Federal Register Vol. 80, No.69,

The CDFI Fund, Department of the Treasury, was established by the Community Development Banking and Financial Institutions Act of 1994, as amended (12 U.S.C. 4701 et seq.). The mission of the Community Development Financial Institutions Fund (CDFI Fund) is to increase economic opportunity and promote community development investments for underserved populations in distressed communities in the United States. Its long-term vision is to economically empower America's underserved and distressed communities. The CDFI Fund's programs are designed to facilitate the flow of lending and investment capital to distressed communities and to individuals who have been unable to take full advantage of the financial services industry. Access to credit, investment capital, and financial services are essential ingredients for creating and retaining jobs, developing affordable housing, revitalizing neighborhoods, unleashing the economic potential of small businesses, and empowering people.

An important component of the CDFI Fund's authority is the certification of entities as Community Development Financial Institutions (CDFIs), which permits such entities to have access to financial assistance through the Community Development Financial Institutions Program (CDFI Program) and other CDFI Fund programs, including the CDFI Bond Guarantee Program.

Through the CDFI Bond Guarantee Program, the Secretary of the Treasury provides a Guarantee for Bond(s) issued by a Qualified Issuer as part of a Bond Issue. In turn, the Qualified Issuer uses Bond Proceeds to make Bond Loans to Eligible CDFIs for Eligible Purposes, as those terms are defined in 12 CFR 1808.102. Under the CDFI Bond Guarantee Program, for a CDFI to be an Eligible CDFI, the CDFI must be certified by the CDFI Fund as meeting certification requirements (see 12 CFR 1808.202(a)).

In order for an entity to be certified as a CDFI, it must meet six criteria that are set forth in the regulation that governs CDFI certification: (i) Primary mission (12 CFR 1805.201(b)(1)); (ii) financing entity (12 CFR 1805.201(b)(2)); (iii) Target Market (12 CFR 1805.201(b)(3)); (iv) Development Services (12 CFR 1805.201(b)(4)); (v) accountability (12 CFR 1805.201(b)(5)); and (vi) non-government entity (12 CFR 1805.201(b)(6)).

The CDFI Fund is amending the CDFI certification regulation only with respect to the financing entity requirement and participation as an Eligible CDFI in the CDFI Bond Guarantee Program. This regulatory change creates a means for the CDFI Fund, in its discretion, to permit a CDFI's Affiliate (as defined in 12 CFR 1805.104(b)), which applies for CDFI certification, to rely on the Controlling CDFI's activity or track record in order to meet the financing entity requirement, solely for the purpose of the Affiliate participating as an Eligible CDFI under the CDFI Bond Guarantee Program.

In other words, this revised regulation states that, for purposes of participating in the CDFI Bond Guarantee Program, the Eligible CDFI, if it is an Affiliate of a CDFI, need not meet the financing entity requirement based on its own merit or activity but may instead rely on the financing entity track record of the affiliated CDFI. This regulatory revision affects only the Affiliate's ability to meet the financing entity requirement for CDFI certification: said entity must meet the other five certification criteria in accordance with the existing regulation.

Further, in this revised regulation, the CDFI Fund reserves the authority, in its discretion, to set additional parameters and restrictions on the financing entity requirement, which will be set forth in the Notice of Guarantee Availability (NOGA) for a particular application round of the CDFI Bond Guarantee Program. Such additional parameters or restrictions may include, for example, (i) a deadline by which the Affiliate must meet the financing entity requirement based on its own merit or activity, rather than relying on that of the affiliated CDFI, and (ii) a requirement that the affiliated CDFI must maintain its CDFI certification until such time that the Affiliate is able to meet all CDFI certification requirements based on its own merit or activity.

It has been determined that this rule is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required.

Because no notice of proposed rulemaking is required under the Administrative Procedure Act (5 U.S.C. 553) or any other law, the Regulatory Flexibility Act does not apply.

The collections of information contained in this interim rule have been previously reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 and assigned OMB Control Numbers 1559-0006, 1559-0021, and 1559-0022. 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 control number assigned by OMB. This document restates the collections of information without substantive change.

This revised interim rule has been reviewed in accordance with 12 CFR part 1815. The CDFI Fund's Environmental Regulations under the National Environmental Protection Act of 1969 (NEPA) require that the CDFI Fund adequately consider the cumulative impact proposed activities have upon the human environment. It is the determination of the CDFI Fund that the interim rule does not constitute a major federal action significantly affecting the quality of the human environment and, in accordance with the NEPA and the CDFI Fund Environmental Quality Regulations, 12 CFR part 1815, neither an Environmental Assessment nor an Environmental Impact Statement is required.

Because this interim rule relates to loans and grants, notice and public procedure and a delayed effective date are not required pursuant to the Administrative Procedure Act, 5 U.S.C. 553(a)(2).

For the reasons discussed in the preamble, the CDFI Fund is amending 12 CFR chapter XVII, part 1805 as follows:

NASA published a proposed rule in the Federal Register at 79 FR 60119, on October 6, 2014, to amend its patent waiver regulations to update citations to the United States Code, to clarify the requirements and procedures for petitioning for a patent waiver so they follow more closely the terms of the Space Act, and to add grounds for denial of a petition for waiver of foreign rights. No comments were submitted on the proposed rule.

The NASA Office of the General Counsel had no comments to consider. NASA has adopted the proposed rule as final with one additional section update. After the proposed rule was published, an outdated citation was found in § 1245.108 License to contractor. In paragraphs (b) and (c), 14 CFR 1245.2 was updated to 37 CFR part 404. Also, “Government-Owned” was substituted for “NASA” in paragraph (b), and “in accordance with applicable regulations in” was substituted for “under the Licensing of NASA Inventions” in order to clarify the sentence in paragraph (c).

No changes were made as a result of public comments.

No public comments were submitted.

NASA has determined this rulemaking meets the criteria for a direct final rule because it involves adopting a proposed rule amending its patent waivers regulations to update citations and the patent waiver policy, and to clarify and update the patent waiver procedures, so they are more in line with the National Aeronautics and Space Act (Space Act), the authorizing statute. This rule has one additional update to correct an outdated citation. No opposition to the changes and no significant adverse comments are expected. However, if NASA receives significant adverse comments, it will withdraw this direct final rule by publishing a notice in the Federal Register. A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, NASA will consider whether it warrants a substantive response in a notice and comment process.

This rule does not contain an information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866.

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule sets forth policies and procedures for submitting and reviewing petitions for waiver of the Government's rights to certain inventions made under government funded contracts, pursuant to section 20135(b)(1) of the National Aeronautics and Space Act, 51 U.S.C. 20135(b)(1). The provisions do not apply to inventions made under any contract, grant, or cooperative agreement with a nonprofit organization or small business firm that are afforded the disposition of rights as provided in 35 U.S.C. 200-204 (Pub. L. 96-517, 94 Stat. 3019, 3020, 3022 and 3023; and Pub. L. 98-620, 98 Stat. 3364-3367). Therefore, the rule will not have a significant economic impact on a substantial number of small entities.

Accordingly, 14 CFR part 1245 is amended as follows:

On Monday, December 15, 2014, the National Labor Relations Board issued a final rule in the above-captioned proceeding. This errata sheet makes the following corrections to the supplementary information preceding the amendatory language of the final rule:

1. On p. 74308:

In the second column, first full paragraph, line 17, correct “proceeding” to read “proceedings”.

2. On p. 74311:

In the third column, line 1, correct “51735” to read “3822”.

In the third column, lines 2-3, correct “[b]efore issuing a proposed regulation” to read “[b]efore issuing a notice of proposed rulemaking”.

In the third column, lines 13-14, correct “76 FR 36829” to read “76 FR 36817, n.34”.

3. On page 74332:

In the third column, second full paragraph, line 12, add “a” before “review”.

4. On page 74337:

In the first column, first full paragraph, line 49, add a period after “representation”.

In the second column, first full paragraph, line 13, correct “dissenting” to read “concurring in part, concurring in the judgment in part, and dissenting in part”, and in line 3 of the block quotation from Denver Area Telecommunications Consortium, Inc., correct “most” to read “more”.

5. On page 74346:

In the second column, first full paragraph, line 13, “practice” should be in internal quotation marks.

6. On page 74351:

In the second column, line 6, correct “employees' workplace” to read “employee”, and in line 7 remove “(emphasis added)”.

7. On page 74359:

In the third column, first full paragraph, line 11, correct “8(b)(a)” to read “8(b)(1)”.

8. On page 74372:

In the first column, second paragraph, line 4, delete “in any event”.

9. On page 74385:

In the third column, lines 19-20, correct “rules” to read “Rules” and correct “Procedures” to read “Procedure”.

10. On page 74391:

In the second column, line 6, correct “slip op. at 2” to read “slip op. at 1”.

In the second column, line 13, correct “petition” to read “proceeding”.

11. On page 74402:

In the second column, line 29, add an open quotation mark before “[a]rgument”.

12. On page 74423:

In the first column, in the continuation of footnote 513, line 10, add “slip op. at 10” after “No. 76”.

In the first column, in the continuation of footnote 513, line 13, add “slip op. at 8” after “No. 72”.

In the first column, in the continuation of footnote 513, line 14, correct “purposes” to read “purpose”.

13. On page 74432:

In the second column, line 16 of footnote 542, remove “National Labor Relations”.

14. On page 74433:

In the second column, line 9 of footnote 550, correct “102-103” to read “102”.

In the second column, line 9 of footnote 550, correct “[I]n” to read “In”.

