. Saturday March 8, 2015, until 8 p.m. Sunday March 9, 2015. The bridge will operate under the normal operating schedule at all other times. Emergency openings cannot be provided. There are no alternate routes for vessels transiting this section of the Appomattox River but vessels may pass before 8 a.m. on March 8, 2015, and after 8 p.m. on March 9, 2015, with advance notice.

Appomattox River is used by a variety of vessels including commercial and recreational vessels. The Coast Guard has carefully coordinated the restrictions with these waterway users. The Coast Guard will also inform additional waterway users through our Local and Broadcast Notice to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation. Mariners able to pass under the bridge in the closed position may do so at any time. Mariners are advised to proceed with caution.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. This bridge has operated under one-hour notice for openings since put in place in 1972 without concern. Local community and waterway users are aware and accustomed to the operating schedule. In over 40 years of operation of this bridge, no complaints have been received by the Coast Guard. Waterway users understand how the bridge operates and this Final Rule simply codifies its operation. Completing the process of an NPRM is unnecessary because this operating practice is in use and accepted by the waterway users.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register (FR). The bridge has been operating under the one-hour advance notification schedule for over 40 years. This final rule codifies the existing schedule in 33 CFR part 117. Therefore, providing a 30-day notice before making this rule effective is unnecessary.

The SR 3090 swing span bridge, locally known as the Fourchon Bridge, across the Chevron Oil Company Canal, mile 0.05, at Fourchon, LA has a vertical clearance of 12.0 feet above Mean High Water elevation, 3.0 feet at Mean Sea Level in the closed-to-navigation position, unlimited in the open position. Presently, this bridge opens on signal if at least one-hour advanced notification is given to the Greater Lafourche Port Commission 24-hour dispatcher. This operating schedule has been in place since the bridge was constructed in 1972; however, this custom and operating schedule was never codified in subpart B, Specific Requirements, under 33 CFR part 117. This final rule codifies the existing operating schedule for the bridge. Since construction of the bridge, no complaints have been received by the Coast Guard from waterway users concerning the operation of the bridge.

Navigation on the waterway consists of oilfield related equipment, houseboats, shrimp boats, and other recreational craft. The bridge has opened on average one time per month for the passage of oil field equipment, houseboats, shrimp boats, and other recreational crafts. During the shrimp season, the bridge may open 8-10 times per month.

Under 33 CFR 117.5, bridges are required to open on signal for the passage of vessels except as otherwise authorized or required. The SR 3090 bridge is currently untended and maintained in the closed-to-navigation position. The bridge opens for the passage of vessels if a one-hour advance notice to the Greater Lafourche Port Commission 24-hour dispatcher. Title 33 CFR 117.40 requires that, if approved, a description of the full operation of the advance one-hour notice on the drawbridge will be added to subpart B of this part.

This present operating schedule is known and understood by the local waterway users, but this operating schedule is not reflected in the CFR. This rule codifies this schedule as a Special Operating Requirement under 33 CFR part 117, subpart B.

The operation of the draw of the SR 3090 swing span bridge across the Chevron Oil Company Canal, mile 0.05, at Fourchon, LA is as follows: The draw of the SR 3090 bridge at Fourchon shall open on signal if at least one-hour notice is given.

We developed this Final Rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The Coast Guard does not consider this rule to be “significant” under that Order because the rule only codifies the current operating schedule for the SR 3090 bridge which is already understood, known, and accepted by the local bridge and waterway users.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels who wish to transit the bridge. However, the affect would be negligible as this rule codifies the current custom and operating schedule of the bridge that mariners are accustomed to and the bridge would still be able to open with advance notice.

This Final Rule formalizes the drawbridge operation custom that has been in place since 1972. Therefore, mariners would not be affected given that they would not experience any alteration of current expectations with regard to current drawbridge operation.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

This rule does not use a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves the promulgation of special operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

Purposes of Program: The purposes of the STEP program are to: (1) Promote increased collaboration between TEAs and the SEAs and LEAs that serve students from affected tribes; and (2) build the capacity of TEAs to conduct certain administrative functions under certain ESEA formula grant programs for eligible schools, as determined by the TEA, SEA, and LEA.

We published a notice of proposed priorities, requirements, definitions, and selection criteria (NPP) for this program in the Federal Register on October 31, 2014 (79 FR 64716). That notice contained background information and our reasons for proposing the particular priorities, requirements, definitions, and selection criteria. This notice of final priorities, requirements, definitions, and selection criteria contains several significant changes from the NPP. We fully explain these changes in the Analysis of Comments and Changes section below.

Public Comment: In response to our invitation in the NPP, five parties submitted comments on the proposed priorities, requirements, definitions, and selection criteria.

We group major issues according to subject. Generally we do not address technical and other minor changes.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priorities, requirements, definitions, and selection criteria since publication of the NPP follows.

Comment: One commenter stated that the STEP program was a good idea. Several commenters supported specific provisions in the NPP, including the requirement for projects to include at least one public school, the provision permitting the inclusion of off-reservation schools, the provision requiring the preliminary and final agreements to be signed by the TEA, SEA, and LEA, and the program-specific selection criteria.

Discussion: We appreciate the support for the STEP program and for the specific provisions in the NPP.

Changes: None.

Comment: Three commenters suggested that the Department expand the STEP program to allow TEAs and tribes to: coordinate all education programs; provide support services and technical assistance to schools serving tribal children; provide tribal “wrap around” services in schools located on or near reservations and service areas; perform child find duties; and develop or update tribal education codes.

Discussion: We agree that social services and other support services are very important, and that coordination and cooperation between the tribe and LEA regarding such services, including “wrap around” services, can lead to positive outcomes for students. We also agree that it would be appropriate for a STEP project to include cooperation between the TEA and the LEA or its schools in coordinating such services, assuming the STEP funds are not used for direct services or to supplant other funding sources. For example, a TEA that currently operates a preschool program could include provisions in the preliminary and final agreements regarding the transition of children to public school kindergarten, including required meetings between the relevant school district staff and tribal preschool staff, even if not directly tied to one of the ESEA formula grant programs. Therefore, we are revising the preliminary agreement requirements to include other activities as agreed by the parties. We are also revising the first purpose under the Purposes of Program section to broaden the scope of STEP.

Many tribes operate schools funded by the Bureau of Indian Education (BIE), or have BIE-operated schools on their reservation. While it would not be consistent with the purposes of STEP for a grantee to use STEP funds for direct services at those schools, STEP funds could be used to coordinate services provided by BIE schools and public schools. In such event, the parties would include specific provisions for such coordination in the preliminary and final agreements.

With respect to the suggestion to expand the STEP program for child find purposes, it would be duplicative and not an appropriate use of STEP funds to conduct child find for children with disabilities because there are other sources of funding, such as funds under Parts B and C of the Individuals with Disabilities Education Act (IDEA), that are specifically provided for that purpose. Under Parts B and C of the IDEA, the Department provides funds to tribal entities through the BIE, which may be used for child find purposes to identify infants, toddlers, and children with disabilities ages birth through five. Additionally, under the IDEA, the BIE is responsible for identifying, locating, and evaluating children with disabilities on reservations ages five through 21 enrolled in BIE-funded elementary and secondary schools. For infants and toddlers residing on reservations, the State lead agency is responsible under IDEA Part C for ensuring that children with disabilities ages birth through three residing in the State are identified, located, and evaluated. With respect to all other children ages three through 21 on reservations, the SEA is responsible for ensuring that all children with disabilities residing in the State are identified, located, and evaluated. However, increased collaboration between the TEA, SEA, and LEA, which is a likely outcome of a STEP project, can lead to improved communications regarding all services, including the early identification, location, and evaluation of children with disabilities.

With regard to developing tribal education codes, we understand that such codes are important. Moreover, developing a tribal education code may be helpful in implementing a STEP project, and TEAs may wish to pursue this activity. However, we have chosen not to focus on updating and developing education codes because of the limited resources available for STEP and because we wanted to focus attention on the broader purpose of STEP grants: Fostering collaboration with SEAs and LEAs.

We recognize that several of the commenters' suggested changes reflect provisions that are in section 7135 of the ESEA (“Grants to Tribes for Education Administrative Planning and Development”). The STEP program is funded under the general national activities authority in section 7131 of the ESEA, and is different from the program in section 7135. Thus, we are not required to include the activities that are in that program, and decline to do so for the reasons explained above.

Changes: We have revised the requirements of the preliminary agreement by adding paragraph (a)(2) to require an explanation of how the parties will cooperate to administer any other educational programs or services upon which the parties have agreed. We have also revised the first purpose in the “Purposes of Program” section of this notice to correspond with the broader cooperative goal, by deleting the phrase “in the administration of certain ESEA formula grant programs.”

Comment: One commenter suggested that tribes or TEAs should have the ability to apply directly for ESEA formula funding under the STEP program and assume the appropriate authority. Another commenter stated that when SEAs and LEAs manage “pass-through” dollars, those agencies retain money rather than spending all of the funds on students. The commenter requested that TEAs receive the funds and manage the programs.

Discussion: We cannot change the underlying statutory requirements of the ESEA State-administered formula grant programs through this regulatory action, including the provisions requiring that we grant the funds to SEAs, which then distribute them to LEAs, or the provisions permitting a certain portion of funds to be used for SEA-level and LEA-level administration of the programs. The STEP program does not provide funds for direct services. The purpose of the STEP program is to increase collaboration between TEAs, SEAs, and LEAs, and to increase the capacity of the TEA so that the TEA can assume LEA-type or SEA-type functions, within the existing statutory framework.

Changes: None.

Comment: Although one commenter expressed support for the two priorities—one for established TEAs and one for TEAs with limited prior experience—two other commenters suggested that we modify the respective scopes of the two priorities by changing the definition of “established TEA.” Because the effect of the priorities largely turns on the definition of “established TEA,” we discuss those comments here.

These commenters stated that the proposed definition of “established TEA” is too broad and would include many very small TEAs that would meet the proposed definition but would be at a competitive disadvantage compared to larger TEAs. One of these commenters recommended that we narrow the definition of “established TEA” by including only those TEAs that have a specified number of staff members, an agreement with the SEA or LEA, and an existing tribal education code. The other commenter requested that we limit established TEAs to those TEAs with sufficient staff capacity, as determined by the tribe, as well as an agreement with the SEA or LEA and an existing tribal education code. These two commenters also did not support the proposed criteria that an established TEA have administered an education program or grant program, suggesting that these factors do not demonstrate that a TEA is, in fact, established. Another commenter requested that we provide TEAs with limited prior experience more technical assistance in preparing and implementing the grant.

Discussion: We created two priorities to minimize any competitive disadvantage that newly created TEAs and TEAs with relatively little experience operating education programs may have compared to current STEP grantees or TEAs that have existing relationships with their SEAs or LEAs. We agree that a modified definition of “established TEA” will better meet the objectives of the STEP program. Accordingly, we are revising the final definition of “established TEA” to specify some criteria that will be part of the definition of “established TEA,” as well as optional criteria that we may choose from and announce in the notice inviting applications. This flexibility will permit the Department to learn from each competition and apply its learning to subsequent competitions to better tailor the priorities to the program objectives.

Based on experience with the current STEP grants, we agree that a prior relationship with an SEA or LEA is a strong predictor of success, and should always be one of the criteria for classification as an established TEA. However, we do not agree that the other criteria that the commenters suggested should always be used to define an “established TEA.” First, we believe that we should reserve flexibility regarding the tribal education code criterion because there are so few tribes that have developed a tribal education code at this time. Second, we do not agree that size of staff should be a factor, due to the large variations in size among tribes and their memberships. Finally, we do not agree that we should add a tribally defined criterion of capacity, as that could allow TEAs to determine whether they are established, without regard to objective criteria applied to all TEAs.

We believe that experience administering Federal grants and education programs, such as a tribal preschool program, provides a strong foundation for tribal capacity and should be retained as optional criteria. Thus, we are revising the definition of “established TEA” accordingly.

With respect to the comment requesting technical assistance, we plan to provide technical assistance for the STEP competition.

Changes: We have revised the definition of “established TEA” to mean a TEA that has previously received a STEP grant, or a TEA that has a preexisting relationship with an SEA or LEA as evidenced by a written agreement between the TEA and SEA or LEA, and meets one or more of the following criteria (to be determined annually): Has an existing tribal education code, has administered at least one education program within the past five years, or has administered at least one Federal, State, local, or private grant within the past five years.

Comment: None.

Discussion: In further reviewing proposed priority 2, we have decided that it is unnecessary to state in the priority that a TEA with limited experience includes a TEA that has not received a previous STEP grant. This is already part of the definition of the term “TEA with limited experience.”

Changes: We have revised priority 2 by deleting the language “a TEA that has not received a previous STEP grant.”

Comment: One commenter asked the Department to clarify the functions to be performed by the TEA. The commenter noted that, under the ESEA Formula Grant Programs section of the proposed requirements, STEP projects must include at least one SEA-administered ESEA formula grant program, while paragraph (b) of that section provides TEAs with flexibility to perform SEA- or LEA-type functions under the chosen ESEA program.

Discussion: Generally, applicants can choose between SEA-type and LEA-type functions. We included the requirement that at least one SEA-administered program (e.g., title I, title II, School Improvement Grants, etc.) be included in a project because we have expanded the scope of STEP to permit the incorporation of the ESEA title VII formula grants. Title VII formula grants are direct grants to LEAs; SEAs are not involved at all with these grants. If a project only included title VII grants, there would be no State role. Therefore, if a TEA and LEA choose to include a title VII program in the STEP project, the project must also include a State-administered ESEA formula grant program. However, for that State-administered program, the TEA can still choose LEA-type or SEA-type functions.

Changes: We have added a note following the definition of “ESEA formula grant program” stating that if applicants choose to include a title VII program in their STEP project, they must also include at least one State-administered program, but that applicants can still choose whether to perform SEA- or LEA-type functions for those State-administered programs.

Comment: Two commenters supported our inclusion of title VII in the types of formula grant programs that can be part of STEP projects. One commenter stated that both TEAs and LEAs are eligible for title VII formula grants, and the STEP grant would allow these two entities to make a local decision regarding the title VII grant administration. Another commenter suggested that the title VII grant program should be amended to include TEA administrative functions to ensure that tribal students are served properly.

Discussion: We agree that including title VII grants in STEP projects provides greater flexibility for TEAs. However, tribes are not eligible for title VII formula grants in the same way as LEAs; under the statute, tribes are eligible to apply for the formula grants only if they apply in lieu of the LEA in accordance with the requirements in section 7112 of the ESEA. Tribes and their TEAs cannot compete with LEAs for a title VII grant. The STEP program does not change the title VII formula program or its statutory requirements in any way. We cannot amend the statute through this regulatory process. However, we agree that inclusion of the title VII formula grant in a STEP project would facilitate a local discussion regarding the appropriate use of the title VII funds to improve outcomes for American Indian and Alaska Native (AI/AN) youth, regardless of which entity—tribe, TEA, or LEA—is the title VII grantee.