15. On page 74440:

In the first column, line 6 of footnote 591, correct “processses” to read “processes”.

16. On page 74446:

In the third column, line 10 of footnote 623, correct “Hanover” to read “Hannover”.

17. On page 74452:

In the second column, first full paragraph, line 22, add “abstract” before “law”.

In the second column, first full paragraph, line 27, remove “s” from “communication”.

In the second column, first full paragraph, line 28, correct “Employer” to read “employer.”

In the second column, first full paragraph, line 30, correct “363-64” to read “364”.

18. On page 74460:

In the second column, first full paragraph, line 12, add quotation mark after “practice”.

19. On page 74461:

In the third column, second full paragraph, line 29, remove “proposed” before “rule”.

In the third column, second full paragraph, line 35, correct “5 U.S.C. 604(a)(4)” to read “5 U.S.C. 604(a)(5)”.

20. On p. 74465:

In the second column, first full paragraph, line 3, correct “2480” to read “2823” and correct “2,777” to read “2,974”.

In the second column, first full paragraph, lines 4 and 8, correct “89.3%” to read “94.9%”.

In the second column, first full paragraph, line 7, correct “2,239” to read “2,379”.

21. On p. 74467:

In the second column, first full paragraph, line 14, correct “29” to read “30”.

In the second column, line 4 of footnote 729, correct “29” to read “30”.

The Maryland Transportation Authority, who owns and operates this drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.557 to facilitate an interim structural inspection and an in-depth electrical/mechanical inspection.

Under the regular operating schedule, the I-695 Bridge draw must open on signal if at least one hour notice is given. The bridge has a vertical clearance in the closed position to vessels of 58 feet above mean high water.

Under this temporary deviation, the drawbridge will be maintained in the closed to navigation position daily between 8 a.m. and 5 p.m. but will be able to open for navigation with a 2 hour advance notice by contacting (410) 354-1374 or utilizing VHF Channel 13/16.

The bridge will operate under the normal operating schedule at all other times. Emergency openings can be provided with advance notice by contacting (410) 354-1374 or utilizing VHF Channel 13/16. There are no alternate routes for vessels transiting this section of the Curtis Creek.

Curtis Creek is used by a variety of vessels including military, tugs, 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. However, 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.

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking TFR Temporary Final Rule A. Public Participation and Comments

We encourage you to submit comments (or related material) on this temporary final rule. We will consider all submissions and may adjust our final action based on your comments. Comments should be marked with docket number USCG-2015-0137 and should provide a reason for each suggestion or recommendation. You should provide personal contact information so that we can contact you if we have questions regarding your comments; but please note that all comments will be posted to the online docket without change and that any personal information you include can be searchable online (see the Federal Register Privacy Act notice regarding our public dockets, 73 FR 3316, Jan. 17, 2008).

Mailed or hand-delivered comments should be in an unbound 81/2 x 11 inch format suitable for reproduction. The Docket Management Facility will acknowledge receipt of mailed comments if you enclose a stamped, self-addressed postcard or envelope with your submission.

Documents mentioned in this notice, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following the Web site's instructions. You can also view the docket at the Docket Management Facility (see the mailing address under ADDRESSES) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

The Coast Guard is issuing this temporary final rule safety zone for a planned fifteen minute air show over San Diego Bay 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)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable, because immediate action is needed to minimize potential danger to the participants and the public during the event. Furthermore, the necessary information to determine whether the marine event poses a threat to persons and vessels was provided March 12, 2015, less than 60 days before the event, which is insufficient time to publish an NPRM. The Coast Guard requests new marine event permit applications at least 165 days in advance for proper environmental and administrative review of the event.

Nevertheless, we are providing an opportunity for subsequent public comment and, should public comment show the need for modifications to the safety zone during the event, we may make those modifications during the event and will provide actual notice of those modifications to the affected public.

The legal basis and authorities for this temporary rule are found in 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to propose, establish, and define regulatory safety zones.

The Coast Guard believes a temporary safety zone is needed on the navigable waters of the San Diego Bay to ensure public safety for the NHA Red Bull Helicopter Demonstration. This event involves a planned fifteen minute air show which flies over a portion of San Diego Bay. Because aerial stunt flying over busy waterways poses significant risk to public safety and property and the likely combination of large numbers of recreation vessels, congested waterways, and low flying could easily result in serious injuries or fatalities, a safety zone is necessary to safe guard spectators, vessels and the event pilots. For the safety concerns noted, it is important to have these regulations in effect during the event and impracticable to delay the regulations.

The Coast Guard is establishing a temporary safety zone that will be enforced from 6:30 p.m. to 7:30 p.m. on May 12, 2015. This safety zone is necessary to provide for the safety of the helicopter aircrew, event spectators, safety patrol craft and to protect other vessels and users of the waterway. Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or their designated representative. Before the effective period, the Coast Guard will publish a local notice to mariners (LNM). Just prior to the event and during the enforcement of the event, the Coast Guard will issue a broadcast notice to mariners (BNM) alert via VHF Channel 16.

This temporary safety zone will be bound by the following coordinates (North American Datum of 1983, World Geodetic System, 1984): 32°43.05 N, 117°10.54 W, 32°43.05 N, 117°10.46 W, 32°43.33 N, 117°10.54 W, 32°43.33 N, 117°13.46 W.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and 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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This determination is based on the size, location and limited duration of the safety zone. This zone impacts a small designated area of the San Diego bay for less than one hour. Furthermore, vessel traffic can safely transit around the safety zone.

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. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of private and commercial vessels intending to transit or anchor in the impacted portion of the San Diego Bay from 6:30 p.m. through 7:30 p.m. on May 12, 2015.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Vessel traffic can pass safely around the zone. The Coast Guard will publish a local notice to mariners (LNM) and will issue broadcast notice to mariners (BNM) alerts via VHF Channel 16 before the safety zone is enforced.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 will not call for a 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 determined that this rule 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 INTFORMATION 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 will not cause 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 does not create an environmental risk to health or risk to safety that may disproportionately affect children.

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

This action is not 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 guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone on the navigable waters of San Diego Bay. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. 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 165 as follows:

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this temporary 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)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Specifically, the Coast Guard did not receive the final details for this event until March 4, 2015. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public and vessels from the hazards associated with the barge-based fireworks display on May 15, 2015, which are discussed further below.

The legal basis for this rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

On May 15, 2015, the Coast Guard anticipates that a tug and barge will be anchored in the vicinity of the Sturgeon Bay Yacht Harbor on the waters of Sturgeon Bay in Sturgeon Bay, Wisconsin for the purpose of launching a fireworks display. The Captain of the Port Lake Michigan has determined that this fireworks display will pose a significant risk to public safety and property. Such hazards include falling and/or flaming debris, and collisions among spectator vessels.

With the aforementioned hazards in mind, the Captain of the Port Lake Michigan has determined that this temporary safety zone is necessary to ensure the safety of persons and vessels during the barge-based fireworks display from the waters of Sturgeon Bay. This zone is effective from 8:30 p.m. on May 15, 2015, until 9:30 p.m. on May 16, 2015. This zone will be enforced from 8:30 p.m. until 9:30 p.m. on May 15, 2015. In the case that inclement weather forces a postponement of the fireworks display on May 15, 2015, this rule will be enforced from 8:30 p.m. until 9:30 p.m. on May 16, 2015. The safety zone will encompass all waters of Sturgeon Bay, in the vicinity of Sturgeon Bay Yacht Harbor, within the arc of a circle with a 420-foot radius from the fireworks launch site, located on a barge in approximate position 44°49.579′ N., 087°22.384′ W. (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or her designated on-scene representative. The Captain of the Port or her designated on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and 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 Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for only one day. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this temporary rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the affected portion of Sturgeon Bay on May 15 or May 16, 2015.

This safety zone will not have a significant economic impact on a substantial number of small entities for the reasons cited in the Regulatory Planning and Review section. Additionally, before the enforcement of this zone, we would issue local Broadcast Notice to Mariners so vessel owners and operators can plan accordingly.

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 section 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 will not call for a 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 determined that this rule 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 will not cause 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 does not create an environmental risk to health or risk to safety that may disproportionately affect children.

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

This action is not 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 guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. 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 parts 165 as follows:

I. Background

The District of Columbia, the State of Maryland, and the Commonwealth of Virginia submitted formal SIP revisions on June 12, 2007, June 4, 2007, and June 12, 2007, respectively (hereafter the June 2007 SIP revisions). These June 2007 SIP revisions were submitted to address CAA requirements for the 1997 ozone NAAQS and included the 2002 base year emissions inventory, the 15 percent reasonable further progress plan (RFP) (15% RFP plan), RFP contingency measures, an attainment demonstration to show attainment of the 1997 ozone NAAQS by June 15, 2010, a reasonably available control measures (RACM) analysis, and contingency measures for failure to attain. In addition, the submission included the transportation conformity 2008, 2009, and 2010 year MVEBs associated with the RFP plan, the attainment demonstration and contingency measures, respectively. The District of Columbia Department of the Environment (DDOE), the Maryland Department of the Environment (MDE), and the Virginia Department of Environmental Quality (VADEQ) (hereafter referred to as the three States) jointly developed the June 2007 SIP revisions.1

These elements of the Washington Area 8-hour ozone plan were required for the Washington Area by sections 172(c), 182(a), and 182(b)(1) of the CAA due to the classification of the Washington Area as a moderate ozone nonattainment area under the 1997 ozone NAAQS. The boundaries of the Washington Area are defined in the tables for “1997 8-Hour Ozone NAAQS (Primary and Secondary)” in 40 CFR 81.309, 81.321 and 81.347.2

On September 11, 2011 (76 FR 58116), EPA approved portions of the June 2007 SIP revisions for the three States including the 2002 base year emissions inventory, 15% RFP plan and associated MVEBs for 2008, RFP contingency measures, and the RACM analysis. In this rulemaking action, EPA is approving the remaining portions of the June 2007 SIP revisions for the 1997 ozone NAAQS including the attainment demonstration, the contingency measures, and the associated 2009 and 2010 year MVEBs.3 In a March 20, 2013 notice of proposed rulemaking (the March 20, 2013 NPR), EPA proposed to approve these remaining elements of the June 2007 SIP revisions. 78 FR 17161. The initial comment period closed on May 9, 2013 (78 FR 27160); however, EPA reopened the comment period until June 10, 2013. In this final rule, EPA is approving the portions of the June 2007 SIP revisions which we proposed for approval in the March 20, 2013 NPR: the attainment demonstration, contingency measures, and 2009 and 2010 year MVEBs.