Changes: None.

Comment: One commenter supported the proposed preliminary agreement requirements related to data sharing. However, in this context, two commenters argued that it is difficult for TEAs to access education records, and that this hampers tribes' ability to provide support services and to make data-based decisions. These commenters suggested that the Department seek amendments to the Family Educational Rights and Privacy Act (FERPA) (Section 444 of the General Education Provisions Act (20 U.S.C. 1232g)) that would include TEAs among the educational agencies, authorities, and officials to whom protected student records and information may be released without the prior written consent of parents or students. In addition, one commenter suggested that we designate TEAs as authorized representatives of the Secretary of Education, and make technical assistance available to assist TEAs in the protection of education records. Another commenter requested a streamlined process for STEP grantees to access student records.

Discussion: Although we appreciate the commenters' concerns, the provisions of FERPA are both statutory and regulatory and beyond the scope of this regulatory action. Further, we cannot designate an entity as an authorized representative of the Secretary of Education unless that entity performs an audit or evaluation function for which the Secretary is responsible (20 U.S.C. 1232g(b)(1)(C) and (b)(3) and 34 CFR 99.35(a)(1)). The Department cannot use this FERPA exception to consent in order to permit entities to obtain access to education records to conduct evaluations that SEAs or LEAs are responsible for conducting.

We understand from our work with the current STEP grantees that access to student data is important to tribes and their TEAs, as well as to the success of STEP projects. We also understand that many entities misunderstand FERPA requirements. We have provided technical assistance to the current STEP grantees, through webinars and individual assistance from our Family Policy Compliance Office, and will continue to do so for future STEP grantees. We believe that involvement by all parties—TEA, SEA, and LEA—in such technical assistance opportunities will lead to mutually satisfactory outcomes. We also agree that stronger provisions regarding data sharing in the STEP agreements between the TEA, SEA, and LEA would be helpful. Accordingly, we are revising the preliminary agreement requirements in paragraph (f)(1) to require the parties to acknowledge the importance of student data to the project's success. In addition, in paragraph (f)(1), we are specifying that, if the project design requires data sharing, the progress of the parties towards mutual data access may be a factor in determining whether a project is making substantial progress towards meeting its objectives, for purposes of continuation awards.

In response to the commenters' concerns, we note that one option under which TEAs may access student education records without written consent is for the SEA or LEA to designate the TEA as an authorized representative for purposes of evaluating one or more ESEA formula grant programs that the SEA or LEA is responsible for evaluating. Because this designation requires the parties to enter a separate written agreement that complies with the FERPA regulations (see 34 CFR 99.35(a)(3)), it can take time to finalize. Therefore, such a designation would not have to be completed as part of the preliminary STEP agreement required as part of the grant application, but must be included in or attached to the final agreement. In paragraph (f)(2) we are requiring that parties make their best efforts to participate in training regarding FERPA and to include in or attach to the final agreement the terms relating to data sharing that are consistent with FERPA.

In paragraph (f) of the Preliminary Agreement requirement, we purposefully use the term data-sharing to emphasize that data sharing should be mutual, rather than one-directional, in order to account for all students. We note that many tribes operate BIE-funded schools, and AI/AN students transfer frequently between such schools and public schools. Accordingly, in any final agreement on terms relating to data sharing, a BIE school could agree to provide timely information to the TEA and the LEA concerning students who transfer to the public school or who drop out of the BIE school.

Changes: We have revised the language in paragraph (f) of the Preliminary Agreement requirement to require the parties to: acknowledge that access to student data is important for TEA capacity building; and commit to making best efforts to participate in trainings and technical assistance and reach agreement on data sharing that is consistent with FERPA if it is required by the project design. This replaces the language that was in proposed paragraph (h) of the Preliminary Agreement requirement.

Comment: One commenter raised concern about requiring TEAs to enter a partnership with local public schools and SEAs, because tribes have historically struggled with these agencies.

Discussion: We acknowledge the historical struggle between tribes, SEAs, and LEAs. One of the major purposes of the STEP program is to increase collaboration between TEAs, SEAs, and LEAs, and, thus, the Department believes it is important to include these entities in the partnership. The preliminary and final agreements must therefore be signed by these parties.

Changes: None.

Comment: None.

Discussion: Because STEP grants are subject to the Indian hiring preference in section 7(b) of the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638) to the extent that they benefit primarily members of federally recognized tribes, we are adding a reference to this provision under the Requirements section.

Changes: We have added the statutory hiring preference requirements, entitled ISDEAA Hiring Preference, under the Requirements section of this notice.

Comment: Several commenters suggested changes to the definition of “established TEA.” Those comments and corresponding changes are discussed in the Priorities part of the Analysis of Comments and Changes section of this document.

To meet this priority, a TEA must be an established TEA.

To meet this priority, a TEA with limited prior experience is, for any STEP competition, a TEA that does not meet the definition of an “established TEA.”

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

The Assistant Secretary for Elementary and Secondary Education establishes the following requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.

(a) A TEA that is from an eligible Indian tribe and is authorized by its tribe to administer this program; or

(b) A consortium of such TEAs.

(a) Schools. (1) Projects must include at least two eligible schools, at least one of which must be a public school.

(2) All schools included in the project must receive services or funds for the specific ESEA formula grant program(s) selected by the applicant.

(3) For projects that include one or more tribally controlled schools—

(i) The applicant TEA must include in its application evidence that it submitted a copy of the application to BIE; and

(ii) If the proposed project includes SEA-type functions with regard to the tribally controlled school, the TEA may be required by BIE to enter into an agreement with BIE, to be submitted to the Department at the same time as the final agreement.

(b) ESEA Formula Grant Programs. Projects must include at least one ESEA formula grant program that is State-administered.

Preliminary Agreement: An applicant must submit with its application for funding a signed preliminary agreement among the TEA, SEA, and LEA. Letters of support from an SEA or LEA will not meet this requirement and will not be accepted as a substitute.

The preliminary agreement must include:

(a) An explanation of how the parties will work collaboratively to:

(1) Administer selected ESEA formula grant programs in eligible schools; and

(2) Cooperate on administering other educational programs or services as agreed to by the parties.

(b) The primary ESEA formula grant program(s) for which the TEA will assume SEA-type or LEA-type administrative functions;

(c) A description of the primary SEA-type or LEA-type administrative functions that the TEA will assume;

(d) The training and other activities that the SEA or LEA, as appropriate, will provide for the TEA to gain the knowledge and skills needed to administer ESEA formula programs;

(e) The assistance that the TEA will provide to the SEA or LEA, as appropriate, to facilitate the project, such as cultural competence training;

(f) A statement concerning student data that—

(1) Acknowledges that access by the TEA to data on students who are tribal members is important to building the capacity of the TEA, and, depending on the project design, may be one of the factors the Secretary considers in determining whether a grantee has made substantial progress in achieving the goals and objectives of the project for the purpose of making continuation awards; and

(2) Commits the parties to making their best efforts to:

(i) Participate in training and technical assistance, provided by or through the Department, on the requirements of section 444 of the General Education Provisions Act (commonly referred to as the Family Educational Rights and Privacy Act, or FERPA) and on the possible ways in which the TEA could be provided access to tribal student data consistent with FERPA; and

(ii) Reach agreement on and include as part of the Final Agreement to be submitted during year 1 of the grant, a provision on data sharing that is consistent with FERPA, if data sharing is required by the project design;

(g) The names of at least one LEA and two or more eligible schools, at least one of which must be a public school, that are expected to participate in the project;

(h) An explanation of how the STEP funds will be used to build on existing activities or add new activities rather than replace tribal or other funds; and

(i) Signatures of the authorized representatives of the TEA, SEA, participating LEA(s), and any BIE-funded tribally controlled school that is included in the project.

Final Agreement: Each grantee must submit to the Department a final agreement by the date, in year 1 of the grant, to be established by the Department in the notice inviting applications. The final agreement must contain:

(a) All of the elements from the preliminary agreement, in final form;

(b) A timetable for accomplishing each of the objectives and activities that the parties will undertake;

(c) Goals of the project and measureable objectives towards reaching the goals; and

(d) The actions that the parties will take to sustain the relationships and activities established in the agreement after the project ends.

(a) Awards that are primarily for the benefit of Indians are subject to the provisions of section 7(b) of the Indian Self-Determination and Education Assistance Act (P.L. 93-638). That section requires that, to the greatest extent feasible, a grantee—

(1) Give to Indians preferences and opportunities for training and employment in connection with the administration of the grant; and

(2) Give to Indian organizations and to Indian-owned economic enterprises, as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452(e)), preference in the award of contracts in connection with the administration of the grant.

(b) For purposes of this section, an Indian is a member of any federally recognized Indian tribe.

The Assistant Secretary for Elementary and Secondary Education establishes the following definitions for this program. We may apply one or more of these definitions in any year in which this program is in effect.

Cultural competency means the use of culturally responsive education that takes into account a student's own cultural experiences, creates connections between home and school experiences, and uses the cultural knowledge, prior experiences, and learning styles of diverse students to make learning more appropriate and effective.

Eligible Indian tribe means a federally recognized or a State-recognized tribe.

Eligible school means a school that is included in the applicant's preliminary and final agreements, and that is:

(a) A public school, including a public charter school, or

(b) A BIE-funded tribally controlled school.

Established TEA means a TEA that:

(a) Previously received a STEP grant, or

(b) Has an existing prior relationship with an SEA or LEA as evidenced by a prior written agreement between the TEA and SEA or LEA, and meets one or more of the following criteria, as specified by the Secretary in a notice inviting applications published in the Federal Register:

(i) Has an existing tribal education code;

(ii) Has administered at least one education program (for example, a tribally operated preschool or afterschool program) within the past five years; or

(iii) Has administered at least one Federal, State, local, or private grant within the past five years.

ESEA formula grant program means one of the following programs authorized under the Elementary and Secondary Education Act of 1965, as amended (ESEA), for which SEAs or LEAs receive formula funding:

(a) Improving Academic Achievement of the Disadvantaged (title I, part A);

(b) School Improvement Grants (section 1003(g));

(c) Migrant Education (title I, part C);

(d) Neglected and Delinquent State Grants (title I, part D);

(e) Improving Teacher Quality State Grants (title II, part A);

(f) English Learner Education State Grants (title III, part A);

(g) 21st Century Community Learning Centers (title IV, part B); and

(h) Indian Education Formula Grants (title VII, part A).

LEA-type function means the type of activity that LEAs typically conduct, such as direct provision of educational services to students, grant implementation, school district curriculum development, staff professional development pursuant to State guidelines, and data submissions.

SEA-type function means the type of activity that SEAs typically conduct, such as overall education policy development, supervision and monitoring of school districts, provision of technical assistance to districts, statewide curriculum development, collecting and analyzing performance data, and evaluating programs.

Tribal educational agency (TEA) means the agency, department, or instrumentality of an eligible Indian tribe that is primarily responsible for supporting tribal students' elementary and secondary education, which may include early learning.

The Assistant Secretary for Elementary and Secondary Education establishes the following selection criteria for evaluating an application under this program. In any year in which this program is in effect, we may apply one or more of these criteria or sub-criteria, any of the selection criteria in 34 CFR 75.210, or any combination of these. In the notice inviting applications or the application package or both, we will announce the maximum possible points assigned to each criterion.

(a) Need for project. The Assistant Secretary considers the extent to which the goals and objectives in the preliminary agreement, including the TEA capacity-building activities, address identified educational needs of the Indian students to be served.

(b) Quality of the project design. The Assistant Secretary considers one or more of the following factors:

(1) The extent to which the proposed project would recognize and support tribal sovereignty.

(2) The extent to which the preliminary agreement defines goals, objectives, and outcomes of the proposed project that are likely to be achieved by the end of the project period.

(3) The extent to which the proposed project would build relationships and better communication among the TEA, SEA, and LEA, as well as families and communities, to the benefit of Indian students in the selected schools, including by enhancing the cultural competency of SEA and LEA staff.

(4) The extent to which the proposed project would enhance the capacity of the TEA to administer ESEA formula grants during the grant period and beyond.

(c) Adequacy of resources. The Assistant Secretary considers the extent to which:

(1) The TEA has established, prior to developing the preliminary agreement, a relationship with either the SEA or an LEA that will enhance the likelihood of the project's success; and

(2) The use of STEP grant funds supports the capacity-building activities that are needed to administer ESEA formula grants.

(d) Quality of project personnel. The Assistant Secretary considers the extent to which the proposed project director has experience in education and in administering Federal grants.

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final priorities, requirements, definitions, and selection criteria only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

We believe that the final priorities, requirements, definitions, and selection criteria would not impose significant costs on eligible TEAs that receive assistance through the STEP program. We also believe that the benefits of implementing the final priorities, requirements, definitions, and selection criteria outweigh any associated costs.

We believe that the costs imposed on applicants would be limited to costs associated with developing applications, including developing partnerships with SEAs and LEAs, and that the benefits of creating a partnership that is likely to be sustained after the end of the project period would outweigh any costs incurred by applicants. The costs of carrying out activities proposed in STEP applications would be paid for with program funds. Thus, the costs of implementation would not be a burden for any eligible applicants, including small entities. We also note that program participation is voluntary.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79, except that federally recognized Indian tribes are not subject to those rules. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

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I. Summary of SIP Revision

On June 22, 2010 (75 FR 35520), EPA promulgated a 1-hour primary SO2 NAAQS at a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. The new NAAQS is codified at 40 CFR 50.17, while the prior NAAQS are at 40 CFR 50.4. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe.

On June 18, 2014, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), submitted a SIP revision that addresses the infrastructure elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2010 SO2 NAAQS. On August 22, 2014 (79 FR 49731), EPA published a notice of proposed rulemaking (NPR) for Virginia proposing approval of the submittal. In the NPR, EPA proposed approval of the following infrastructure elements: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (consultation, public notification, and prevention of significant deterioration), (K), (L), and (M).

Virginia did not submit section 110(a)(2)(I) which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) and will be addressed in a separate process. At this time, EPA is not taking action on section 110(a)(2)(D)(i)(II) or (J) for visibility protection for the 2010 SO2 NAAQS as explained in the NPR. Although Virginia's infrastructure SIP submittal for the 2010 SO2 NAAQS referred to Virginia's regional haze SIP for section 110(a)(2)(D)(i)(II) and (J) for visibility protection, EPA intends to take later, separate action on Virginia's submittal for these elements as explained in the NPR and the Technical Support Document (TSD) which accompanied the NPR. This rulemaking action also does not include action on section 110(a)(2)(D)(i)(I) of the CAA because Virginia's June 18, 2014 infrastructure SIP submittal did not include provisions for this element; therefore EPA will take later, separate action on section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for Virginia as explained in the NPR. Finally, EPA will also take later, separate action with respect to Section 110(a)(2)(E)(ii) regarding CAA section 128 requirements for State Boards for the 2010 SO2 NAAQS as explained in the NPR.

The rationale supporting EPA's proposed rulemaking action, including the scope of infrastructure SIPs in general, is explained in the published NPR and the TSD accompanying the NPR and will not be restated here. The NPR and TSD are available in the docket for this rulemaking at www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0522. The discussion below in responding to comments on the NPR provides additional rationale to the extent necessary and appropriate to provide such responses and support the final action.

EPA received comments from the Sierra Club on the August 22, 2014 proposed rulemaking action on Virginia's 2010 SO2 infrastructure SIP. A full set of these comments is provided in the docket for today's final rulemaking action.

Comment 1: Sierra Club contends in background comments that the plain language of section 110(a)(2)(A) of the CAA, legislative history of the CAA, case law, EPA regulations such as 40 CFR 51.112(a), and EPA interpretations in rulemakings require the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. Sierra Club then contends that the Virginia 2010 SO2 infrastructure SIP revision did not revise the existing SO2 emission limits in response to the 2010 SO2 NAAQS and fails to comport with asserted CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment.

The Commenter states that the main objective of the infrastructure SIP process “is to ensure that all areas of the country meet the NAAQS,” and that nonattainment areas are addressed through nonattainment SIPs. The Commenter asserts the NAAQS are the foundation for specific emission limitations for most large stationary sources, such as coal-fired power plants. The Commenter discusses the CAA's framework whereby states have primary responsibility to assure air quality within the state pursuant to CAA section 107(a) which the states carry out through SIPs such as infrastructure SIPs required by section 110(a)(2). The Commenter also states that on its face the CAA requires infrastructure SIPs “to be adequate to prevent exceedances of the NAAQS.” In support, the Commenter quotes the language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which the commenter claims include the maintenance plan requirement. Sierra Club notes the CAA definition of emission limit and reads these provisions together to require “enforceable emission limits on source emissions sufficient to ensure maintenance of the NAAQS.”

Response 1: EPA disagrees that section 110 is clear “on its face” and must be interpreted in the manner suggested by Sierra Club. As we have previously explained in response to Sierra Club's similar comments in taking action on Virginia's 2008 ozone NAAQS infrastructure SIP (see 79 FR 17043, 17047 (March 27, 2014)), section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure.

EPA interprets infrastructure SIPs as more general planning SIPs, consistent with the CAA as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with a new NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].”

In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of a state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 of the CAA did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. More detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.

Thus, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of that structure and the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO2 NAAQS, “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.” Infrastructure SIP Guidance at p. 2.1

The Commenter makes general allegations that Virginia does not have sufficient protective measures to prevent SO2 NAAQS exceedances. EPA addressed the adequacy of Virginia's infrastructure SIP for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in the TSD accompanying the August 22, 2014 NPR and explained why the SIP includes enforceable emission limitations and other control measures necessary for maintenance of the 2010 SO2 NAAQS throughout the Commonwealth.2 These include applicable portions of the following chapters of 9 VAC 5: 40 (Existing Stationary Sources),3 50 (New and Modified Stationary Sources), and 91 (Motor Vehicle Inspection and Maintenance in Northern Virginia). 4 Further, in 2012, EPA granted limited approval of Virginia's regional haze SIP which also includes emission measures related to SO2. 77 FR 35287 (June 13, 2012). As discussed in the TSD for this rulemaking, EPA finds the provisions for SO2 emission limitations and measures adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the NAAQS and finds Virginia demonstrated that it has the necessary tools to implement and enforce the NAAQS.

Comment 2: Sierra Club cites two excerpts from the legislative history of the 1970 CAA claiming they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Virginia. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. See also 79 FR at 17046 (responding to comments on Virginia's ozone infrastructure SIP). In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP. As provided in response to another comment in this rulemaking, the TSD for the proposed rule explains why the Virginia SIP includes enforceable emissions limitations for SO2 for the relevant area.

Comment 3: Sierra Club also discusses several cases applying the CAA which Sierra Club claims support their contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent exceedances of the NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which, if enforced, should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the State”); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C. Cir. 1982) (CAA requires SIPs to contain “measures necessary to ensure attainment and maintenance of NAAQS”). Finally, Sierra Club cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

Response 3: None of the cases Sierra Club cites support its contention that section 110(a)(2)(A) is clear that infrastructure SIPs must include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, none of the cases the Commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background sections of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved as meeting other provisions of the CAA or in the context of an enforcement action.

In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation”, not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). Sierra Club does not raise any concerns about whether the measures relied on by the Commonwealth in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here.5 In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a federal implementation plan (FIP) that EPA promulgated after a long history of the state failing to submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the state's duty to submit a new SIP to show how it would remedy that deficiency and attain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which focused instead on whether EPA's finding of SIP inadequacy, disapproval of the state's responsive attainment demonstration, and adoption of a remedial FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, Sierra Club also quotes the Court's statement that “SIPs must include certain measures Congress specified,” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

Two of the cases Sierra Club cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

Finally, in Conn. Fund for Env't, Inc. v. EPA, the D.C. Circuit was reviewing EPA action on a control measure SIP provision which adjusted the percent of sulfur permissible in fuel oil. 696 F.2d 169 (D.C. Cir. 1982). The D.C. Circuit focused on whether EPA needed to evaluate effects of the SIP revision on one pollutant or effects of changes on all possible pollutants; therefore, the D.C. Circuit did not address required measures for infrastructure SIPs and nothing in the opinion addressed whether infrastructure SIPs needed to contain measures to ensure attainment and maintenance of the NAAQS.

Comment 4: Sierra Club cites to 40 CFR 51.112(a), providing that “[e]ach plan must demonstrate that the measures, rules and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” Sierra Club asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. Sierra Club states that “[a]lthough these regulations were developed before the Clean Air Act separated infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” Sierra Club relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .” 51 FR 40656, 40656 (November 7, 1986).

Response 4: Sierra Club's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS exceedances” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the Commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). And, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 191-192. The Commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. 51 FR at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 51.14 (“Control strategy: CO, HC, OX and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

Comment 5: Sierra Club also references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The Commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO2 NAAQS. In that action, EPA cited section 110(a)(2)(A) for disapproving a revision to the state plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, Sierra Club cites a 2013 disapproval of a revision to the SO2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the State. See 78 FR 17157, 17158, (March 20, 2013) (proposed rule on Indiana SO2 SIP) and 78 FR 78720, 78721 (December 27, 2013) (final rule on Indiana SO2 SIP). In its proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the State had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO2 emissions.” EPA further stated in that proposed disapproval that the State had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.”

Response 5: EPA does not agree that the two prior actions referenced by Sierra Club establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the proposed and final Indiana rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an infrastructure SIP. The Indiana action provides even less support for the Commenter's position. 78 FR 78720. The review in that rule was of a completely different requirement than the section 110(a)(2)(A) SIP. Rather, in that case, the State had an approved SO2 attainment plan and was seeking to remove provisions from the SIP that it relied on as part of the modeled attainment demonstration. EPA proposed that the State had failed to demonstrate under section 110(l) of the CAA why the SIP revision would not result in increased SO2 emissions and thus interfere with attainment of the NAAQS. See 78 FR 17157. Nothing in that proposed or final rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS.

As discussed in detail in the TSD and NPR, EPA finds the Virginia SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the NAAQS and that the Commonwealth demonstrated that it has the necessary tools to implement and enforce a NAAQS. Therefore, EPA approves the Virginia SO2 infrastructure SIP.6

Comment 6: Citing section 110(a)(2)(A) of the CAA, Sierra Club contends that EPA may not approve the proposed infrastructure SIP because it does not include enforceable 1-hour SO2 emission limits for sources currently allowed to cause “NAAQS exceedances.” Sierra Club asserts the proposed infrastructure SIP fails to include enforceable 1-hour SO2 emissions limits or other required measures to ensure attainment and maintenance of the SO2 NAAQS in areas not designated nonattainment as Sierra Club claims is required by section 110(a)(2)(A). Sierra Club asserts an infrastructure SIP must ensure, through state-wide regulations or source specific requirements, proper mass limitations and short term averaging on specific large sources of pollutants such as power plants. Sierra Club asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source-oriented. Sierra Club states coal-fired electric generating units (EGUs) are large contributors to SO2 emissions but contends Virginia did not demonstrate that emissions allowed by the proposed infrastructure SIP from such large sources of SO2 will ensure compliance with the 2010 1-hour SO2 NAAQS. The Commenter claims the proposed infrastructure SIP would allow major sources to continue operating with present emission limits.7 Sierra Club then refers to air dispersion modeling it conducted for two coal-fired EGUs in Virginia, Chesapeake Energy Center and Yorktown Power Station. Sierra Club asserts the results of the air dispersion modeling it conducted employing EPA's AERMOD program for modeling used the plants' allowable and maximum emissions and showed the plants could cause exceedances of the 2010 SO2 NAAQS with either allowable or maximum emissions.8 Based on the modeling, Sierra Club asserts the Virginia SO2 infrastructure SIP submittal authorizes the two EGUs to cause exceedances of the NAAQS with allowable and maximum emission rates and therefore the infrastructure SIP fails to include adequate enforceable emission limitations or other required measures for sources of SO2 sufficient to ensure attainment and maintenance of the 2010 SO2 NAAQS. Sierra Club cites to information from the owner of Chesapeake Energy Center and Yorktown Power Station regarding the retirement of certain units at those plants in 2015 and 2016 and asserts such planned retirements should be incorporated into the Virginia infrastructure SIP as necessary to ensure attainment and maintenance of the NAAQS. Sierra Club therefore asserts EPA must disapprove Virginia's proposed SIP revision. In addition, Sierra Club asserts “EPA must impose additional emission limits on the plants that ensure attainment and maintenance of the NAAQS at all times.”

Response 6: EPA believes that section 110(a)(2)(A) of the CAA is reasonably interpreted to require states to submit infrastructure SIPs that reflect the first step in their planning for attainment and maintenance of a new or revised NAAQS. These SIP revisions should contain a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS and show that the SIP has enforceable control measures. In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state. As mentioned above, EPA has interpreted this to mean, with regard to the requirement for emission limitations, that states may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit.

As stated in response to a previous comment, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the Commonwealth demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. As discussed above, EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO2 NAAQS, “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.” Infrastructure SIP Guidance at p. 2.

On April 12, 2012, EPA explained its expectations regarding the 2010 SO2 NAAQS via letters to each of the states. EPA communicated in the April 2012 letters that all states were expected to submit SIPs meeting the “infrastructure” SIP requirements under section 110(a)(2) of the CAA by June 2013. At the time, EPA was undertaking a stakeholder outreach process to continue to develop possible approaches for determining attainment status under the SO2 NAAQS and implementing this NAAQS. EPA was abundantly clear in the April 2012 letters that EPA did not expect states to submit substantive attainment demonstrations or modeling demonstrations showing attainment for areas not designated nonattainment in infrastructure SIPs due in June 2013. Although EPA had previously suggested in its 2010 SO2 NAAQS preamble and in prior draft implementation guidance in 2011 that states should, in the unique SO2 context, use the section 110(a) SIP process as the vehicle for demonstrating attainment of the NAAQS, this approach was never adopted as a binding requirement and was subsequently discarded in the April 2012 letters to states. The April 2012 letters recommended states focus infrastructure SIPs due in June 2013, such as Virginia's SO2 infrastructure SIP, on traditional “infrastructure elements” in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for areas not designated as nonattainment.9

Therefore, EPA asserts the elements of section 110(a)(2) which address SIP revisions for SO2 nonattainment areas including measures and modeling demonstrating attainment are due by the dates statutorily prescribed under subpart 5 under part D. Those submissions are due no later than 18 months after an area is designed nonattainment for SO2, under CAA section 191(a). Thus, the CAA directs states to submit these 110(a)(2) elements for nonattainment areas on a separate schedule from the “structural requirements” of 110(a)(2) which are due within three years of adoption or revision of a NAAQS. The infrastructure SIP submission requirement does not move up the date for any required submission of a part D plan for areas designated nonattainment for the new NAAQS. Thus, elements relating to demonstrating attainment for areas not attaining the NAAQS are not necessary for infrastructure SIP submissions, and the CAA does not provide explicit requirements for demonstrating attainment for areas that have not yet been designated regarding attainment with a particular NAAQS.

As stated previously, EPA believes that the proper inquiry at this juncture is whether Virginia has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submittal. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure elements. A state, like Virginia, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission. For example, Virginia submitted a list of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in detail in the TSD. These provisions have the ability to reduce SO2 overall. Although the Virginia SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 SO2 NAAQS.

Additionally, as discussed in EPA's TSD supporting the NPR, Virginia has the ability to revise its SIP when necessary (e.g. in the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS or otherwise meet all applicable CAA requirements) as required under element H of section 110(a)(2). See Code of Virginia 10.1-1308 (authorizing Virginia's Air Pollution Control Board to promulgate regulations to abate, control, and prohibit air pollution throughout the Commonwealth).

EPA believes the requirements for emission reduction measures for an area designated nonattainment for the 2010 primary SO2 NAAQS are in sections 172 and 191-192 of the CAA, and therefore, the appropriate avenue for implementing requirements for necessary emission limitations for demonstrating attainment with the 2010 SO2 NAAQS is through the attainment planning process contemplated by those sections of the CAA. On August 5, 2013, EPA designated as nonattainment most areas in locations where existing monitoring data from 2009-2011 indicated violations of the 1-hour SO2 standard. 78 FR 47191. At that time, no areas in Virginia had monitoring data from 2009-2011 indicating violations of the 1-hour SO2 standard, and thus no areas were designated nonattainment in Virginia. In separate future actions, EPA intends to address the designations for all other areas for which EPA has yet to issue designations. See, e.g., 79 FR 27446 (May 13, 2014) (proposing process and timetables by which state air agencies would characterize air quality around SO2 sources through ambient monitoring and/or air quality modeling techniques and submit such data to the EPA). Although no areas within Virginia have yet been designated nonattainment, any future nonattainment designations under the 2010 SO2 NAAQS within the Commonwealth will set appropriate due dates for any applicable attainment SIPs required pursuant to CAA sections 172, 191, and 192. EPA believes it is not appropriate to bypass the attainment planning process by imposing separate attainment planning process requirements outside the attainment planning process and into the infrastructure SIP process. Such actions would be disruptive and premature absent exceptional circumstances and would interfere with a state's planning process. See In the Matter of EME Homer City Generation LP and First Energy Generation Corp., Order on Petitions Numbers III-2012-06, III-2012-07, and III2013-01 (July 30, 2014) (hereafter, Homer City/Mansfield Order) at 10-19 (finding Pennsylvania SIP did not require imposition of SO2 emission limits on sources independent of the part D attainment planning process contemplated by the CAA). EPA believes that the history of the CAA, and intent of Congress for the CAA as described above, demonstrate clearly that it is within the section 172 and general part D attainment planning process that Virginia must include additional SO2 emission limits on sources in order to demonstrate future attainment, where needed, for any areas in Virginia or other states that may be designated nonattainment in the future, in order to reach attainment with the 2010 1-hour SO2 NAAQS.