The June 2007 SIP revisions addressed the attainment demonstration required under 40 CFR 51.908, contingency measures, and the associated 2009 and 2010 year MVEBs for the 1997 ozone NAAQS for the Washington Area. Specific requirements for CAA attainment demonstrations, contingency measures and MVEBs for the 1997 ozone NAAQS and the rationale for EPA's proposed action were explained in the NPR and will not be restated here.

Since the March 20, 2013 NPR, the three States have submitted and certified complete ambient air quality monitoring (AQ data) for the entire 2013 ozone monitoring season. EPA has released the final 2011-2013 design values and posted these at http://www.epa.gov/airtrends/values.html. The 2011-2013 design values show the Washington Area continues to attain the 1997 ozone NAAQS. Table 1 shows these design values for monitors in the Washington Area in parts per billion (ppb) ozone. These design values in Table 1 demonstrate that the Washington Area continues to meet the 1997 ozone NAAQS.

EPA has also examined available 2014 ozone season AQ data. EPA notes that this AQ data is preliminary. EPA examined the data entered into EPA's Air Quality System (AQS) available as of February 10, 2015. It has not undergone all the quality assurance/quality control review and certification necessary to be used for regulatory purposes, and as of February 10, 2015 may not cover the entire 2014 ozone season for the Washington Area which ended October 31, 2014. See Table D-3 “Ozone Monitoring Season by State” in appendix D to 40 CFR part 58.

The highest preliminary design value in the Washington Area for the 2012-2014 period is 76 ppb which is meeting the 1997 ozone NAAQS. Until the 2014 AQ data is quality assured and certified, this design value is preliminary and subject to change. However, the preliminary data indicates that the Washington Area continues to attain the 1997 ozone NAAQS. For the March 20, 2013 NPR, EPA prepared a technical support document (February 26, 2013 TSD) which is in the docket for this rulemaking and is available online at www.regulations.gov as document number EPA-R03-OAR-2013-0132-0006.

EPA has also prepared a supplement to the February 26, 2013 TSD, “Supplement to Technical Support Document for Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland and Virginia; Attainment Demonstration for the 1997 8-Hour Ozone National Ambient Air Quality Standard for the Washington, DC-MD-VA Moderate Nonattainment Area,” dated February 12, 2015 (TSD Supplement); 4 this TSD Supplement provides additional analysis of the 2013 and 2014 AQ data. The TSD Supplement and other documents concerning the 2013 and 2014 AQ data have been added to the docket for this action and are available online at www.regulations.gov at docket number EPA-R03-OAR-2013-0132.

EPA received comments adverse to the proposed approval of the attainment demonstration, MVEBs and contingency measures from the June 2007 SIP revisions. A summary of these adverse comments and EPA responses follows.

Comment: EPA received comments asserting that EPA must disapprove the attainment demonstrations in the June 2007 SIP revisions because the 2010-2012 AQ data demonstrates that the Washington Area is not attaining the 1997 ozone NAAQS. The commenter asserts that 40 CFR 51.112(a) provides that attainment demonstrations should be done with air quality modeling and with “data bases” such as EPA's ambient air quality monitoring database, AQS. The commenter concludes that the three States' attainment demonstration SIPs are therefore not adequate to attain and maintain the 1997 ozone NAAQS. The commenter cites Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 30-31 (1983) to support its claim that failure to consider the 2010-2012 AQ data would amount to a final rule that is arbitrary and capricious because “[T]he agency must . . . examine the relevant data and articulate a satisfactory explanation for its action.” Id. Finally, a commenter stated that the weight of evidence demonstration in EPA's March 20, 2013 NPR is not rational because 2010-2012 AQ data is more representative of real world conditions.

Response: EPA disagrees with the commenter's assertion that EPA must disapprove the attainment demonstrations submitted in June 2007 based upon the results of the 2010-2012 AQ data. EPA did in fact consider some air quality data beyond the 1997 ozone NAAQS June 15, 2010 attainment date. EPA considered 2009-2011 air quality data when proposing approval of the three States' June 2007 SIP revisions which are the subject of this rulemaking. See Table 2 “Modeled Predicted 2009 Design Values versus Actual Monitored Design Values” and Table 3 “Actual Monitored Design Values 2009 to 2011” in the February 26, 2013 TSD in the docket for this action (Docket ID#: EPA-R03-OAR-2013-0132). EPA examined the actual monitored ozone design values through 2011 while evaluating the three States' attainment demonstrations and concluded that the overall trend of ozone air quality in the Washington Area was improving. Because EPA concluded the trend was improving and because the Washington Area attained the 1997 ozone NAAQS by the attainment date of June 15, 2010, EPA determined that the 3 States' June 2007 SIP revisions adequately demonstrated attainment of the ozone standard by the attainment date and EPA proposed to approve the demonstrations. 78 FR at 17165. As discussed in Section III of this rulemaking action, EPA has examined ozone design values for the Washington Area for 2011-2013 and has examined preliminary monitoring data from 2014 which demonstrate the Washington Area continues to attain the 1997 ozone NAAQS and demonstrate the overall ozone design value trend is decreasing from 2003 to 2014. See also the TSD Supplement. Thus, EPA has considered relevant data and disagrees with the commenter that EPA must disapprove the attainment demonstrations from the June 2007 SIP revisions due to the 2010-2012 data for the Washington Area.

The CAA is very prescriptive in section 110(k)(3) concerning under what conditions EPA must approve a SIP revision: “[t]the Administrator shall approve such [SIP revision] submittal as a whole if it meets all of the applicable requirements of this chapter” (with emphasis added). As relevant to the moderate area attainment plan for the Washington Area, section 182(b)(1)(A)(i) requires that: “By no later than 3 years after November 15, 1990, the State shall submit a revision to the applicable implementation plan to . . . provide for such specific annual reductions in emissions of volatile organic compounds and oxides of nitrogen as necessary to attain the national primary ambient air quality standard for ozone by the attainment date applicable under this chapter.” (Emphasis added.)

The applicable attainment date for areas classified as moderate like the Washington Area for the 1997 ozone NAAQS was no later than June 15, 2010 pursuant to Table 1 of 40 CFR 51.903(a) (i.e., six years after the June 15, 2004 effective date of nonattainment designation for 8-hour NAAQS). See 69 FR 23858 (April 30, 2004). Application of 40 CFR 51.908(d) results in a de facto attainment date by the close of calendar year 2009, which included the last complete ozone monitoring season prior to June 15, 2010. See 69 FR at 23951 and 23989 (stating that the determination of attainment for an area with an attainment date in May 2010 would be based on AQ data from 2007, 2008 and 2009). CAA sections 172 and 182 require the SIPs for the Washington Area to demonstrate attainment with the 1997 ozone NAAQS but do not require the plan to address continued maintenance of the standard after the attainment date. That requirement is specified as a component of redesignation in CAA section 107(d)(3)(E) and is detailed in section 175A(a). Thus, a state is not required to develop a plan to maintain the standard until such time as it has air quality meeting the NAAQS and is seeking redesignation to attainment.

The attainment demonstrations submitted by the three States addressed all of the applicable requirements for such plans in CAA sections 172 and 182 as explained in the March 20, 2013 NPR. In addition, the Washington Area did in fact attain the 1997 ozone NAAQS by its attainment date of June 15, 2010. See 77 FR 11739 (February 28, 2012). A violation of the NAAQS for the period 2010-2012, which is after the attainment date, is not determinative of whether the plan was adequate for showing that the standard would be met by the attainment date, and EPA disagrees with the commenter that the SIP must be disapproved now on the basis of that data. Because EPA based approval of the attainment demonstrations partially on the overall improving ozone air quality trends in addition to the fact that the Area attained by its attainment date, EPA notes that the area continued to meet the 1997 ozone NAAQS based on its design value for 2008-2010, 2009-2011, and 2011-2013. Preliminary data from 2014 also indicate that it is likely that the Washington Area is meeting the 1997 ozone NAAQS for the period of 2012-2014. Thus, EPA disagrees that EPA must disapprove the June 2007 SIP revisions after considering the 2010-2012 data suggested by commenter because the Washington Area's attainment by the attainment date plus overall trend of attaining the 1997 ozone NAAQS supports approval.