The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits adequate to provide for timely attainment and maintenance of the standard is also not supported. As explained previously in response to the background comments, EPA notes this regulatory provision clearly on its face applies to plans specifically designed to attain the NAAQS and not to infrastructure SIPs which show the states have in place structural requirements necessary to implement the NAAQS. Therefore, EPA finds 40 CFR 51.112 inapplicable to its analysis of the Virginia SO2 infrastructure SIP.

As noted in EPA's preamble for the 2010 SO2 NAAQS, determining compliance with the SO2 NAAQS will likely be a source-driven analysis, and EPA has explored options to ensure that the SO2 designations and implementation processes realistically account for anticipated SO2 reductions at sources that we expect will be achieved by current and pending national and regional rules. See 75 FR 35520. As mentioned previously above, EPA has proposed a process to address additional areas in states which may be found to not be attaining the 2010 SO2 NAAQS. 79 FR 27446 (proposing process for further monitoring or modeling of areas with larger SO2 sources). In addition, in response to lawsuits in district courts seeking to compel EPA's remaining designations of undesignated areas under the NAAQS, EPA has proposed to enter a settlement under which this process would require an earlier round of designations focusing on areas with larger sources of SO2 emissions, as well as enforceable deadlines for the later rounds of designations.10 However, because the purpose of an infrastructure SIP submission is for more general planning purposes, EPA does not believe Virginia is obligated to account for controlled SO2 levels at individual sources during this infrastructure SIP planning process. See Homer City/Mansfield Order at 10-19.

Regarding the air dispersion modeling conducted by Sierra Club pursuant to AERMOD for the coal-fired EGUs including Chesapeake Energy Center and Yorktown Power Station, EPA is not at this stage prepared to opine on whether the modeling demonstrates violations of the NAAQS, and does not find the modeling information relevant for review of an infrastructure SIP. EPA has issued non-binding guidance for states to use in conducting, if they choose, additional analysis to support designations for the 2010 SO2 NAAQS. SO 2 NAAQS Designations Modeling Technical Assistance Document, EPA Office of Air and Radiation and Office of Air Quality Planning and Standards, December 2013, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. Sierra Club's AERMOD modeling for the Virginia EGUs was conducted prior to the issuance of this guidance and may not address all recommended elements EPA may consider important to modeling for the 2010 SO2 NAAQS for designations purposes. If any areas in Virginia are designated nonattainment in the future, any potential future modeling in attainment demonstrations by the Commonwealth would need to account for any new emissions limitations Virginia develops to support such demonstration, which at this point are unknown. Therefore, it is premature at this point to evaluate whether current modeled allowable SO2 levels would be sufficient to show future attainment of the NAAQS. In addition, while EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations, EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs needed for the 2010 SO2 NAAQS. See April 12, 2012 letters to states and 2012 Draft White Paper. In contrast, EPA recently discussed modeling for designations in our May 14, 2014 proposal at 79 FR 27446 and for nonattainment planning in the April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions. 11

Finally, EPA also disagrees with the Commenter that the Virginia infrastructure SIP should incorporate the planned retirement dates of certain emission units at Chesapeake Energy Center and Yorktown Power Station to ensure attainment and maintenance of the NAAQS. Because EPA does not believe Virginia's infrastructure SIP requires at this time 1-hour SO2 emission limits on these sources or other large stationary sources to prevent exceedances of the SO2 NAAQS for all the reasons discussed above in this response, EPA likewise does not believe incorporating planned retirement dates for SO2 emitters is necessary for our approval of an infrastructure SIP which we have explained meets the structural requirements of section 110(a)(2). If any areas in Virginia are subsequently designated nonattainment with the 2010 SO2 NAAQS, Virginia can address needed emission reductions, including reductions through source retirements, in any subsequent attainment planning process in accordance with part D of title I of the CAA.

In conclusion, EPA disagrees with Sierra Club's statements that EPA must disapprove Virginia's infrastructure SIP submission because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the NAAQS at this time.

Comment 7: Sierra Club asserts that modeling is the appropriate tool for evaluating adequacy of infrastructure SIPs and ensuring attainment and maintenance of the 2010 SO2 NAAQS. The Commenter refers to EPA's historic use of air dispersion modeling for attainment designations as well as “SIP revisions.” The Commenter cites to prior EPA statements that the Agency has used modeling for designations and attainment demonstrations, including statements in the 2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 SO2 Guideline Document, as modeling could better address the source-specific impacts of SO2 emissions and historic challenges from monitoring SO2 emissions.12

Sierra Club also cited to several cases upholding EPA's use of modeling in NAAQS implementation actions, including the Montana Sulphur case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009). The Commenter discusses statements made by EPA staff regarding the use of modeling and monitoring in setting emission limitations or determining ambient concentrations as a result of a source's emissions, discussing performance of AERMOD as a model, if AERMOD is capable of predicting whether the NAAQS is attained, and whether individual sources contribute to SO2 NAAQS violations. Sierra Club cites to EPA's history of employing air dispersion modeling for increment compliance verifications in the permitting process for the Prevention of Significant Deterioration (PSD) program required in part C of title I of the CAA. The Commenter claims the Chesapeake Energy Center and Yorktown Power Station are examples of sources located in elevated terrain where the AERMOD model functions appropriately in evaluating ambient impacts.

Sierra Club asserts EPA's use of air dispersion modeling was upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an EGU challenged EPA's use of CAA section 126 to impose SO2 emission limits on a source due to cross-state impacts. The Commenter claims the Third Circuit in GenOn REMA upheld EPA's actions after examining the record which included EPA's air dispersion modeling of the one source as well as other data.

The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009) for the general proposition that it would be arbitrary and capricious for an agency to ignore an aspect of an issue placed before it and that an agency must consider information presented during notice-and-comment rulemaking.

Finally, Sierra Club claims that Virginia's proposed SO2 infrastructure SIP lacks emission limitations informed by air dispersion modeling and therefore fails to ensure Virginia will achieve and maintain the 2010 SO2 NAAQS. Sierra Club claims EPA must require adequate, 1-hour SO2 emission limits in the infrastructure SIP that show no exceedances of NAAQS when modeled.

Response 7: EPA agrees with Sierra Club that air dispersion modeling, such as AERMOD, can be an important tool in the CAA section 107 designations process for SO2 and in the sections 172 and 191-192 attainment SIP process, including supporting required attainment demonstrations. EPA agrees that prior EPA statements, EPA guidance, and case law support the use of air dispersion modeling in the SO2 designations process and attainment demonstration process, as well as in analyses of whether existing approved SIPs remain adequate to show attainment and maintenance of the SO2 NAAQS. However, EPA disagrees with the Commenter that EPA must disapprove the Virginia SO2 infrastructure SIP for its alleged failure to include source-specific SO2 emission limits that show no exceedances of the NAAQS when modeled.

As discussed above and in the Infrastructure SIP Guidance, EPA believes the conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS and that the infrastructure SIP submission process provides an opportunity to review the basic structural requirements of the air agency's air quality management program in light of the new or revised NAAQS. See Infrastructure SIP Guidance at p. 2. EPA believes the attainment planning process detailed in part D of the CAA, including sections 172 and 191-192 attainment SIPs, is the appropriate place for the state to evaluate measures needed to bring nonattainment areas into attainment with a NAAQS and to impose additional emission limitations such as SO2 emission limits on specific sources.

EPA had initially recommended that states submit substantive attainment demonstration SIPs based on air quality modeling in the final 2010 SO2 NAAQS preamble (75 FR 35520) and in subsequent draft guidance issued in September 2011 for the section 110(a) SIPs due in June 2013 in order to show how areas expected to be designated as unclassifiable would attain and maintain the NAAQS. These initial statements in the preamble and 2011 draft guidance were based on EPA's expectation at the time, that by June 2012, most areas would initially be designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support designations recommendations in 2011. However, after conducting extensive stakeholder outreach and receiving comments from the states regarding these initial statements and the timeline for implementing the NAAQS, EPA subsequently stated in the April 12, 2012 letters and in the 2012 Draft White Paper that EPA was clarifying its implementation position and was no longer recommending such attainment demonstrations supported by air dispersion modeling for unclassifiable areas (which had not yet been designated) for the June 2013 infrastructure SIPs. EPA then reaffirmed this position in the February 6, 2013 memorandum, “Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard.” 13 As previously mentioned, EPA had stated in the preamble to the NAAQS and in the prior 2011 draft guidance that EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 110, 172 and 191-192 of the CAA. After receiving such further comment, EPA has now issued guidance for the nonattainment area SIPs due pursuant to sections 172 and 191-192 and proposed a process for further characterization of areas with larger SO2 sources, which could include use of air dispersion modeling. See April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions and 79 FR 27446 (proposing process and timetables for gathering additional information on impacts from larger SO2 sources informed through ambient monitoring and/or air quality modeling). While the EPA guidance for attainment SIPs and the proposed process for further characterizing SO2 emissions from larger sources both discuss the use air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance did not suggest that states use air dispersion modeling to inform emission limitations for section 110(a)(2)(A) to ensure no exceedances of the NAAQS when sources are modeled. Therefore, as discussed previously, EPA believes the Virginia SO2 infrastructure SIP submittal contains the structural requirements to address elements in section 110(a)(2) as discussed in detail in the TSD accompanying the proposed approval. EPA believes infrastructure SIPs are general planning SIPs to ensure that a state has adequate resources and authority to implement a NAAQS. Infrastructure SIP submissions are not intended to act or fulfill the obligations of a detailed attainment and/or maintenance plan for each individual area of the state that is not attaining the NAAQS. While infrastructure SIPs must address modeling authorities in general for section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure SIPs to provide the state's authority for air quality modeling and for submission of modeling data to EPA, not specific air dispersion modeling for large stationary sources of pollutants. In the TSD for this rulemaking action, EPA provided a detailed explanation of Virginia's ability and authority to conduct air quality modeling when required and its authority to submit modeling data to the EPA.

EPA finds Sierra Club's discussion of case law, guidance, and EPA staff statements regarding advantages of AERMOD as an air dispersion model to be irrelevant to the analysis of Virginia's infrastructure SIP as this is not an attainment SIP required to demonstrate attainment of the NAAQS pursuant to sections 172 or 192. In addition, Sierra Club's comments relating to EPA's use of AERMOD or modeling in general in designations pursuant to section 107, including its citation to Catawba County, are likewise irrelevant as EPA's present approval of Virginia's infrastructure SIP is unrelated to the section 107 designations process. Nor is EPA's action on this infrastructure SIP related to any new source review (NSR) or PSD permit program issue. As outlined in the August 23, 2010 clarification memo, “Applicability of Appendix W Modeling Guidance for the 1-hour SO2 National Ambient Air Quality Standard” (U.S. EPA, 2010a), AERMOD is the preferred model for single source modeling to address the 1-hour SO2 NAAQS as part of the NSR/PSD permit programs. Therefore, as attainment SIPs, designations, and NSR/PSD actions are outside the scope of a required infrastructure SIP for the 2010 SO2 NAAQS for section 110(a), EPA provides no further response to the Commenter's discussion of air dispersion modeling for these applications. If Sierra Club resubmits its air dispersion modeling for the Virginia EGUs, or updated modeling information in the appropriate context, EPA will address the resubmitted modeling or updated modeling in the appropriate future context when an analysis of whether Virginia's emissions limits are adequate to show attainment and maintenance of the NAAQS is warranted.

The Commenter correctly noted that the Third Circuit upheld EPA's Section 126 Order imposing SO2 emissions limitations on an EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513. Pursuant to section 126, any state or political subdivision may petition EPA for a finding that any major source or group of stationary sources emits, or would emit, any air pollutant in violation of the prohibition of section 110(a)(2)(D)(i)(I) which relates to significant contributions to nonattainment or maintenance in another state. The Third Circuit upheld EPA's authority under section 126 and found EPA's actions neither arbitrary nor capricious after reviewing EPA's supporting docket which included air dispersion modeling as well as ambient air monitoring data showing violations of the NAAQS. The Commenter appears to have cited to this matter to demonstrate EPA's use of modeling for certain aspects of the CAA. EPA agrees with the Commenter regarding the appropriate role air dispersion modeling has for SO2 NAAQS designations, attainment SIPs, and demonstrating significant contributions to interstate transport. However, EPA's approval of Virginia's infrastructure SIP is based on our determination that Virginia has the required structural requirements pursuant to section 110(a)(2) in accordance with our explanation of the intent for infrastructure SIPs as discussed in the 2013 Infrastructure SIP Guidance. Therefore, while air dispersion modeling may be appropriate for consideration in certain circumstances, EPA does not find air dispersion modeling demonstrating no exceedances of the NAAQS to be a required element before approval of infrastructure SIPs for section 110(a) or specifically for 110(a)(2)(A). Thus, EPA disagrees with the Commenter that EPA must require additional emission limitations in the Virginia SO2 infrastructure SIP informed by air dispersion modeling and demonstrating attainment and maintenance of the 2010 NAAQS.

In its comments, Sierra Club relies on Motor Vehicle Mfrs. Ass'n and NRDC v. EPA to support its comments that EPA must consider the Sierra Club's modeling data on the Chesapeake Energy Center and Yorktown Power Station based on administrative law principles regarding consideration of comments provided during a rulemaking process. EPA asserts that it has considered the modeling submitted by the Commenter as well as all the submitted comments of Sierra Club. As discussed in detail in the Responses above, however, EPA does not believe the infrastructure SIPs required by section 110(a) are the appropriate place to require emission limits demonstrating future attainment with a NAAQS. Part D of title I of the CAA contains numerous requirements for the NAAQS attainment planning process, including requirements for attainment demonstrations in section 172 supported by appropriate modeling. As also discussed previously, section 107 supports EPA's use of modeling in the designations process. In Catawba, the D.C. Circuit upheld EPA's consideration of data or factors for designations other than ambient monitoring. EPA does not believe infrastructure SIPs must contain emission limitations informed by air dispersion modeling in order to meet the requirements of section 110(a)(2)(A). Thus, EPA has evaluated the persuasiveness of the Commenter's submitted modeling in finding that it is not relevant to the approvability of Virginia's proposed infrastructure SIP for the 2010 SO2 NAAQS.