Comment: EPA received comments asserting that EPA should exercise caution in approving the attainment demonstrations from the June 2007 SIP revisions because the ambient air quality monitoring data through 2012 indicated that air quality has degraded over time as indicated by ozone concentrations in the DC area having steadily increased over time. The commenters assert that such degradation is not consistent with the goal in the CAA of moving towards redesignation to attainment of the 1997 ozone NAAQS. The comments state that the worsening air quality for the Washington Area after 2009 for the 1997 ozone NAAQS casts doubt about the improvement in air quality through 2009 being due to permanent and enforceable reductions from the implementation of the applicable implementation plan and applicable Federal air pollutant control regulations which the commenter asserts is necessary for redesignation of the Washington Area to attainment for the 1997 ozone NAAQS pursuant to section 107 of the CAA.5 6 One commenter noted that the design value for the Washington Area rose as follows: 0.080 parts per million (ppm) for 2007 to 2009, 0.081 ppm for 2008 to 2010, 0.082 ppm for 2009 to 2011, and 0.087 ppm for 2010 to 2012.

Response: The attainment demonstration provisions of the Act do not require the state to demonstrate that the measures adopted to attain the standard will ensure continued maintenance of the NAAQS. Also, as the commenter notes in the comments, the issue of whether reductions are due to permanent and enforceable emission reductions is aligned with redesignation for a specific standard and with one of the redesignation criteria in section 107(d)(3)(E). EPA does note, however, that increased ambient ozone levels are not necessarily associated with the measures in the SIP not being permanent and enforceable. Rather, air quality is based on a complicated mix of factors that include, but go beyond the level of emissions. Other factors include air temperature, wind patterns, and emissions from upwind sources outside of the nonattainment area. For that reason, it is not unusual that an area's design value can vary year-to-year and that for some years it may be higher than for an earlier year. The design value did show a slight increase between the 2009 design value and the 2011 design value and then had a more significant jump for the 2012 design value. However, the 2013 design value was lower than that for 2012 and met the 1997 NAAQS and preliminary data indicates that the 2014 design value will also be lower than that for 2012 and will also meet the 1997 ozone NAAQS.

If the states choose to submit a request to redesignate the Washington Area, they will need to demonstrate that they have met the requirements of section 107(d)(3)(E), including the requirement that the improvements in air quality are due to permanent and enforceable reductions in emissions; however, as EPA has explained, that issue is not relevant for determining whether the area demonstrated that it would attain the 1997 NAAQS by the applicable attainment date.

Comment: Another commenter asserts that EPA cannot approve the attainment demonstrations from the June 2007 SIP revisions because neither the SIP submittals nor EPA provide any analysis pursuant to CAA section 110(l). Specifically, the commenters claim there is no analysis of whether or not EPA's approval of the attainment demonstrations for the 1997 ozone NAAQS will interfere with any applicable requirements regarding the 2008 ozone NAAQS and the 2010 nitrogen dioxide (NO2) NAAQS.7 The commenter claims because the attainment demonstrations in the June 2007 SIP revisions do not require any additional emission reductions, the attainment demonstrations may interfere with attaining the 2008 ozone NAAQS as expeditiously as practicable; 8 the commenter specifically asserts that requiring additional nitrogen oxide (NOX) emission reductions for the attainment demonstrations will result in more expeditious attainment of and in reasonable further progress for the 2008 ozone NAAQS and result in implementation of RACM. The commenter also asserts that EPA must conduct this analysis and provide the public with an opportunity to review and comment on this analysis.

Response: EPA disagrees that a CAA section 110(l) analysis is required for the purpose suggested by the commenter. Section 110(l) prohibits approval of a SIP revision “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . and any other applicable requirement of this chapter.” EPA notes that our approval of the June 2007 SIP revisions does not remove any SIP requirements nor reduce any requirements in the three States' SIPs. Thus, EPA disagrees that EPA cannot approve the 2007 SIP revisions without a section 110(l) analysis.

However, even though EPA believes a section 110(l) analysis is not required here as no applicable requirements are being removed or reduced, EPA does note that the volatile organic compounds (VOC) and NOX reductions achieved to attain the 1997 ozone NAAQS for the Washington Area will also provide benefits for attaining and/or maintaining the 2008 ozone NAAQS, and NOX reductions will provide benefits for attaining and/or maintaining the 2010 NO2 NAAQS. Thus, EPA finds our approval of the June 2007 SIP revisions will not interfere with the requirements applicable for those other two NAAQS. EPA also disagrees with the commenter's assertion that the three States' attainment demonstrations may interfere with attaining the 2008 ozone NAAQS as no additional NOX reductions are required because the pollutants reduced in the Washington Area in its attaining the 1997 ozone NAAQS are the same pollutants that need to be regulated for the 2008 ozone NAAQS.

The commenter does not make any specific claim regarding the analysis for the 2010 NO2 NAAQS, but rather simply asserts that a section 110(l) analysis was not done. EPA notes that no part of the Washington Area has been designated as nonattainment for the 2010 NO2 NAAQS. See 77 FR 9532 (February 17, 2012) and 40 CFR 81.309, 81.321 and 81.347. Therefore, no part of the Washington Area is subject to “Part D” planning requirements (such as sections 172(b), 172(c), 181 or 182) for the 2010 NO2 NAAQS because these “Part D” requirements apply only to SIPs required for nonattainment areas. EPA notes that the affected States have all made SIP submissions to address the applicable requirements in section 110(a)(1) and (2) for the 2010 NO2 NAAQS. The commenter does not suggest nor is EPA aware of anything in the attainment demonstration submissions for the 1997 ozone NAAQS that would undercut or undermine the requirements in the section 110 SIPs submitted for the 2010 NO2 NAAQS.

The commenter's claim regarding interference with the 2008 ozone NAAQS also ignores the structure of the statute. Under the CAA, EPA is required to periodically review and revise as necessary the NAAQS. When EPA revises a NAAQS, a planning cycle begins for that new NAAQS. EPA is first required to designate areas and, for those areas designated nonattainment, a time clock for submission of plans to address nonattainment begins at the time of designation. EPA designated areas for the 2008 ozone NAAQS effective June 2012, and nonattainment area SIPs for that standard are generally due in June 2015. The interpretation set forth by the commenter ignores that structure and instead suggests that once a new NAAQS is promulgated, the state must demonstrate any time it revises its SIP that such revisions will also fulfill requirements applicable for the new standard (e.g., demonstrate attainment, meet RACM). In other words, the commenter is reading section 110(l) to supersede the more prescriptive and descriptive provisions in Part D of title I of the CAA that govern nonattainment area planning. It is untenable to read that much detail and meaning into the word “interfere.” EPA's reasonable interpretation is that this provision means that a plan cannot undermine or impede applicable requirements for the same or other NAAQS.9 And, in this circumstance, the reductions relied on for attainment of the 1997 ozone NAAQS will not undermine or impede progress toward meeting the newer NAAQS because it regulates the same pollutants that need to be regulated for the 2008 ozone NAAQS and the 2010 NO2 NAAQS. Any further reductions needed for attaining the 2008 ozone NAAQS will be addressed through the attainment planning process provided in Part D of title I of the CAA for the 2008 ozone NAAQS.

Comment: Another commenter claims that because the air quality in the Washington Area does not meet either the 1997 and 2008 ozone NAAQS, one cost-effective and expeditious method to deal with this problem is to impose an emission limit of 0.07 pounds per million British thermal units (lb/mmbtu) on each coal-burning electric generating unit (EGU) and each coal fired unit at the Capitol Heat Plant in the Washington Area.10 The commenter claims such a limit is a reasonably available control measure and cited court decisions, EPA preamble text and other documents to support this conclusion.11 The commenter suggests various specifics related to such a limit such as applicability, prohibition of inter-unit averaging, averaging periods, compliance dates and other details. The commenter also suggested limits for “ammonia slip” because states need to assume that ammonia is a fine particulate matter (PM2.5) precursor.

Response: As an initial matter, EPA does not have authority under the CAA to condition approval of the attainment demonstrations in the 2007 June SIP revisions upon adoption of a specific measure such as the NOX limit suggested by the commenter for EGUs or any ammonia slip requirement. Under the cooperative federalism structure of the SIP program designed by Congress, the states have the authority to choose the measures needed for attainment of the NAAQS. See Train v. Natural Resources Defense Council, 421 U.S. 60, 79 (1975) (stating “so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation”); Union Electric Co. v. EPA, 427 U.S. 246, 269 (1976) (finding Congress via section 110 “plainly left to the states the power to determine which sources would be burdened by regulations and to what extent”). See also Virginia v. EPA, 108 F.3d 1397, 1407-08 (D.C. Cir. 1997) (stating EPA cannot question the wisdom of a state's choices of emission limitations for a SIP if the plan satisfies the standards of section 110(a)(2)).

The commenter appears to be claiming that the identified NOX control measures for EGUs and the Capitol Power Plant and an ammonia slip requirement must be adopted by the states in order to meet the RACM requirement in CAA section 172. Because EPA previously approved the States' RACM portions of the June 2007 SIP revisions on September 20, 2011 (76 FR 58116), this issue as raised now by the commenter has not been timely raised and no further response is necessary. However, EPA further notes that EPA's longstanding interpretation of the RACM requirement in CAA section 172 involves an evaluation of whether the measures will advance the attainment date by one year. See Sierra Club v. EPA, 314 F.3d 735, 744-745 (5th Cir. 2002) and Sierra Club v. EPA, 294 F.3d, 155, 162 (D.C. Cir. 2002). See also 57 FR 13498, 13560 (April 16, 1992); 44 FR 20372, 20374 (April 4, 1979). Notably, the attainment date for the Washington Area (June 15, 2010) has passed and the Area is in fact attaining the 1997 ozone NAAQS as mentioned previously. Thus, at this juncture, the NOX or ammonia control measures suggested by the commenter are not ones that could advance the attainment date of the Washington Area and would not qualify as RACM, even if EPA were evaluating RACM for the 1997 ozone NAAQS for the Area.

Comment: EPA received comments that assert EPA cannot approve the attainment demonstrations in the June 2007 SIP revisions because 40 CFR 51.112(a) provides that attainment demonstrations must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements. The commenters also claim that 40 CFR 51.908(d) further supports the claim that the attainment demonstration SIP must provide for maintenance as part of attainment demonstrations because it requires implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season. The commenters assert that the language of “no later than” does not allow for this requirement to stop after the attainment year ozone season, and the plain language of this regulation provides for control measures needed for attainment after the attainment year.

Response: For the reasons provided in the March 20, 2013 NPR and in this final rule, EPA has determined that the modeled attainment demonstration in the June 2007 SIP revisions and supporting analyses show that measures, rules and regulations contained in the June 2007 SIP revisions provide for timely attainment of the 1997 ozone NAAQS. EPA disagrees with the commenter that EPA cannot approve the attainment demonstrations because the demonstrations do not provide for maintenance of the 1997 ozone NAAQS. The regulatory provision cited by the commenter, 40 CFR 51.112(a), was first promulgated in 1986, prior to enactment of the CAA Amendments of 1990. This provision establishes broad principles applicable to “control strategy” SIPs and both attainment demonstrations and maintenance plans are types of control strategy SIPs. Under the CAA, as amended in 1990, those two SIPs are addressed separately in the Act, and the Act establishes separate timeframes for submission of those two SIPs. Specifically, maintenance SIPs are now specifically required under CAA section 175A as a prerequisite to redesignation of an area to attainment with the NAAQS under section 107(d)(3) of the CAA and thus are to be submitted after an area has attained the NAAQS. Thus, EPA applies 40 CFR 51.112(a) in the context of the control strategy SIP under review and consistent with the structure of the Act. For example, maintenance plans need not project timely attainment because an area must have actually attained a NAAQS before a maintenance plan can support a redesignation request under section 107(d)(3)(E). Similarly, as discussed in an earlier response to comment, attainment demonstrations are due several years after designation as nonattainment and are for the purpose of demonstrating how an area will attain the NAAQS “by” a specific date but are not required to address air quality after the attainment date. In other words, consistent with the structure of the Act, EPA does not read 40 CFR 51.112(a) to require an attainment demonstration to demonstrate maintenance of a NAAQS nor to require a maintenance plan to demonstrate attainment of the NAAQS.

The commenter's interpretation that 40 CFR 51.908(d) supports a requirement that attainment demonstrations must include a demonstration of maintenance of the NAAQS beyond the attainment date is also misplaced. The sole purpose of this regulatory provision was to make clear to states the date by which all measures relied on for purpose of demonstrating attainment must be in place. Specifically, they must be implemented by the beginning of the final ozone season before the attainment date. The provision says or implies nothing beyond that simple requirement. This is further supported by the discussion in the preamble to the final rule promulgating this provision to implement the 1997 ozone NAAQS in which EPA consistently spoke only of the analysis needed to demonstrate timely attainment of the ozone NAAQS requirements and never of any need to demonstrate “maintenance” of the ozone NAAQS. See 70 FR 71612, 71615, 71626-71627 (November 29, 2005) (“Phase 2” final rule for implementation of 1997 ozone NAAQS). EPA referenced sections 172(c), 182(b), and 182(c) as the applicable CAA provisions regarding attainment demonstrations for the 1997 ozone NAAQS and did not cite or discuss the maintenance plan provision in section 175A. Id.

Comment: EPA received comments asserting that the SIP for the Washington Area relies on CAIR to address the “transport” problem and note that CAIR was remanded after the June 2007 SIP revisions were submitted. The commenters assert that because reduction of transported emissions still depend on the remanded CAIR, key modeling assumptions made for the attainment demonstrations in the June 2007 SIP revisions are questionable. These comments assert that EPA's own modeling analysis for the Cross State Air Pollution Rule (CSAPR) indicates that transported pollution and ozone precursors from upwind jurisdictions play a significant role in the Washington region and that up to 75 percent of the ozone pollution in the Washington Area comes from states outside of the nonattainment area.12 These commenters state that the three States relied on emissions reductions in upwind states to meet the 1997 ozone NAAQS. The commenters state that despite attempts by EPA, the full benefits of a replacement rule have not been realized and state it is premature to approve the attainment demonstrations without a viable transport strategy in place. The comments conclude that the burden remains on EPA to persevere to replace CAIR so that further reductions are made to minimize contributions from upwind states. The comments suggested EPA could use CAA section 110(k)(5) to initiate a SIP call to merge addressing transport for the 1997 ozone NAAQS with addressing transport for the 2008 ozone NAAQS. The commenters conclude that EPA's proposed action to fully approve the attainment demonstrations from the June 2007 SIP revisions without sufficiently addressing transport should not proceed and that a partial approval should be granted at most of such things as the MVEBs.

Response: EPA disagrees with the commenters that it is premature to approve the attainment demonstrations from the June 2007 SIP revisions for the 1997 ozone NAAQS due to concerns raised by the commenters regarding CAIR and transport of pollution. CAIR, as relied on for purposes of the attainment demonstration (and as described in more detail below) was being implemented through the attainment date. As provided in our earlier responses to comments, attainment demonstrations are required to demonstrate that an area will attain the NAAQS “by” a specific date, and EPA does not review such SIPs to determine whether they will show continued maintenance of the NAAQS. EPA is unclear about what the commenters are suggesting regarding a SIP Call—i.e., whether they are suggesting that EPA issue a SIP Call for the SIPs for the Washington DC Area or whether they are make a broader suggestion that EPA issue a new SIP Call rule. In either case, the comment is not relevant to the present rule. The issue in this present rulemaking is whether EPA should approve specific SIP submissions pending before the Agency and not whether EPA should issue a SIP Call for the already-approved SIPs for the Washington DC area. Nor, does this rulemaking action purport to address the broader issue of whether EPA should issue a new “SIP Call” rule requiring upwind states to address transported pollution for any NAAQS.

Although not relevant for purposes of whether the attainment demonstration demonstrates attainment by the attainment date, EPA notes that EPA also disagrees with the characterization by the commenter that the transport rules are not reducing transported emissions. Despite the litigation regarding CAIR and CSAPR, the rules are providing a continuous mandate to states to address upwind transport as described in this response.

CAIR was promulgated May 12, 2005 (70 FR 25162) and required 28 states and the District of Columbia to adopt and submit revisions to their SIPs to eliminate sulfur dioxide (SO2) and NOX emissions from EGUs that contribute significantly to downwind nonattainment of the 1997 PM2.5 and ozone NAAQS. The three States developed their attainment demonstrations for the June 2007 SIP revisions after CAIR was promulgated and being implemented in Maryland, Virginia, and the District of Columbia. CAIR was remanded to EPA in 2008, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008), but it was not vacated and implementation of the program continued for most areas. EPA subsequently promulgated CSAPR to replace CAIR and address transport for the 1997 ozone NAAQS. 76 FR 48208 (August 8, 2011). Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR would have superseded the CAIR program. However, numerous parties filed petitions for review of CSAPR, and on December 30, 2011, the D.C. Circuit issued an order staying CSAPR pending resolution of the petitions and directing EPA to continue to administer CAIR. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011), Order at 2.

In 2012, the D.C. Circuit issued a decision in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), vacating CSAPR and ordering EPA to continue administering CAIR pending the promulgation of a valid replacement. On April 29, 2014, the Supreme Court reversed the D.C. Circuit's decision on CSAPR and remanded the case to the D.C. Circuit for further proceedings. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). After the Supreme Court decision, EPA filed a motion to lift the stay on CSAPR and asked the D.C. Circuit to toll CSAPR's compliance deadlines by three years, so that the Phase 1 emissions budgets apply in 2015 and 2016 (instead of 2012 and 2013), and the Phase 2 emissions budgets apply in 2017 and beyond (instead of 2014 and beyond). On October 23, 2014, the D.C. Circuit granted EPA's motion. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA issued an interim final rule to clarify how EPA will implement CSAPR consistent with the D.C. Circuit's order granting EPA's motion requesting lifting the stay and tolling the rule's deadlines. 79 FR 71663 (December 3, 2014) (interim final rulemaking).

Throughout the litigation described previously in this rulemaking action, EPA continued to implement CAIR which led to significant reductions in emissions of SO2 and NOX from EGUs. However, on December 31, 2014, EPA sunset CAIR's provisions, and implementation of CSAPR began on January 1, 2015 in accordance with our interim final rule. 79 FR 71663. Now that implementation of CSAPR has begun, the emission reductions in SO2 and NOX from implementation of CAIR at EGUs will continue through CSAPR implementation. See 76 FR 48208.

Comment: One commenter asserts that EPA has changed its position on whether or not EPA could approve the attainment demonstrations from the June 2007 SIP revisions for the Washington Area as well as other ozone nonattainment areas under the 1997 ozone NAAQS. The commenter claims that at one time EPA stated that it could not approve the attainment demonstration portions of the June 2007 SIP revisions because the modeling was based on CAIR; the commenter links the uncertainty about CAIR to doubts about assurances that the 1997 ozone NAAQS would be attained. The commenter asserts that EPA's proposed approval relies upon the same modeling which continues to be based on CAIR (which was remanded to EPA) and claims the change in policy seems to be based on ambient air quality monitoring data which allowed EPA to declare that the Washington Area attained the 1997 ozone NAAQS. The commenter claims EPA should not approve an attainment demonstration that relies on modeling which was based in part on CAIR.