While EPA does not believe that infrastructure SIP submissions are required to contain emission limits, as suggested by the Commenter, EPA does recognize that in the past, states have used infrastructure SIP submittals as a `vehicle' for incorporating regulatory revisions or source-specific emission limits into the state's plan. See 78 FR 73442 (December 6, 2013) (approving regulations Maryland submitted for incorporation into the SIP along with the 2008 Ozone infrastructure SIP to address ethics requirements for State Boards in sections 128 and 110(a)(2)(E)(ii)). While these SIP revisions are intended to help the state meet the requirements of section 110(a)(2), these “ride-along” SIP revisions are not intended to signify that all infrastructure SIP submittals should have similar regulatory revisions or source-specific emission limits. Rather, the regulatory provisions and source-specific emission limits the state relies on when showing compliance with section 110(a)(2) have likely already been incorporated into the state's SIP prior to each new infrastructure SIP submission; in some cases this was done for entirely separate CAA requirements, such as attainment plans required under section 172, or for previous NAAQS.

Comment 8: Sierra Club asserts that EPA may not approve the Virginia proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires emission limits to apply on a continuous basis. The Commenter claims EPA has stated that 1-hour averaging times are necessary for the 2010 SO2 NAAQS citing to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO2 emission limits in a PSD permit, an EPA Environmental Hearing Board (EHB) decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates.14

Sierra Club also contends that infrastructure SIPs approved by EPA must include monitoring of SO2 emission limits on a continuous basis using a continuous emission monitor system or systems (CEMS) and cites to section 110(a)(2)(F) which requires a SIP to establish a system to monitor emissions from stationary sources and to require submission of periodic emission reports. Sierra Club contends infrastructure SIPs must require such SO2 CEMS to monitor SO2 sources regardless of whether sources have control technology installed to ensure limits are protective of the NAAQS. Sierra Club contends any monitoring performed for the New Source Performance Standards (NSPS) in 40 CFR part 60 is inadequate for the NAAQS because NSPS monitoring does not call for monitoring during every hour of source operation which Sierra Club asserts is needed to protect the 1-hour SO2 NAAQS. Thus, Sierra Club contends EPA must require enforceable emission limits, applicable at all times, with 1-hour averaging periods, monitored continuously by large sources of SO2 emissions with CEMS, and therefore must disapprove Virginia's infrastructure SIP which Sierra Club claims fails to require emission limits with adequate averaging times.

Response 8: EPA disagrees that EPA must disapprove the proposed Virginia infrastructure SIP because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, along with requiring CEMS, as these issues are not appropriate for resolution at this stage in advance of the state's submission of an attainment demonstration for areas which may be designated nonattainment pursuant to section 107 of the CAA.15 As explained in detail in previous responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to attain and maintain the NAAQS and thus, additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.16 Likewise, EPA need not address, for the purpose of approving Virginia's infrastructure SIP, whether CEMS or some other appropriate monitoring of SO2 emissions is necessary to demonstrate compliance with emission limits in order to show attainment of the 2010 SO2 NAAQS as EPA believes such SO2 emission limits and an attainment demonstration are not a prerequisite to EPA's approval of Virginia's infrastructure SIP.17 Therefore, because EPA finds Virginia's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issues of appropriate averaging periods and monitoring requirements for such future limitations not relevant at this time. Sierra Club has cited to prior EPA discussion on emission limitations required in PSD permits (from an EAB decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA, which is neither relevant nor applicable to section 110 infrastructure SIPs. In addition, as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to a control strategy SIP required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements.

EPA has explained in the TSD supporting this rulemaking action how the Virginia SIP meets requirements in section 110(a)(2)(F) related to monitoring. 9 VAC 5-40-100 requires sources in Virginia to install, maintain, and replace equipment such as CEMS to continuously monitor SO2 emissions where necessary and required. Further, 9 VAC 5-40 requires sources in Virginia to report information, such as periodic reports on the nature and amounts of emissions and emissions-related data, from owners or operators of stationary sources of SO2 emissions through permits and compliance orders. Pursuant to 40 CFR part 51, subpart A, “Air Emissions Reporting Requirements,” Virginia provides source-specific emissions data to EPA. Thus, EPA finds Virginia has the authority and responsibility to monitor air quality for the relevant NAAQS pollutants at appropriate locations and to submit data to EPA in a timely manner in accordance with 110(a)(2)(F) and the Infrastructure SIP Guidance.18 See Infrastructure SIP Guidance at p. 45-46.

Comment 9: Sierra Club states that enforceable emission limits in SIPs or permits are necessary to avoid nonattainment designations in areas where modeling or monitoring shows SO2 levels exceed the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA document, Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard, which Sierra Club contends discusses how states could avoid future nonattainment designations. The Commenter asserts EPA should add enforceable emission limits to the Virginia infrastructure SIP to prevent future nonattainment designations and to protect public health. The Commenter claims the modeling it conducted for Chesapeake Energy Center and Yorktown Power Station indicates fourteen counties/independent cities in Virginia are at risk for being designated nonattainment with the 2010 SO2 NAAQS without such enforceable SO2 limits. The Commenter states EPA must ensure large sources cannot cause exceedances of the 2010 SO2 NAAQS to comply with section 110(a)(2)(A) and to avoid future nonattainment designations. The Commenter asserts nonattainment designations create rigorous CAA requirements which could be avoided if states adopt and EPA approves such SO2 emission limitations. In addition, the Commenter asserts adding SO2 emission limitations on certain sources now would bring regulatory certainty for coal-fired EGUs and ultimately save such entities money as the sources could plan now for compliance with emission limits as well as with other CAA requirements such as the Mercury Air Toxic Standards, transport rules, and regional haze requirements. In summary, the Commenter asserts EPA must disapprove the Virginia infrastructure SIP and establish enforceable emission limits to ensure large sources of SO2 do not cause exceedances of the 2010 SO2 NAAQS, which would avoid nonattainment designations and bring “regulatory certainty” to sources in Virginia.

Response 9: EPA appreciates the Commenter's concern with avoiding nonattainment designations in Virginia for the 2010 SO2 NAAQS and with providing coal-fired EGUs regulatory certainty to help them make informed decisions on how to comply with CAA requirements. However, Congress designed the CAA such that states have the primary responsibility for achieving and maintaining the NAAQS within their geographic area by submitting SIPs which will specify the details of how the state will meet the NAAQS. Pursuant to section 107(d), the states make initial recommendations of designations for areas within each state and EPA then promulgates the designations after considering the state's submission and other information. EPA promulgated initial designations for the 2010 SO2 NAAQS in August 2013. EPA proposed on May 14, 2014 an additional process for gathering further SO2 emissions source information for implementing the 2010 SO2 NAAQS. 79 FR 27446. EPA has also proposed to enter a settlement to resolve deadline suits regarding the remaining designations that would, if entered by the court, impose deadlines for three more rounds of designations. Under these proposed schemes, Virginia would have the initial opportunity for proposing additional areas for designations for the 2010 SO2 NAAQS. While EPA appreciates Sierra Club's comments, further designations will occur pursuant to the section 107(d) process, and in accordance with any applicable future court orders addressing the designations deadline suits and, if promulgated, future EPA rules addressing additional monitoring or modeling to be conducted by states. Virginia may, on its own accord, decide to impose additional SO2 emission limitations to avoid future designations to nonattainment. If Virginia areas are designated nonattainment, Virginia will have the initial opportunity to develop additional emissions limitations needed to attain the NAAQS in the future, and EPA would be charged with reviewing whether those are adequate. If EPA were to disapprove the limits, then it would fall to EPA to adopt limits in a FIP. However, such considerations are not required of Virginia to consider at the infrastructure SIP stage of NAAQS implementation, as this action relates to our approval of Virginia's SO2 infrastructure SIP submittal pursuant to section 110(a) of the CAA, and Sierra Club's comments regarding designations under section 107 are neither relevant nor germane to EPA's approval of Virginia's SO2 infrastructure SIP. Likewise, while EPA appreciates Sierra Club's concern for providing “regulatory certainty” for coal-fired EGUs in Virginia, such concerns for regulatory certainty are not requirements for infrastructure SIPs as outlined by Congress in section 110(a)(2) nor as discussed in EPA's Infrastructure SIP Guidance. See Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995)) (discussing that states have primary responsibility for determining an emission reductions program for its areas subject to EPA approval dependent upon whether the SIP as a whole meets applicable requirements of the CAA). Thus, EPA does not believe it is appropriate and necessary to condition approval of Virginia's infrastructure SIP upon inclusion of a particular emission reduction program as long as the SIP otherwise meets the requirements of the CAA. Sierra Club's comments regarding emission limits providing “regulatory certainty” for EGUs are irrelevant to EPA's approval of Virginia's infrastructure SIP for the 2010 SO2 NAAQS, and EPA disagrees that the infrastructure SIP must be disapproved for not including enforceable emissions limitations to prevent future nonattainment designations or aid in providing “regulatory certainty.”

Comment 10: The Commenter claims EPA must disapprove the proposed infrastructure SIP for the 2010 SO2 NAAQS for its failure to include measures to ensure compliance with section 110(a)(2)(A) for the 2010 SO2 NAAQS. The Commenter claims the provisions listed by Virginia for section 110(a)(2)(A) in its 2010 SO2 NAAQS infrastructure SIP are not appropriate for the NAAQS as evidenced by the Commenter's modeling for plants which are not in areas presently designated nonattainment for the 2010 SO2 NAAQS. Sierra Club claims Virginia wrongly relies on CAA part D attainment planning requirements to address NAAQS exceedances. The Commenter asserts that the infrastructure SIP required by section 110(a) must provide assurances that the NAAQS will be attained and maintained for areas not designated nonattainment. The Commenter claims the proposed infrastructure SIP relies on emission limits added to the SIP prior to the 2010 SO2 NAAQS and does not include hourly SO2 emission limits. Sierra Club therefore contends the proposed infrastructure SIP cannot ensure Virginia will attain and maintain the 2010 SO2 NAAQS and EPA must disapprove the SIP and require 1-hour emission limits to address exceedances shown by Sierra Club's submitted modeling.

Response 10: EPA disagrees with Sierra Club that it must disapprove the Virginia proposed infrastructure SIP for the 2010 SO2 NAAQS for the reasons already discussed in response to other comments from Sierra Club. Generally, it is not appropriate to bypass the attainment planning process by imposing separate requirements, such as additional SO2 emission limits on sources, outside the attainment planning process. Such actions would be disruptive and premature absent exceptional circumstances.19 See Homer City/Mansfield Order at 10-19 (finding Pennsylvania SIP did not require imposition of 1-hour SO2 emission limits on sources independent of the part D attainment planning process contemplated by the CAA). As discussed in the Homer City/Mansfield Order, imposing different emission limitation requirements outside of the attainment planning process contemplated by Congress in part D of the CAA to address requirements for attaining the NAAQS might ultimately prove inconsistent with any attainment SIP Virginia will submit (when required) for designated nonattainment areas, even where one source is likely responsible for nonattainment. Id. As discussed in great detail above, the conceptual purpose of an infrastructure SIP submission is to assure that an air agency's SIP contains the necessary structural requirements for the new or revised NAAQS. Infrastructure SIP Guidance at p. 2.

As mentioned previously, while EPA had in 2010 initially suggested that states submit substantive attainment demonstration SIPs for unclassifiable areas based on air dispersion modeling in section 110(a) infrastructure SIPs, EPA subsequently gathered additional information and clarified its position. The April 12, 2012 letters to states, 2012 Draft White Paper, and February 6, 2013 memorandum on next steps, as previously discussed, clearly recommend states focus section 110(a) infrastructure SIPs due in June 2013 on “traditional infrastructure elements” in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for unclassifiable areas.20

Therefore, EPA disagrees with the Commenter that the infrastructure SIP must be disapproved for failure to include measures to ensure compliance with the 2010 SO2 NAAQS. As Congress provided for state primacy in implementing the NAAQS, Virginia should appropriately evaluate and impose necessary SO2 emission limits on sources, where or when needed in Virginia, for any areas in Virginia which may later be designated nonattainment with the 2010 SO2 NAAQS under section 107.21

Comment 11: The Commenter alleges that the proposed SO2 infrastructure SIP does not address sources significantly contributing to nonattainment or interfering with maintenance of the NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states EPA must therefore disapprove the infrastructure SIP and impose a FIP. Sierra Club claims its modeling shows that at least one plant, Chesapeake Energy Center, is contributing to exceedances in other states. Sierra Club states that the CAA requires infrastructure SIPs to address cross-state air pollution within three years of the NAAQS promulgation. The Commenter argues that Virginia has not done so and that the EPA must disapprove the proposed infrastructure SIP and issue a FIP to correct these shortcomings. The Commenter references the recent Supreme Court decision, EPA v. EME Homer City Generation,, L.P. et al, 134 S. Ct. 1584 (2014), which supports the states' mandatory duty to address cross-state pollution under section 110(a)(2)(D)(i)(I) and affirmed EPA's ability to impose a FIP upon states' failure to address cross-state air pollution.

Response 11: EPA disagrees with Sierra Club's statement that EPA must disapprove the submitted 2010 SO2 infrastructure SIP due to Virginia's failure to address section 110(a)(2)(D)(i)(I). In EPA's NPR proposing to approve Virginia's infrastructure SIP for the 2010 SO2 NAAQS, EPA clearly stated that it was not taking any final action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I) which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. Virginia did not make a submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS, and thus there is no such submission upon which EPA proposed to take disapproval action under section 110(k) of the CAA. EPA cannot act under section 110(k) to disapprove a SIP submission that has not been submitted to EPA. EPA also disagrees with the Commenter that EPA cannot approve other elements of an infrastructure SIP submission without the good neighbor provision. EPA additionally believes there is no basis for the contention that EPA has triggered its obligation to issue a FIP addressing the good neighbor obligation under section 110(c), as EPA has neither found that Virginia failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 SO2 NAAQS or found that such a submission was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 SO2 NAAQS.

EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Virginia's infrastructure SIP submission for the 2010 SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Virginia had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 SO2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate.

The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters EPA's interpretation that EPA may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS.

Furthermore, as discussed above, EPA has no obligation to issue a FIP pursuant to 110(c)(1) to address Virginia's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Virginia failed to make the required submission addressing the element or the Commonwealth has made such a submission but it is incomplete, or EPA disapproves a SIP submittal addressing that element. Until either occurs, EPA does not have the authority to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for Virginia to address 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS at this time.