Response: As explained previously in response to a prior comment, EPA sunset its implementation of CAIR on December 31, 2014 and is now implementing CSAPR pursuant to the Supreme Court's upholding of CSAPR as a means to address transport of pollution for the 1997 ozone NAAQS, pursuant to the D.C. Circuit's lifting the stay on CSAPR, and pursuant to our interim final rule which provided clarification that CSAPR would be implemented as of January 1, 2015. During the litigation in the D.C. Circuit over CAIR and CSAPR, EPA continued to review and evaluate SIPs such as the June 2007 SIP revisions in accordance with CAA requirements. EPA disagrees that it “changed its position” on the approvability of the attainment demonstrations from the June 2007 SIP revisions. During the pendency of litigation concerning CAIR and CSAPR, EPA merely exercised caution in reviewing data which relied upon CAIR, and EPA proposed approval of the June 2007 SIP revisions when EPA concluded reliance upon data related to CAIR was appropriate given the litigation in the D.C. Circuit. However, as mentioned previously, EPA continued to implement CAIR during the litigation in the D.C. Circuit, and emission reductions of SO2 and NOX from EGUs occurred through CAIR. The States appropriately relied on CAIR and CAIR emission reductions in the June 2007 SIP revisions. EPA believes that continued and further reductions will occur with CSAPR. While the air quality data for the Washington Area has changed and improved generally over time, the air quality data presently indicates the Washington Area is attaining the 1997 ozone NAAQS and the Washington Area did attain by its attainment date of June 15, 2010 when EPA was implementing CAIR.

As explained in the March 20, 2013 NPR, in the February 26, 2013 TSD, in the TSD Supplement, and in response to prior comments, EPA based our decision to approve the attainment demonstrations upon the fact that the Washington Area did in fact attain the 1997 ozone NAAQS by the required June 15, 2010 attainment date and upon our evaluation that the Area continues to attain the 1997 ozone NAAQS. EPA believes the attainment demonstrations are in accordance with CAA requirements in sections 172 and 182 and believes the improving air quality data supports our decision to approve these attainment demonstrations for the 1997 ozone NAAQS. Thus, for the reasons detailed in the March 20, 2013 NPR and in this rulemaking action, EPA finds the attainment demonstration in accordance with CAA requirements, and EPA disagrees with commenters that any concerns with CAIR prevent our approval of these attainment demonstrations.

Comment: One commenter noted that although speedy approval of SIPs is desirable, at this juncture, approval of the attainment demonstrations from the June 2007 SIP revisions sends the wrong message to states and the public. The commenter claims that approval will not force state actions to address the 1997 and 2008 ozone NAAQS and therefore will result in continuation of unhealthy air for citizens of the Washington Area.

Response: EPA disagrees with the commenter that action on the SIP “sends the wrong message” to the public. Under the CAA, states are required to develop plans for each NAAQS and EPA is required to act on such submittals. Thus, to the extent the commenter is suggesting that EPA not act on the submission, such inaction is not allowed under the CAA. See CAA section 110(k)(1)-(3). The commenter's claim that action on an attainment SIP for the 1997 NAAQS will not force action by the state on a SIP for the 2008 NAAQS or will “continue” unhealthy air is misguided. The 2008 ozone NAAQS is a separate NAAQS with a separate statutory schedule for state adoption and submission of SIPs. EPA's action on a SIP required to address the 1997 ozone NAAQS has no effect on the obligation of the state to adopt rules and plans to meet the 2008 ozone NAAQS. In addition, SIPs for the 2008 ozone NAAQS are not yet due. Although, the attainment SIP for the 1997 ozone NAAQS is not intended to demonstrate how the state will meet the tighter 2008 ozone NAAQS, the reductions achieved by the attainment SIP will also provide benefits for that newer 2008 ozone standard.

Comment: One commenter asserted that if the proposed 2008 SIP Requirements Rule moves forward as currently written and the 1997 ozone NAAQS is entirely revoked, EPA could consider a process similar to that conducted during transition from the 1-hour standard to the 1997 8-hour standard. Under such process, the Washington Area's “moderate” area requirements under the 1997 standard could be continued under the 2008 standard, at least until the region is designated “attainment” for the 1997 standard, as suggested in CAA section 172(e).

Response: This comment addresses the substance of a separate rule for implementing the 2008 ozone NAAQS and is not related to whether EPA should approve the attainment demonstration addressed in this action rulemaking. EPA will address in the final action on that separate rule concerning implementation of the 2008 ozone NAAQS, the issue of how long the requirements applicable for the 1997 NAAQS remain in place as areas transition to implementation of the 2008 ozone NAAQS.

Comment: Several commenters noted that because of the determination of attainment by the attainment date and clean data determination for the Washington Area issued on February 28, 2012, EPA will not have to reclassify the Washington Area under the 1997 ozone NAAQS and that the three States are not required to submit any planning SIPs related to attainment of the 1997 ozone NAAQS standard unless a violation of the standard occurs. The commenters assert that violation of the 1997 ozone NAAQS has occurred and called for action by EPA. These commenters asserted that section 110(k)(5) requires EPA to issue a SIP call because the attainment demonstrations in the June 2007 SIP revisions are inadequate to maintain the 1997 ozone NAAQS in the Washington Area. EPA received other comments that suggested EPA merge the SIP call requirement in section 110(k)(5) under the 1997 ozone NAAQS with requirements under the 2008 ozone NAAQS. One commenter asserted that in addition to section 110(k)(5), EPA could use section 110(k)(6) to correct prior actions when EPA finds a previously approved SIP inadequate. One commenter speculated that EPA has not moved with an action under section 110(k)(5) perhaps because the area has been designated nonattainment for the 2008 ozone standard.

Response: The comments do not address EPA's action on the attainment demonstration, but instead suggest that EPA take additional rulemaking pursuant to CAA section 110(k)(5) or 110(k)(6) and thus are outside the scope of this rulemaking action. EPA notes that although the 2012 design value was violating the 1997 ozone NAAQS, the area is attaining that NAAQS based on the 2013 design value and preliminary data from 2014 indicates that it is continuing to meet the 1997 ozone NAAQS.

Comment: EPA received comments claiming that EPA should promptly revoke the determination of attainment EPA issued for the Washington Area on February 28, 2012 (77 FR 11739) based on the 2010 to 2012 air quality data showing a violation of the 1997 ozone NAAQS.

Response: The comments do not address this action on the attainment demonstration, but instead suggest that EPA take additional rulemaking action to revoke our prior clean data determination for the Washington Area; thus the comments are outside the scope of this rulemaking action. As discussed previously, EPA notes that based on air quality data from 2011 to 2013 and on preliminary data from 2012 to 2014, the Washington Area is attaining the 1997 ozone NAAQS and thus currently has clean data for the 1997 ozone NAAQS.

Comment: EPA received comments claiming that EPA explained in its proposed approval of the Washington Area attainment demonstrations from the June 2007 SIP revisions that the actual monitored values from the attainment year confirm the model over-predicted ozone concentrations by 0.002 ppm (2 ppb) and also claiming that the actual design values upon which EPA based these findings of model over-prediction are from years that are not representative of the same kind of meteorology chosen for the modeling. The commenter claims that the attainment year period was cooler and wetter and would be expected to generate less ozone. The commenter asserts that the design values for the Washington Area have increased for four straight years now that data from 2009 is not included in the design value calculation. The commenter notes that the most recent air quality data indicates the model-predicted ozone values are just as likely to be correct rather than an over-prediction. In addition, the commenter notes that EPA also cited a descending trend in ozone values as weight of evidence that the modeling over-predicts ozone for the region. Now that design values no longer include 2009 ozone season data, the commenter claims design value trends are increasing and do not show continued attainment of the 1997 ozone NAAQS. These comments conclude that EPA must disapprove the attainment demonstration based on the current values.

Response: As EPA has explained previously, the issue for approving the attainment demonstration is not whether the area has continued to maintain the NAAQS several years following the attainment date, but rather whether the modeled attainment demonstration demonstrated that the area would attain by its attainment date. For the reasons provided in the proposed rule and this final rule, EPA has determined that the attainment demonstrations in the June 2007 SIP revisions show attainment by the Area's attainment date of June 15, 2010. Furthermore, monitored attainment, including the 2009 design value, support that the Washington Area attained the standard by its attainment date.

EPA notes that in the March 20, 2013 NPR, EPA stated that the modeling conducted by the three States for the June 2008 SIP revisions over predicted 2009 ozone design values relative to the actual monitored 2009 to 2011 design values for most cases and always for four monitors for which the modeled design values were in the range of 82 to 87 ppb. See 78 FR at 17164. EPA also stated in the March 20, 2013 NPR that the modeling in the three States' June 2007 SIP revisions over predicted 2009 predicted design values when compared to actual monitored design values since 2009. Id. EPA compared the modeled design values to the actual design values based upon air quality data in Table 2, “Modeled Predicted 2009 Design Values versus Actual Monitored Design Values” in the February 26, 2013 TSD. This comparison showed that the actual attainment year design values were below the model predicted values, but more significantly were below the 1997 ozone NAAQS of 84 ppb.13

At the time EPA issued the March 20, 2013 NPR, EPA did not have certified 2012 or 2013 data. When EPA proposed in 2013 to approve the attainment demonstrations in the June 2007 SIP revisions, EPA considered the overall downward trend in monitored ozone air quality in the Washington Area and that the Area attained the 1997 ozone NAAQS by the attainment date applicable under section 181 of the CAA. While the 2010-2012 air quality design value does show an increase over the design values EPA previously considered, EPA continues to believe the air quality data for the Washington Area supports our approval of the June 2007 SIP revisions as the 2011-2013 AQ data (and the 2012-2014 AQ data based upon the preliminary 2014 data) shows the Washington Area is attaining the 1997 ozone NAAQS.

EPA agrees with the commenters that weather plays an important role in ozone formation. However, EPA believes that these considerations do not require EPA to disapprove the attainment demonstrations in the June 2007 SIP revisions. None of the design values predicted in the modeling from the three States in the June 2007 SIP revisions were above 87 ppb. Therefore, as explained in the February 26, 2013 TSD, a weight of evidence demonstration could be considered and was considered by EPA. The three States presented downward trends in design values (through 2006 as the States submitted the SIP in 2007), in numbers of exceedances, in nitrogen dioxide and carbon monoxide levels, and in emissions levels, as well as a decrease in the spatial extent of nonattainment in the Washington area and a decrease in the number of days the 1997 ozone NAAQS was exceeded when the maximum temperature exceeded 90 degrees Fahrenheit. For the proposed approval in the March 20, 2013 NPR, EPA also considered monitored ozone design values for years after 2006 which declined from an area-wide maximum 91 ppb for the 2004-2006 period to 80 ppb for the 2007-2009 (the effective applicable attainment period). At best, EPA believes that a modeled attainment demonstration with a supporting weight of evidence demonstration is a prediction about future events. For attainment demonstrations, EPA has recommended using model predictions in a relative rather than absolute sense and using weight of evidence to lessen the problems posed by less than ideal model performance on individual days by anchoring the future predicted concentrations to real ambient values and to address associated uncertainties in model results and projections.14 In addition, EPA believes that the form of the 1997 8-hour ozone NAAQS necessitates such an attainment test.15

In general, EPA does not consider the monitored ambient air quality data for periods after the attainment date to be particularly dispositive when acting on an attainment demonstration due under section 182(b). As explained previously in response to prior comments, EPA must approve a SIP submission such as an attainment SIP if the SIP submission meets applicable requirements in CAA sections 172 and 182. If an area does attain by its applicable attainment date, EPA has no authority to reclassify the area even if the area subsequently violates the ozone NAAQS.16 EPA believes this evinces a preference for actual air quality results over modeled predictions, and we believe that EPA must place great weight upon monitored attainment by the statutorily required attainment date when evaluating an attainment demonstration for compliance with CAA requirements.

As noted in response to other comments, EPA believes that an attainment demonstration required under sections 172 and 182(b) need not demonstrate maintenance of the ozone NAAQS after the applicable attainment date and need only demonstrate timely attainment by the attainment date. While the commenters raise concerns for maintenance of the 1997 ozone NAAQS based on the 2010-2012 design value for the Washington Area, the 2011-2013 design values (and preliminary data for 2012-2014) show attainment with the 1997 ozone NAAQS as mentioned previously. EPA did not in the March 20, 2013 NPR propose any sort of finding regarding sufficiency of any state's SIP with regards to maintenance of the 1997 ozone NAAQS in the Washington Area. In addition, maintenance of the 1997 ozone NAAQS is not a requirement for our approval of an attainment SIP required by CAA sections 172 and 182 as discussed previously in response to a prior comment and will be addressed in a separate SIP if the Washington Area seeks redesignation.

Finally, EPA believes that section 110(k)(5) provides a separate remedy, outside the scope of this rulemaking action, via a “SIP call” which provides the necessary authority to require remedial action through additional measures for a SIP where an ozone nonattainment area attains the ozone NAAQS by the applicable attainment date under section 181 but later violates that ozone NAAQS. See 64 FR 70205, 70206 (December 16, 1999) (final SIP call rule for Birmingham, Alabama marginal 1-hour ozone nonattainment area to address inadequacy of a SIP) and 79 FR 27830, 27832 (May 15, 2014) (proposed SIP call for the New York-New Jersey-Long Island moderate 1997 8-hour ozone nonattainment area).

Comment: EPA received a comment that it is arbitrary and capricious for the attainment demonstration modeling to only model for design values at monitoring stations. The commenter states that the whole metropolitan DC area is designated nonattainment, not just the tiny area covered by the monitoring stations. The commenter states that the NAAQS apply everywhere and that people are located throughout the Washington Area, not just at the monitoring stations. The commenter claims the model is capable of having a receptor grid that provides design values for the entire Washington Area and that by looking at design values at the monitoring station, EPA is deliberately ignoring an important aspect of the problem, that is whether the SIP provides people throughout the Washington Area with air that contains ozone below the health-based limit in the NAAQS.

Response: EPA disagrees with the comment that it was arbitrary and capricious for the attainment demonstration modeling to only model for design values at monitoring stations and not for the entire Washington Area. The three States' attainment demonstration modeling was in accordance with EPA's 2007 Modeling Guidance for Ozone, PM2.5, and Regional Haze and considered appropriate data. As an initial matter, the performance of the air quality model used in a SIP submission can only be assessed by comparison of the model predicted ozone concentrations for the baseline year in the vicinity of any air quality monitors in place with the actual monitored ozone concentrations recorded at air quality monitors in place during the baseline year. EPA's 2007 Modeling Guidance for Ozone, PM2.5, and Regional Haze in section 2.0 provides for using the modeling results in a relative sense, that is, the ratio, called a “relative response factor” (RRF), of the model's future to current (baseline) predictions at monitors is used to determine if attainment is predicted.17 In section 2.4 of that guidance, EPA explained its reasons for using the models in a relative sense. These RRFs are used to estimate concentrations at existing monitoring sites by multiplying a modeled RRF at locations “near” each monitor by the observation-based, monitor-specific, “baseline” design value. The resulting predicted “future concentrations” are compared to the NAAQS as part of the modeled attainment test and attainment demonstration.

While the 2007 Modeling Guidance for Ozone, PM2.5, and Regional Haze recommends a test, the “unmonitored area analysis,” which provides estimates of future year values in unmonitored areas, the guidance notes this test is particularly needed in nonattainment areas where the ozone monitoring network just meets or minimally exceeds the size of the network required to report data to AQS. EPA asserts that the Washington Area's monitoring network is not such a network.

The air quality monitoring network in the Washington Area far exceeds the minimum required under 40 CFR part 58. The Washington Area is part of the larger Washington-Arlington-Alexandria (DC-VA-MD-WV) Metropolitan Statistical Area (MSA) (known as the Washington-A-A MSA). Under Table D-2 of appendix D of 40 CFR part 58, the absolute minimum monitoring network for the Washington-A-A MSA based upon its population would be 3 ozone monitors, but the Washington-A-A MSA in fact contains 15 ozone monitors of which 13 are in the designated nonattainment area. Consistent with the factors found in section 4.1(b) of appendix D of 40 CFR part 58, the additional monitors in the Washington Area are located based on a variety of reasons such as providing for more than one maximum concentration site within the MSA, characterizing population exposure, and addressing factors including geographic size, population density, and complexity of terrain and meteorology in the MSA as well as air pollution transport.18 Given the extensive size and coverage of the Washington Area monitoring network and the factors considered for the size of the network, EPA disagrees with the comment that it was arbitrary and capricious for the attainment demonstration modeling to only model for design values at monitoring stations and not consider the entire Washington Area. The three States' attainment demonstration modeling considered appropriate data from monitors in the Washington Area, which EPA reviewed in accordance with the 2007 Modeling Guidance for Ozone, PM2.5, and Regional Haze. EPA has explained in the March 20, 2013 NPR and in this rulemaking that the June 2007 SIP revisions including the attainment demonstration modeling meet CAA requirements for attainment plans in sections 172 and 182.

Comment: EPA received comments that it is arbitrary and capricious to approve the attainment demonstrations in the June 2007 SIP revisions because, the commenter claims, the Area actually attained because of the “recession” or weather. A commenter also stated that recent 2010 and 2012 AQ data shows that 2009 was perhaps an “outlier year” with regards to ozone formation and that the attainment demonstration must model 2012 meteorological conditions (and not 2002 conditions), or model even warmer meteorological conditions to demonstrate that the emission limits and other nonattainment SIP provisions will attain the NAAQS. The commenter also stated that the attainment demonstration must consider climate change.

Response: EPA disagrees that these comments provide a basis to disapprove the attainment demonstrations in the June 2007 SIP revisions. The overarching concerns that seem to be raised by the commenter are that meteorology less conducive to ozone formation in 2009 resulted in attainment and that the attainment demonstration did not adequately account for meteorological variability.19

First, meteorological variability is addressed in the form of the 1997 ozone NAAQS. In choosing the form of the 1997 ozone NAAQS as the 3-year average of the fourth highest daily maximum 8-hour average ozone concentration, the EPA Administrator adopted the Clean Air Scientific Advisory Committee's recommendation that “a more robust, concentration-based form would minimize . . . instability and provide some insulation from the impacts of extreme meteorological events that are conducive to [ozone] formation.” See 62 FR 38856, 38868 (July 18, 1997). The form of the 1997 ozone NAAQS is intended to minimize the effect of not only those years with more extreme meteorological events conducive to ozone formation but also those years with more meteorological events not conducive to ozone formation. Thus, EPA does not agree that meteorological conditions for any one year are the basis for an area meeting or not meeting the NAAQS.