Regarding Sierra Club's assertion that one stationary source is causing “exceedances” in other states according to the modeling conducted by Sierra Club, EPA believes such assertion is irrelevant to our action approving Virginia's infrastructure SIP for the 2010 SO2 NAAQS because EPA has not proposed any action on section 110(a)(2)(D)(i)(I) regarding Virginia's obligations to address the transport of SO2 emissions. EPA may consider such information if Sierra Club resubmits when EPA does act upon a Virginia SIP submission to address 110(a)(2)(D)(i)(I) obligations for the 2010 SO2 NAAQS.

Comment 12: Sierra Club contends that the EPA must disapprove the proposed infrastructure SIP because it does not contain adequate provisions to prohibit sources and emissions in Virginia from interfering with another state's visibility as required by section 110(a)(2)(D)(i)(II) of the CAA. The Commenter cites to the Supreme Court's decision in EME Homer City in support of its statement that Virginia's duty to protect visibility is a mandatory duty. The Commenter asserts EPA ignores its deadline by not acting in today's rulemaking on the visibility prong of section 110(a)(2)(D)(i)(II) and asserts EPA cites no legally defensible reason for not acting. Finally, the Commenter argues that the “deadline for state action has passed” and EPA must disapprove the SO2 infrastructure SIP and issue a FIP to address the failings of the infrastructure SIP to protect visibility in other states.

Response 12: EPA disagrees with the Commenter that in today's rulemaking action EPA must disapprove the Virginia SO2 infrastructure SIP for its failure to protect visibility and issue a FIP addressing visibility protection for Virginia. In EPA's NPR proposing to approve Virginia's infrastructure SIP for the 2010 SO2 NAAQS, EPA clearly stated that it was not proposing to take any action at that time with respect to the visibility protection provisions in section 110(a)(2)(D)(i)(II). While Virginia did make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(II) for visibility protection, and cited to its regional haze SIP and CAIR as meeting these requirements, EPA did not propose to take any action in the NPR with respect to Virginia's visibility protection obligations pursuant to section 110(a)(2)(D)(i)(II).22 As indicated in EPA's NPR, EPA anticipates taking later action on the portion of Virginia's June 18, 2014 SIP submission addressing visibility protection.23 EPA disagrees with the Commenter that EPA cannot approve a portion of an infrastructure SIP submittal without taking action on the visibility protection provision. Further, there is no basis for the contention that EPA must issue a FIP under section 110(c) within two years, as EPA has neither disapproved nor found that Virginia failed to submit a required 110(a)(2)(D)(i)(II) SIP submission addressing visibility protection for the 2010 SO2 NAAQS.

As previously discussed regarding the good-neighbor SIP provisions for infrastructure SIPs, EPA disagrees with the Commenter's argument that EPA cannot approve a SIP without certain elements such as the visibility protection element. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such a plan meets the requirements of the CAA. As discussed above, this authority to approve SIP revisions in separable parts was included in the 1990 Amendments to the CAA. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA).

As discussed above, EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve individual elements of Virginia's infrastructure submission for the 2010 SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(II) for visibility protection. EPA views discrete infrastructure SIP requirements as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual, severable measures. In short, EPA believes we have discretion under section 110(k) of the CAA to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS.

EPA also has no obligation to issue a FIP to address Virginia's obligations under section 110(a)(2)(D)(i)(II) until EPA first finds Virginia failed to satisfy its visibility protection obligations with a complete SIP submittal addressing that element or disapproves any SIP submittal addressing that element. Until such occurs, EPA may not issue any further FIP for visibility protection pursuant to section 110(c).

Comment 13: The Commenter alleges the infrastructure SIP must not allow for such things as ambient air incremental increases, variances, exceptions, or exclusions for limits on sources of pollutants; otherwise, the Commenter alleges Virginia cannot assure compliance with infrastructure SIP requirements for the SO2 NAAQS. The Commenter asserts the infrastructure SIP should not allow for certain sources to be exempt from permit requirements nor allow affirmative defenses or variances to “requirements” during startup, shutdown or malfunction (SSM) or due to hardship. The Commenter states EPA cannot delay acting on “startup, shutdown, and malfunction” of operations or director's variances because of the mandatory timeline for infrastructure SIPs under the CAA. The Commenter also asserts EPA should issue a finding of non-completeness and set forth a FIP because Virginia has failed to submit certain required components for its SO2 infrastructure SIP. The Commenter maintains the CAA is clear and that EPA's “segmented and piecemeal approach” to approving Virginia's infrastructure SIP is inappropriate because infrastructure SIPs must contain the entirety of a state's comprehensive plan to implement and maintain the NAAQS and because the components of section 110(a)(2) are interrelated. Thus, the Commenter asserts EPA must disapprove the SO2 infrastructure SIP submittal and issue a FIP.

Response 13: EPA disagrees with the Commenter that EPA must disapprove Virginia's infrastructure SIP and issue a FIP, instead of acting in a “piecemeal” approach (as Sierra Club calls it) in approving the majority of Virginia's SO2 infrastructure SIP while acting at a later date on certain specific elements of the SIP, including the portions related to transport and regional haze in 110(a)(2)(D)(i)(I) and (II) and the portion related to State Boards in 110(a)(2)(E)(ii). As explained in the NPR for this rulemaking action and in the responses above, EPA interprets its authority under section 110(k)(3) of the CAA as affording EPA the discretion to approve individual elements of Virginia's infrastructure submission for the 2010 SO2 NAAQS, while taking later separate action on the infrastructure submission for the requirements of section 110(a)(2)(D)(i) for transport and visibility protection or 110(a)(2)(E)(ii) for State Board requirements. As explained previously, EPA views discrete infrastructure SIP requirements like transport, State Boards, and visibility protection as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing EPA to act on individual, severable measures. Section 110(k)(3) expressly authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. As discussed above, this authority to approve SIP revisions in separable parts was included in the 1990 Amendments to the CAA. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA).

In short, EPA believes that EPA has discretion under section 110(k) to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The Commenter has not provided any case law or EPA interpretation of section 110 to support its contrary interpretation that it is inappropriate or unreasonable for EPA to approve portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS.

In addition, EPA also has no obligation to issue a FIP to address Virginia's obligations under section 110(a)(2)(D)(i)(I) or (II) or 110(a)(2)(E)(ii) until EPA first finds Virginia failed to satisfy its obligations with a complete SIP submittal addressing those elements or disapproves any SIP submittal addressing that element. Until such occurs pursuant to section 110(c), EPA may not issue any FIP for transport, visibility protection, or State Board requirements or the infrastructure SIP as a whole.

EPA also disagrees with the Commenter that EPA is required to address all potential deficiencies that may exist in the Virginia SIP in the context of evaluating an infrastructure SIP submission. In particular, EPA is not addressing any existing SIP provisions related to the treatment of emissions during SSM events, including automatic or director's discretion exemptions, overbroad state enforcement discretion provisions, or affirmative defense provisions. As EPA stated in the TSD for this rulemaking action, EPA is not approving or disapproving any existing Virginia regulatory or statutory provisions with regard to excess emissions during SSM of operations at any facility. EPA believes that a number of states may have SIP provisions related to emissions during SSM events which are contrary to the CAA and existing EPA guidance (August 11, 1999 Steven Herman and Robert Perciasepe Guidance Memorandum, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown”), and EPA is addressing such potentially deficient SIP provisions in a separate rulemaking. See 78 FR 12460 (February 22, 2013) (proposed rulemaking on SSM SIP provisions). See also 79 FR 55920 (September 17, 2014) (supplemental proposed rulemaking on affirmative defense provisions). In the TSD, EPA also stated that EPA is not approving or disapproving any existing Virginia regulatory or statutory provisions with regard to director's discretion or variance provisions. EPA believes that a number of states may have such provisions which are contrary to the CAA and existing EPA guidance (see 52 FR 45109, November 1987), and EPA is also addressing such state regulations in the separate rulemaking. See 78 FR 12460. Similarly, EPA is not approving or disapproving any affirmative defense provisions applicable to excess emissions during SSM events in this action. EPA has separately proposed to address such existing affirmative defense provisions in the SIPs of many states, including Virginia. See also 79 FR 55920. In the meantime, EPA encourages any state having deficient SIP provisions related to the treatment of excess emissions during SSM events to take steps to correct them as soon as possible. Upon conclusion of EPA's SSM SIP call rulemaking, any states that EPA determines have impermissible SIP provisions related to SSM events will have time to adjust their SIPs where necessary and as required. As EPA is neither approving nor disapproving any new provisions related to automatic or director's discretion exemptions, overbroad state enforcement discretion provisions, or affirmative defense provisions in this rulemaking, EPA disagrees with Sierra Club's comment that the infrastructure SIP “must not allow for such things” and disagrees with any inference from the comment that EPA must disapprove the Virginia SO2 infrastructure SIP because of any such existing deficient provisions. Moreover, EPA emphasizes that by approving Virginia's SO2 infrastructure SIP submission, EPA is not approving or reapproving any such deficient provisions that exist in the current SIP.

Regarding the Commenter's statement that the infrastructure SIP should not allow Virginia to exempt certain sources from permitting, the Sierra Club fails to identify any exemptions from permitting that preclude EPA from approving the infrastructure SIP. EPA explained in the TSD for this rulemaking that Virginia's permitting program for major and minor stationary sources met requirements in the CAA for section 110(a)(2)(C). Specifically, EPA stated Virginia has a SIP-approved minor new source review (NSR) program located in 9 VAC 5-80-10 (New and Modified Stationary Sources) and 9 VAC 5-80-11 (Stationary Source Permit Exemption Levels) which regulates certain modifications and construction of stationary sources within areas covered by its SIP as necessary to assure the NAAQS are achieved. EPA had previously approved such provisions into the Virginia SIP as they met requirements for a minor NSR program in accordance with the CAA and 40 CFR 51.160. See 65 FR 21315 (April 21, 2000).

EPA's TSD for this rulemaking also explained Virginia's SIP met requirements in section 110(a)(2)(C) for a PSD permit program as required in part C of title I of the CAA. In Virginia, construction and modification of stationary sources are covered under Article 8, Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas (9 VAC 5-80-1605 et seq.) which is included in the approved Virginia SIP. See 40 CFR 52.2420(c). Article 8 also provides that construction and modification of major stationary sources will not cause or contribute to a violation of any NAAQS (9 VAC 5-80-1635, Ambient Air Increments and 9 VAC 5-80-1645, Ambient Air Ceilings) and requires application of Best Available Control Technology to new or modified sources (9 VAC 5-80-1705, Control Technology Review). EPA has previously approved Virginia's PSD permit program as meeting the requirements in part C, title I of the CAA and 40 CFR 51.166. See 79 FR 10377 (February 25, 2014). The Sierra Club has not identified any specific exemption that is allegedly problematic or any recent amendments to the Virginia rules that has added such an exemption. The Sierra Club has not demonstrated that Virginia's permitting program for major and minor stationary sources does not meet requirements in the CAA for section 110(a)(2)(C).

EPA is approving the following elements of Virginia's June 18, 2014 SIP revision for the 2010 SO2 NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD requirements), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (consultation, public notification, and PSD), (K), (L), and (M). Virginia's SIP revision provides the basic program elements specified in Section 110(a)(2) necessary to implement, maintain, and enforce the 2010 SO2 NAAQS. This final rulemaking action does not include action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process. Additionally, EPA will take later, separate action on section 110(a)(2)(D)(i)(I) (interstate transport of emissions), (D)(i)(II) (visibility protection), (J) (visibility protection) and (E)(ii) (Section 128, “State Boards”) for the 2010 SO2 NAAQS as previously discussed.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, Sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under Section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).

In addition, this rule approving portions of Virginia's infrastructure SIP for the 2010 SO2 NAAQS does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2010 SO2 NAAQS for the Commonwealth of Virginia, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

The background for today's action is discussed in detail in our November 10, 2014 proposal (79 FR 66633). In that notice, we proposed to approve portions of three SIP submittals for the State of Arkansas submitted on July 26, 2010; November 6, 2012; and September 10, 2014, that collectively update the Arkansas SIP to provide for regulation and permitting of PM2.5 in the Arkansas PSD program consistent with federal PSD permit requirements.

The September 10, 2014, submittal was a request for parallel processing of revisions adopted by the ADEQ on August 22, 2014, as revisions to the state regulations. Under the EPA's “parallel processing” procedure, the EPA proposes a rulemaking action on a proposed SIP revision concurrently with the State's public review process. If the State's proposed SIP revision is not significantly or substantively changed, the EPA will finalize the rulemaking on the SIP revision as proposed after responding to any submitted comments. Final rulemaking action by the EPA will occur only after the final SIP revision has been fully adopted by the ADEQ and submitted formally to the EPA for approval as a revision to the Arkansas SIP. See 40 CFR part 51, Appendix V.

The ADEQ completed their state rulemaking process and submitted the final revisions to the Arkansas SIP on December 1, 2014. The EPA has evaluated the State's final SIP revision for any changes made from the time of proposal. See “Addendum to the TSD” for EPA-R06-OAR-2014-0700, available in the rulemaking docket. Our evaluation indicates that the ADEQ made no changes to the proposed SIP revision. As such, the EPA is proceeding with our final approval of the revisions to the Arkansas SIP. This action is being taken under section 110 of the Act. We did not receive any comments regarding our proposal.

We are approving portions of three SIP submittals for the State of Arkansas submitted on July 26, 2010; November 6, 2012; and December 1, 2014, because we have determined that these SIP packages were adopted and submitted in accordance with the CAA and EPA regulations regarding implementation of the PM2.5 NAAQS. The EPA finds that the Arkansas PSD SIP meets all the CAA PSD requirements for implementing the 1997 and 2006 PM2.5 NAAQS, including the PM2.5 PSD requirements contained in the federal regulations as of December 9, 2013, including regulation of NOX and SO2 as PM2.5 precursors, regulation of condensables, and PM2.5 increments. As a result of today's final action, the EPA will stop the two FIP clocks that are currently running on the Arkansas PSD program pertaining to PM2.5 PSD implementation. The EPA is approving the following revisions into the Arkansas SIP:

• Revisions to Regulation 19, Chapter 1 submitted on July 26, 2010, and November 6, 2012;

• Revisions to Regulation 19, Chapter 2 submitted on July 26, 2010, November 6, 2012, and December 1, 2014, with the exception of the GHG Biomass Deferral language submitted to the definition of CO2e on November 6, 2012;

• Revision to Regulation 19, Chapter 3 submitted on July 26, 2010, and December 1, 2014;

• Revisions to Regulation 19, Chapter 5 submitted on July 26, 2010, and December 1, 2014;

• Revisions to Regulation 19, Chapter 6 submitted on July 26, 2010;

• Revisions to Regulation 19, Chapter 7 submitted on July 26, 2010;

• Revisions to Regulation 19, Chapter 9 submitted on December 1, 2014;

• Revisions to Regulation 19, Chapter 10 submitted on July 26, 2010;

• Revisions to Regulation 19, Chapter 11 submitted on July 26, 2010;

• Revisions to Regulation 19, Chapter 13 submitted on July 26, 2010;

• New Regulation 19, Appendix B submitted on December 1, 2014; and

• A portion of the December 17, 2007, SIP submittal addressing interstate transport of air pollution and PSD for the 1997 PM2.5 NAAQS (CAA 110(a)(2)(D)(i)(II)).

This action is being taken under section 110 of the Act.

In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.4, the EPA is finalizing the incorporation by reference of the revisions to the Arkansas Prevention of Significant Deterioration regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulation.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

EPA is taking direct final action to amend Missouri's SIP, 111(d) plan, and operating permits program by approving the state's requests to amend the following rules:

1. 10 CSR 10-6.040, Reference Methods, received November 6, 2013.

2. 10 CSR 10-6.040, Reference Methods, received November 20, 2014.

3. 10 CSR 10-6.020, Definitions and Common Reference Tables, received March 27, 2014.

4. 10 CSR 10-5.240, Additional Air Quality Control Measures May be Required When Sources are Clustered in a Small Land Area, received July 7, 2014.

5. 10 CSR 10-6.010, Air Quality Standards, received July 14, 2014.

The revisions submitted by the state include revisions to update standards and reference methods, to clarify, add or amend definitions and reference tables, to rescind an outdated rule, and to update and clarify ambient air quality standards. For more information on the state's submissions, specific revisions to each rule and EPA's review of the revisions, see the Technical Support Document (TSD) that is a part of this docket.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the TSD which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. The substantive requirements of 40 CFR part 62 and Title V of the 1990 CAA Amendments and 40 CFR part 70 have been met as well.

EPA is taking direct final action to approve this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the SIP, 111(d), and operating permits revisions, if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Missouri rules 10-5.240, 10-6.010, 10-6.020, and 10-6.040 described in the direct final amendments to 40 CFR part 52 set forth below. 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 Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

In addition, these direct final actions are not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this action 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).

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Burden is defined at 5 CFR 1320.3(b).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register.

A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the final rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 52 as set forth below: Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

On November 25, 2013, the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), formally submitted a request to redesignate the Reading Area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS. Concurrently, PADEP submitted a maintenance plan for the Area as a SIP revision to ensure continued attainment throughout the Area over the next 10 years. The maintenance plan includes the 2017 and 2025 PM2.5 and NOX MVEBs for the Area for the 1997 annual PM2.5 NAAQS, which EPA is approving for transportation conformity purposes. PADEP also submitted a 2007 comprehensive emissions inventory for the 1997 annual PM2.5 NAAQS for PM2.5, NOX, sulfur dioxide (SO2), volatile organic compounds (VOC), and ammonia (NH3).

On December 22, 2014 (79 FR 76251), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. In the NPR, EPA proposed approval of Pennsylvania's November 25, 2013 request to redesignate the Reading Area to attainment for the 1997 annual PM2.5 NAAQS, including the associated maintenance plan for the Reading Area, the 2017 and 2025 PM2.5 and NOX MVEBs, which EPA proposed to approve and find adequate for purposes of transportation conformity, and the 2007 emissions inventory to meet the emissions inventory requirement of section 172(c)(3) of the CAA.

The details of Pennsylvania's submittal and the rationale for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is taking final actions on the redesignation request and SIP revision submitted by the Commonwealth of Pennsylvania on November 25, 2013 for the Reading Area for the 1997 annual PM2.5 NAAQS. EPA is approving Pennsylvania's redesignation request for the 1997 annual PM2.5 NAAQS, because EPA has determined that the request meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA for this standard. EPA finds that the monitoring data demonstrates that the Area has attained the 1997 PM2.5 NAAQS, and continues to attain the NAAQS. EPA is also approving the associated maintenance plan for the Reading Area as a revision to the Pennsylvania SIP for the 1997 annual PM2.5 NAAQS because it meets the requirements of section 175A of the CAA. EPA is also approving and finding adequate the 2017 and 2025 PM2.5 and NOX MVEBs submitted by Pennsylvania for the Reading Area for transportation conformity purposes. Finally, EPA is approving the 2007 emissions inventory to meet section 172(c)(3) of the CAA. Approval of this redesignation request will change the official designation of the Reading Area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. A delayed effective date is unnecessary due to the nature of a redesignation to attainment, which eliminates CAA obligations that would otherwise apply. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the Commonwealth of Pennsylvania of the obligation to comply with nonattainment-related planning requirements for the Area pursuant to Part D of the CAA and approves certain emissions inventories and MVEBs for the Area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d) for this action to become effective on the date of publication of this notice.

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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).

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, approving the redesignation request and maintenance plan, and comprehensive emissions inventory for the Reading Area for the 1997 annual PM2.5 NAAQS may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR parts 52 and 81 are amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0110 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 4, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0110, by one of the following methods:

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

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

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

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

In the Federal Register of February 25, 2014 (79 FR 10459) (FRL-9906-77), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3E8223) by IR-4, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.523 be amended by establishing tolerances for residues of the molluscicide metaldehyde, 2,4,6,8-tetramethyl-1,3,5,7-tetroxocane, in or on clover, forage at 0.5 parts per million (ppm); clover, hay at 0.5 ppm; ginseng at 0.05 ppm; vegetable legume, edible podded, subgroup 6A at 0.8 ppm; pea and bean, succulent shelled, subgroup 6B at 0.2 ppm; vegetable, foliage of legume, except soybean, subgroup 7A at 1.5 ppm; tomato subgroup 8-10A at 0.24 ppm; and fruit, citrus, group 10-10 at 0.26 ppm. Clover, forage and clover, hay were proposed as tolerances with regional registrations. Additionally, the petition requested removing the established tolerances in or on fruit, citrus, group 10 at 0.26 ppm; and tomato at 0.24 ppm, upon establishment of the proposed tolerances. That document referenced a summary of the petition prepared by Lonza, Inc., the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has modified the proposed tolerances for clover, forage and clover, hay from 0.5 ppm to 0.60 ppm. The reason for these changes are explained in Unit IV.D.

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

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for metaldehyde including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with metaldehyde follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The principal toxic effects for metaldehyde are clinical signs of neurotoxicity, as well as changes in the liver and testes/prostate following repeated oral dosing. The dog is the most sensitive species for neurotoxic effects. Nervous system effects observed in the subchronic and chronic oral toxicity studies include: Ataxia and tremors; twitching; salivation; emesis; rapid respiration in dogs and maternal rats; and limb paralysis, spinal cord necrosis, and hemorrhage in maternal rats. Liver effects include increased liver weight, increased incidence of liver lesions (hepatocellular necrosis, hepatocellular hypertrophy and inflammation), and an increased incidence of hepatocellular adenomas in female rats and in both sexes of mice. In dogs, atrophy of the testes and prostate was observed following subchronic and chronic exposure.

In the rat developmental toxicity study, maternal toxicity was observed as evidenced by clinical signs including ataxia, tremors, and twitching at the highest dose tested (HDT) in the absence of developmental toxicity. There was no observed developmental or maternal toxicity in the rabbit developmental toxicity study. In the 2-generation rat reproductive toxicity study, mortality and clinical signs including limb paralysis, spinal cord necrosis and hemorrhage were observed in the maternal animals. Effects on the offspring in the rat reproductive toxicity study consisted of decreased pup body weight and body weight gains; reproductive toxicity was not observed.

In the rat, clinical signs of neurotoxicity occurred at high dose levels following repeated oral exposures. In the 90-day neurotoxicity study, bilateral hindlimb paralysis was observed in one female rat at the HDT.

Chronic feeding studies in rats and mice indicated that metaldehyde produced liver effects characterized by liver hypertrophy and liver tumors. The chronic mouse toxicity study showed that metaldehyde was associated with a common tumor in both sexes (liver tumors, adenomas), and the rat chronic toxicity study showed that metaldehyde was associated with liver adenomas in the female. EPA has determined that quantification of risk using a nonlinear Reference Dose (RfD) approach, using the chronic RfD/Population-Adjusted Dose (PAD), will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to metaldehyde. That conclusion is based on the following considerations:

1. Tumors found are commonly seen in the mouse;

2. Liver tumors (adenomas) in both species were benign;

3. Metaldehyde is not mutagenic;

4. No carcinogenic response was seen in the male rat;

5. Incidence of adenomas at the high dose in the female rat was within the historical control range of the testing lab; and

6. Both the No Observed Adverse Effect Level (NOAEL) and Lowest Observed Adverse Effect Level (LOAEL) from the chronic rat study on which the chronic RfD/PAD was based are well below the dose at which adenomas were seen.

Specific information on the studies received and the nature of the adverse effects caused by metaldehyde as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Metaldehyde; Human Health Risk Assessment for Proposed New Uses on Vegetable, Legume, Edible Podded [Subgroup 6A], Pea and Bean, Succulent Shelled [Subgroup 6B], Vegetable, Foliage of Legume, Except Soybean [Subgroup 7A], Clover Forage and Hay, and Ginseng; and for Amendments to Existing Tolerances [Tomato and Crop Group 10]” in docket ID number EPA-HQ-OPP-2014-0110.

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

A summary of the toxicological endpoints for metaldehyde used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of November 27, 2013 (78 FR 70864) (FRL-9399-8).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to metaldehyde, EPA considered exposure under the petitioned-for tolerances as well as all existing metaldehyde tolerances in 40 CFR 180.523. EPA assessed dietary exposures from metaldehyde in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for metaldehyde. In estimating acute dietary exposure, EPA used the Dietary Exposure Evaluation Model with the Food Commodity Intake Database (DEEM-FCID). This software incorporates 2003-2008 food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA used tolerance-level residues for all commodities and 100 percent crop treated (PCT) estimates. The Agency also assumed processing factors to be 1.0 for all commodities except for dried tomato, tomato juice, cranberry juice, and high fructose corn syrup; for these commodities, DEEM default processing factors were used.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 NHANES/WWEIA. As to residue levels in food, EPA used tolerance-level residues for all commodities and assumed 100 PCT. The Agency also assumed processing factors to be 1.0 for all commodities except for dried tomato, tomato juice, cranberry juice, and high fructose corn syrup; for these commodities, DEEM default processing factors were used.

iii. Cancer. As discussed in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to metaldehyde. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for metaldehyde. Tolerance-level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for metaldehyde in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of metaldehyde. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of metaldehyde for acute exposures are estimated to be 205 parts per billion (ppb) for surface water and 1,880 ppb for ground water and for chronic exposures for non-cancer assessments are estimated to be 136 ppb for surface water and 915 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

For acute dietary risk assessment, the water concentration value of 1,880 ppb was used to assess the contribution to drinking water.

For chronic dietary risk assessment, the water concentration of value 915 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Metaldehyde is currently registered for the following uses that could result in residential exposures: Residential ornamentals and lawn/turf applications. EPA assessed residential exposure using the following assumptions:

i. Adult handler short-term inhalation exposures from loading/applying metaldehyde products including liquid ready-to-use products (with manually-pressurized hand wands, hose-end sprayers, and sprinkler cans) and applying granules (via push-type rotary spreaders, belly grinders, spoons, cups, hands, and shaker cans); and

ii. Metaldehyde incidental post-application exposures assessed for children, including short-term exposure from hand-to-mouth and object-to-mouth contact with treated turf, and short- and intermediate-term exposures from treated soil ingestion. While EPA did calculate an acute incidental ingestion scenario for toddlers accidentally ingesting granules of metaldehyde, it is not appropriate to aggregate this scenario because it represents poisoning incident which is not likely to overlap with the typical post-application exposure scenario. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/science/residential-exposure-sop.html.

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

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

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

2. Prenatal and postnatal sensitivity. Developmental toxicity was not observed in the rat or rabbit developmental toxicity studies, and maternal toxicity was not observed in the rabbit. In the rat, maternal toxicity was observed, as evidenced by clinical signs (ataxia, tremors, and twitching) at the HDT. In the rat reproductive toxicity study, mortality and clinical signs (limb paralysis, spinal cord necrosis and hemorrhage) were observed in the maternal animals, and the effects on the offspring consisted of decreased pup body weight and body weight gains. Reproductive toxicity was not observed.

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

i. The toxicity database for metaldehyde is complete.

ii. The toxicity database contains indications of neurotoxicity resulting from exposure to metaldehyde, including:

a. Clinical signs [ataxia, twitching, tremors, prostration, paresis of hind legs] in female rats in the developmental toxicity study;

b. Hindlimb paralysis, necrosis and hemorrhage in the spinal cord and vertebra luxation in F0 dams during lactation period in the 2-generation reproduction study;

c. Bilateral hindlimb paralysis observed initially on day 10 in one high-dose female sacrificed on day 22 due to poor condition in the 90-day subchronic neurotoxicity study in rats; no neuropathology was evident;

d. Clinical signs [ataxia, tremors, twitching, salivation] in the chronic dog study, which occurred within the first week of exposure and persisted through week 19; other signs observed in the chronic dog study included lateral position, reduced mobility, convulsions, and vocalization in one female, and agitation in another.

EPA has determined that the acute and developmental neurotoxicity studies are not needed, nor are additional uncertainty factors (UFs) necessary to account for neurotoxicity. There were no indications of neurotoxic effects in developing rats or rabbits in either the developmental or reproductive studies. Although there were some effects in adult rats, those effects occurred at doses much higher than in the dog study. The dog is the more sensitive species for neurotoxic effects and points of departure (30 mg/kg/day and 10 mg/kg/day) are based on the chronic dog oral toxicity study, which EPA considers to be protective of any neurotoxicity at higher dose levels.

iii. There is no evidence that metaldehyde results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to metaldehyde in drinking water. EPA used similarly conservative assumptions to assess post application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by metaldehyde.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to metaldehyde will occupy 55% of the aPAD for all infants (less than 1 year old), the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to metaldehyde from food and water will utilize 51% of the cPAD for all infants less than 1 year old the population group receiving the greatest exposure. Chronic exposures to metaldehyde are expected for food and water only.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Metaldehyde is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to metaldehyde. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,400 for adults and 590 for children. Because EPA's level of concern for metaldehyde is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Metaldehyde is currently registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to metaldehyde.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in an aggregate MOE of 280 for children, only. Because EPA's level of concern for metaldehyde is a MOE of 100 or below, this MOE is not of concern.

5. Aggregate cancer risk for U.S. population. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to metaldehyde. Cancer risk was assessed using the same cPAD and exposure estimates as discussed in Unit III.A. and Unit III.C.1.ii. for the chronic risk assessment. Based on the results discussed in Unit III.E.2., EPA concludes that aggregate exposure to metaldehyde will not pose a cancer risk.