Second, EPA notes that as an adjunct to the modeled attainment demonstration, the three States did assess for the June 2007 SIP revisions the potential effects of meteorological variations on the results of the modeled attainment test. The future year model-predicted ozone design value was determined by the three States by multiplying a baseline ozone design value derived from ambient air quality monitoring by the model-derived RRF.20 21 This future year model-predicted ozone design value therefore directly depends upon the value of the baseline design value. The three States assessed the performance of air quality modeling by inputting meteorological data such as wind patterns and temperatures for 2002 and relevant emissions for 2002 and comparing the results to the actual monitored ozone concentrations for each day modeled.

EPA believes that, in practice, the choice of the “baseline design value” can be critical to the determination of the estimated future year design values. EPA's 2007 Modeling Guidance for Ozone, PM2.5, and Regional Haze noted several possible methods for computing a baseline design value and recommended using the average of the three design values for three successive three-year periods which include the baseline inventory year, which was 2002 for the Washington Area. According to information in the June 2007 SIP revisions, the three States were concerned that weighting the 2002 concentrations three times in the calculation could place too much (or too little) weight on that individual year's meteorology and would not necessarily reflect climate variability which has a significant impact on future design value projections. The three States used two additional methods for computing a baseline design value in order to assess the effect on future design value projections. These computations and the resulting future model-predicted attainment year design values are discussed in section 10.5.9 “Alternative Design Value Calculation Techniques” of the three States' 2007 attainment demonstration plan document dated May 23, 2007 (hereafter the May 23, 2007 plan document) and Section III. C. “Weight of Evidence Demonstration” and Appendix A of the February 26, 2013 TSD.22 For most, but not all, monitoring sites, a baseline design value computed as the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration over the period 2001 to 2003 produced the highest baseline design value for each monitor and therefore the highest future year model-predicted design value.23 24 By considering these alternate baseline design values, the three States assessed meteorological variability as reflected in ozone design values or other averaged annual fourth-highest daily maximum 8-hour average ozone concentrations that included monitoring data for the 2002 baseline modeling year.

Thus, EPA concludes the three States considered meteorological variability in conducting its attainment demonstrations, and we assessed the three States' modeling when reviewing and proposing to approve the June 2007 SIP revisions because the revisions meet CAA requirements. EPA therefore disagrees with the commenter that our approval of the attainment demonstrations is arbitrary or capricious because attainment of the 1997 ozone NAAQS may have occurred due to influences from meteorological variability not otherwise addressed by the standard and the attainment demonstrations.25

Furthermore, to the extent the commenters are suggesting that the modeled attainment demonstration is defective because it was based on 2002 meteorological conditions and not those from 2009 or a later year, EPA disagrees. Congress set explicit deadlines for submission of the attainment demonstration SIP due under section 182(b)(1), and the attainment demonstrations for the 1997 ozone NAAQS were required to be submitted by June 15, 2007. Thus, it was not feasible nor possible for the states to use meteorological conditions from future years for purposes of the attainment demonstration.

The States' choice of 2002 meteorological conditions was inherently reasonable and is well supported in Chapter 10 and Appendix G of the three States' May 23, 2007 plan document.26 EPA designated nonattainment areas for the 1997 ozone NAAQS generally using 2001 to 2003 AQ data. See 69 FR 23858 (April 30, 2004).27 Thus, the 2002 meteorological data represented meteorological conditions contemporaneous with the data used to designate and classify the Washington Area under the 1997 ozone NAAQS. Moreover, the 2007 attainment demonstration was based upon modeling the entire 2002 ozone season. For that reason alone, it was reasonable for the States to rely on the meteorological data for the same year.

However, the States supported their selection of 2002 meteorology based upon a qualitative analysis and a quantitative analysis.28 The quantitative analysis analyzed the entire Ozone Transport Region (OTR) and considered ozone and meteorological data for a seven year period (1997-2003) to capture the full range of OTR ozone episode characteristics and to insure statistical significance of the recent episode characteristics.29 The qualitative analysis describes each 2002 high ozone episode in terms of the weather patterns (movement of warm or cold fronts, air movement patterns—speed and direction of wind), cloud cover, temperature patterns, and locations of higher and lower ozone concentrations for each episode day. The analysis of regional ozone episode conditions over the OTR concluded that regional ozone episode conditions can be reasonably well described by a set of five different episode types each associated with a unique set of distinguishing characteristics. Data from the 2002 ozone season were analyzed within the framework of the five identified episode types with respect to frequencies of occurrence of each type and characteristics of the ozone and meteorological conditions within each type in 2002. The analysis noted one difference between 2002 and the other years in that the frequency of exceedances of the 1997 ozone NAAQS at one or more monitoring sites within the OTR occurred more frequently than the average of the other years, namely 1997-2001 plus 2003. There were 71 exceedance days during the May-September season in 2002 as compared to an average of 55 days per season during these other years. This analysis concluded that while ozone exceedances were more frequent during 2002, this higher than average exceedance rate in 2002 is by itself not an indication of any lack of representativeness of the 2002 exceedance events. In addition, not only did the 2002 ozone season have more days during which the 1997 ozone NAAQS was exceeded, but the fourth highest daily maximum values for the ozone monitors were higher during the 2002 ozone season than in any of the years 2000 through 2004, inclusive. In this time period, monitored fourth highest daily maximum concentrations exceeded 100 ppb (0.100 ppm) only during 2002. Such values over 100 ppb were recorded at nine of 17 monitors then in operation.30 Such values of the fourth highest daily maximum concentrations have not been recorded since.31 EPA finds the States' use of data from 2002 reasonable, well documented and supported. In contrast, the commenter has provided no support for the allegation that our approval of the attainment demonstrations is arbitrary or capricious based on the three States' use of 2002 data for the attainment demonstration instead of a subsequent year.

To the extent the commenters are suggesting that the States must remodel using meteorological conditions for years long after the 2007 submittal date (and after the attainment date), EPA notes that is neither mandated by the statute nor reasonable. Congress imposed deadlines on the States that clearly envisioned an end to the preparation of the attainment demonstration and did not establish any requirement for states to submit new, revised attainment demonstrations in the absence of a call from EPA pursuant to CAA section 110(k)(6) to do so or to submit a new attainment demonstration for a new, future attainment date based on a failure to attain by the attainment date.32

EPA is approving the attainment demonstrations, contingency measures, and associated 2009 and 2010 year MVEBs for the Washington Area which were submitted to EPA as SIP revisions by the three States in the June 2007 SIP revisions based on a determination that they meet applicable requirements in the CAA.

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 approved SIP, 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 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 June 9, 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 attainment demonstrations, contingency measures, and associated 2009 and 2010 year MVEBs for the Washington Area for the 1997 ozone NAAQS may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

• The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

• The initials ADEQ mean or refer to the Arizona Department of Environmental Quality.

• The initials AEPCO mean or refer to Arizona Electric Power Cooperative.

• The words Arizona and State mean the State of Arizona.

• The initials BART mean or refer to Best Available Retrofit Technology.

• The initials CEMS mean or refer to a continuous emissions monitoring system.

• The term Class I area refers to a mandatory Class I Federal area.

• The words EPA, we, us, or our mean or refer to the United States Environmental Protection Agency.

• The initials FIP mean or refer to Federal Implementation Plan.

• The initials GT1 mean or refer to Gas Turbine Unit 1.

• The initials IWAQM mean or refer to Interagency Workgroup on Air Quality Modeling.

• The initials LNB mean or refer to low-NOX burners.

• The initials MMBtu mean or refer to million British thermal units

• The initials NO X mean or refer to nitrogen oxides.

• The initials PM 10 mean or refer to particulate matter with an aerodynamic diameter of less than 10 micrometers.

• The initials RHR mean or refer to EPA's Regional Haze Rule.

• The initials SNCR mean or refer to Selective Non-Catalytic Reduction.

• The initials SIP mean or refer to State Implementation Plan.

• The initials SO 2 mean or refer to sulfur dioxide.

• The initials ST1 mean or refer to Steam Unit 1.

• The initials ST2 mean or refer to Steam Unit 2.

• The initials ST3 mean or refer to Steam Unit 3.

On September 19, 2014, EPA proposed to approve a revision to the Arizona Regional Haze SIP concerning Apache Generating Station (“Apache SIP Revision”).1 As described in the proposal, the Apache SIP Revision consists of two components: a BART alternative for ST2 and ST3 (“Apache BART Alternative”) and a revised NOX emission limit for ST1 and GT1 when operated in combined-cycle mode. The Apache BART Alternative was submitted pursuant to provisions of the RHR that allow states to adopt alternative measures in lieu of source-specific BART controls, if they can demonstrate that the alternative measures provide greater reasonable progress towards natural visibility conditions than BART.2 Under the Apache BART Alternative, ST2 would be converted from a primarily coal-fired unit to a unit that combusts pipeline-quality natural gas, while ST3 would remain as a coal-fired unit and would be retrofitted with SNCR. Emission limits to implement the Apache BART Alternative and the revised limit for ST1 and GT1, as well as associated compliance deadlines and monitoring, recordkeeping, and reporting requirements, are incorporated into an addendum to Apache's Operating Permit, which was submitted as part of the Apache SIP Revision.3 We proposed to approve each of these components because we proposed to determine that they complied with the relevant requirements of the CAA and EPA's implementing regulations. In particular, we proposed to find that the Apache BART Alternative would provide greater reasonable progress towards natural visibility conditions than BART.4