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

Adequate enforcement methodology (gas chromatography with mass spectrometry (GC/MS) method (EN-CAS Method No. ENC-3/99, Revision 1) is available to enforce the tolerance expression.

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

The Codex has not established a MRL for metaldehyde.

Six comments were posted in the docket for this action. However, the comments received were regarding bee concerns for a different chemical, sulfoxaflor. These comments were addressed at the time the Agency assessed sulfoxaflor. As a result, the only comments received were determined to be irrelevant to the Agency's tolerance action on metaldehyde.

The Agency has determined that tolerances of 0.60 ppm for clover hay and forage are appropriate based on available residue data and use of the OECD tolerance calculation procedures.

Therefore, tolerances are established for residues of metaldehyde in or on the following commodities: Vegetable, legume, edible podded, subgroup 6A at 0.80 ppm; pea and bean, succulent shelled, subgroup 6B at 0.20 ppm; vegetable, foliage of legume, except soybean, subgroup 7A at 1.5 ppm; tomato subgroup 8-10A at 0.24 ppm; fruit, citrus, group 10-10 at 0.26; and ginseng at 0.05 ppm; and tolerances with regional registrations for clover, forage at 0.60 ppm and clover, hay at 0.60 ppm. The regulation additionally removes the tolerances in or on fruit, citrus group 10 and tomato.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0601 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 4, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0601, by one of the following methods:

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

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

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

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

In the Federal Register of September 12, 2013 (78 FR 56185) (FRL-9399-7), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10549) by Ecolab, Inc. 370 N. Wabasha Street, St. Paul, MN 55102. The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of 9-octadecenoic acid (9Z)-, sulfonated, oxidized (CAS Reg. No. 1315321-93-7); 9-octadecenoic acid (9Z)-, sulfonated, oxidized, potassium salts (CAS Reg. No. 1315321-94-8); and 9-octadecenoic acid (9Z)-, sulfonated, oxidized, sodium salts, (CAS No. 1315321-95-9) when used as an inert ingredient in antimicrobial pesticide formulations used on food contact surfaces in public eating places, dairy processing equipment, and food processing equipment and utensils at a maximum end-use concentration not to exceed 250 ppm. That document referenced a summary of the petition prepared by Ecolab Inc, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

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

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

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

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salt (also referred to as peroxy sulfonated oleic acid (PSOA)) as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies discussed in this unit.

Peroxy sulfonated oleic acid is acutely toxic via the oral route and is highly corrosive via the dermal and inhalation routes of exposure. In a 28-day oral toxicity study (OECD Guideline 407), rats were administered PSOA via gavage at dose levels of 15 milligrams/kilogram/day (mg/kg/day) and 50 mg/kg/day. No observable adverse effects were seen at either dose level but since no systemic effects were observed, the dosing was considered by the Agency to not be adequate.

In a developmental toxicity (OECD Guideline 414) study with PSOA, the parental NOAEL for systemic effects was 50 mg/kg bw/day, the highest dose tested. The NOAEL for embryotoxic, fetotoxic and developmental effects was also 50 mg/kg bw/day, the highest dose tested.

The dosing in the 28-day gavage study and the developmental toxicity studies was considered inadequate because animals were not challenged at higher doses. The applicant suggested that the higher doses were not utilized because of the corrosive nature of the chemical. Since there was no evidence of corrosivity in the study, a 14-day oral toxicity study was conducted at dose levels of 100 mg/kg/day, 300 mg/kg/day and 1,000 mg/kg/day. The study results confirmed that higher doses would have been corrosive.

In a series of genotoxicity studies PSOA is negative for inducing mutations in bacterial and mammalian cells, with and without metabolic activation. In the in vitro chromosome aberration study using human lymphocytes, PSOA was positive with and without metabolic activation. However, the in vivo micronucleus assay in rats was negative.

A neurotoxicity study was not conducted with PSOA. However, detailed functional observations were made among the parameters measured in the 28-day subchronic oral feeding study. There were no PSOA related changes in any of the parameters measured, including functional observations battery (FOB). No evidence of neurotoxicity was observed. An immunotoxicity study was not conducted with PSOA. However, minimal hemorrhage in the thymus was observed after the recovery period in the 14-day oral toxicity study with rats. Since, this effect is a common background lesion it is not considered indicative of potential immunotoxicity. There are no known chronic toxicity studies with PSOA and no available PSOA mammalian metabolism studies.

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

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to PSOA, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from peroxy sulfonated oleic acids in food as follows:

In the absence of actual dietary exposure data resulting from this use, EPA has utilized a conservative, health-protective method of estimating dietary intake that is based upon conservative assumptions related to the amount of residues that can be transferred to foods as a result of the proposed use of 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts in food contact sanitizing pesticide products. This same methodology has been utilized by EPA in estimating dietary exposures to antimicrobial pesticides used in food-handling settings. A complete description of the approach used to assess dietary exposures resulting from food contact sanitizing solution uses of nitric acid can be found at http://www.regulations.gov in document “Peroxy Sulfonated Oleic Acids; Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations,” pp. 14-15 in docket ID number EPA-HQ-OPP-2013-0601. EPA assessed dietary exposures from 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts in food as follows:

i. Acute exposure. No adverse effects attributable to a single exposure of PSOA were seen in the toxicity databases. Therefore, an acute dietary exposure assessment for 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts is not necessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, the Agency believes the assumptions used to estimate chronic dietary exposures lead to an extremely conservative assessment of chronic dietary risk due to a series of compounded conservative assumptions. First, when a surface is treated with a disinfectant, a quantity of the disinfectant remains on the surface (residual solution). In the absence of any other data, EPA has used an estimated worst-case concentration of 1 mg of residual solution per square centimeter (cm) of treated surface area for this quantity. Second, the conservatism of this methodology is compounded by EPA's decision to assume a worst case scenario that all food that an individual consumers will come into contact with 4,000 cm2 of sanitized non-porous food contact surfaces. This contact area represents all the surface area from silverware, china, and glass used by a person who regularly eats three meals per day at an institutional or public facility. Third, EPA assumes that 100% of the material present on food contact surfaces will migrate to food.

2. Dietary exposure from drinking water. Due to the proposed use pattern, the Agency believes PSOA will not enter surface water or ground water as a result of the proposed use. Therefore a dietary exposure assessment for drinking water is not necessary.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure. Peroxy sulfonated oleic acids are not used as an inert ingredient in pesticide products that are registered for specific uses that may result in both indoor and outdoor residential exposures. Therefore, a residential exposure and risk assessment was not conducted for PSOA.

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

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

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

2. Prenatal and postnatal sensitivity. There is no concern for fetal susceptibility. There were no treatment related effects observed in a developmental toxicity study in rats up to the maximum dose tested (50 mg/kg/day). Based on the corrosive nature of PSOA toxicity testing at doses greater than 100 mg/kg/day results in local effects (i.e., severe gastrointestinal irritation) with other observed systemic effects being secondary to the irritation effects. Therefore, based on the available data, there are no concerns for residual uncertainties concerning prenatal and postnatal toxicity.

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

i. The NOAEL used for risk assessment is based on the corrosive effects of PSOA which occur at dose levels below which any systemic toxicity is observed and is therefore protective of potential developmental and reproductive effects.

ii. There is no indication that PSOA is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no indication that PSOA is an immunotoxic chemical and there is no need for additional UFs to account for immunotoxicity.

iv. There is no evidence that PSOA results in increased susceptibility in in utero rodents.

v. There are no residual uncertainties identified in the exposure databases. EPA made conservative (health-protective) assumptions regarding dietary exposure to PSOA. This assessment will not underestimate the exposure and risks posed by PSOA.

EPA determines whether acute and chronic pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). The aPAD and cPAD represent the highest safe exposures, taking into account all appropriate SFs. EPA calculates the aPAD and cPAD by dividing the POD by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the POD to ensure that the MOE called for by the product of all applicable UFs is not exceeded.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, peroxy sulfonated oleic acids are not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to peroxy sulfonated oleic acids from food and water will utilize 18% of the cPAD for children 1-2 years old, the population group receiving the highest exposure. There are no residential uses for peroxy sulfonated oleic acids. Based on the explanation in Unit IIIC.3 residential use patterns, chronic residential exposure to residues of peroxy sulfonated oleic acids is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there are no residential uses, short-term residential exposures are not likely to occur, and no short-term adverse effect was identified therefore peroxy sulfonated oleic acids are not expected to pose a short-term aggregate risk.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there are no residential uses, intermediate-term residential exposures are not likely to occur, and peroxy sulfonated oleic acids are not expected to pose an intermediate-term aggregate risk.

5. Aggregate cancer risk for U.S. population. Based upon negative response for mutagenicity in a battery of genotoxicity tests, and lack of any structural alerts for carcinogenicity, peroxy sulfonated oleic acids are not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to peroxy sulfonated oleic acids residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of peroxy sulfonated oleic acids of in or on any food commodities. EPA is establishing a limitation on the amount of peroxy sulfonated oleic acids that may be used in pesticide formulations. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. EPA will not register any pesticide for sale or distribution for which the final end use concentration of peroxy sulfonated oleic acids in antimicrobial food contact surface sanitizing solutions would exceed 250 ppm.

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

The Codex has not established a MRL for peroxy sulfonated oleic acids.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for residues of 9-octadecenoic acid (9Z)-, sulfonated, oxidized (CAS Reg. No. 1315321-93-7); 9-octadecenoic acid (9Z)-, sulfonated, oxidized, potassium salts (CAS Reg. No. 1315321-94-8); and 9-octadecenoic acid (9Z)-, sulfonated, oxidized, sodium salts, (CAS No. 1315321-95-9) when used as an inert ingredient in antimicrobial pesticide formulations used on food contact surfaces in public eating places, dairy processing equipment and food processing equipment and utensils at a maximum end-use concentration not to exceed 250 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

This document announces that, on January 29, 2015, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Order, FCC 13-135, published at 78 FR 76218, December 17, 2013. The OMB Control Number is 3060-1186. The Commission publishes this document as an announcement of the effective date of paragraphs 66 and 67, of document WC Docket No. 13-39, FCC 13-135. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-620, 445 12th Street SW., Washington, DC 20554, or via email at: [email protected]. Please include the OMB Control Number, 3060-1186, in your correspondence. The Commission also will accept comments via email. Please send them to [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on January 29, 2015, for the information collection requirements contained in 64.2103, 64.2105, and 64.2107 of the Commission's Rules and the information collection in paragraph 67 of the Order.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1186.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1186.

OMB Approval Date: January 29, 2015.

OMB Expiration Date: January 31, 2018.

Title: Rural Call Completion Recordkeeping and Reporting Requirements.

Form Number: FCC Form 480.

Respondents: Businesses or other for-profit entities.

Number of Respondents and Responses: 225 respondents; 940 responses.

Estimated Time per Response: 12.5 hours (per quarter).

Frequency of Response: Quarterly and one-time reporting requirements and recordkeeping requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151, 154(i), 201(b), 202(a), 218, 220(a), 251(a), 403.

Total Annual Burden: 11,280 hours.

Total Annual Cost: $793,750.

Privacy Impact Assessment: No impact (s).

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information from individuals. If the FCC requests that respondents submit information which respondents believe is confidential, respondents may request confidential treatment of such information pursuant to Section 0.459 of the FCC's rules, 47 CFR 0.459.

Needs and Uses: On October 28, 2013, the Wireline Competition Bureau (Bureau) of the Federal Communications Commission adopted a Report and Order (Order), in WC Docket No. 13-39; FCC 13-135, 78 FR 76218, Rural Call Completion. Under the rules adopted by the Order, submission of Form 480 is mandatory for a “covered provider” as defined in 47 CFR 64.2101(c). A covered provider failing to file Form 480 in a timely fashion may be subject to penalties under the Communications Act, including sections 502 and 503(b). In the Order the Commission improves its ability to monitor problems with completing calls to rural areas, and enforce restrictions against blocking, choking, reducing, or restricting calls. The Order applies the new rules to “covered providers,” meaning providers of long-distance voice service that make the initial long-distance call path choice for more than 100,000 domestic retail subscriber lines, counting the total of all business and residential fixed subscriber lines and mobile phones and aggregated over all of the providers' affiliates. In most cases, this is the calling party's long-distance provider. Covered providers include LECs, interexchange carriers (IXCs), commercial mobile radio service (CMRS) providers, and VoIP service providers. These rules do not apply to intermediate providers. Covered providers must file quarterly reports and retain the call detail records for at least six calendar months. Long-distance voice service providers that have more than 100,000 domestic retail subscriber lines but that, for reasons set forth in paragraph 67 of the Order, are not required to file quarterly reports are required to file a one-time letter in WC Docket No. 13-39 explaining that they do not make the initial long-distance call path choice for more than 100,000 long-distance voice service subscriber lines and identifying the long-distance provider or providers to which they hand off their end-user customers' calls. The Order also allows qualifying providers to certify that they meet the conditions for a Safe Harbor that would reduce reporting and retention obligations. In addition, the Commission has delegated to the Bureau, in consultation with the Enforcement Bureau, the authority to act on requests from qualified providers for waiver of these rules. The Order also adopts a rule prohibiting all originating and intermediate providers from causing audible ringing to be sent to the caller before the terminating provider has signaled that the called party is being alerted.

In the near future, the Bureau will issue a public notice providing detailed instructions and announcing the deadline for the submission of data and providing further filing information.

The DTAR, which supplement the Federal Acquisition Regulation, are codified at 48 CFR Chapter 10. In order to update certain elements in 48 CFR part 10, the Department issued a proposed rule on December 23, 2014 (79 FR 76948) to solicit comments on certain editorial changes to the DTAR, which include updating Treasury bureau names and updating titles and dates, and other nonsubstantive revisions. This proposed rule also invited comments on removal of the Earned Value Management System provisions codified at section 1052.234-72. There is no longer a need for Treasury-specific coverage in this area.

The public comment period on the proposed rule closed on January 22, 2015. No comments were received. Accordingly, the Department is adopting the provisions of the proposed rule without change.

This rule is not a significant regulatory action as defined in section 3(f) of Executive Order 12866. Therefore a regulatory assessment is not required.

The Regulatory Flexibility Act (5 U.S.C. chapter 6) generally requires agencies to conduct an initial regulatory flexibility analysis and a final regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. Although the rule may affect a substantial number of small entities, the rule is limited to nonsubstantive, editorial changes to the DTAR, which are anticipated to have no economic impact. Therefore, a regulatory flexibility analysis is not required.

The information collections contained in this rule have been previously approved by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.) and assigned OMB control numbers 1505-0081; 1505-0080; and 1505-0107. Under the Paperwork Reduction Act, an agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a valid OMB control number.

Accordingly, the Department of the Treasury amends 48 CFR chapter 10 as follows: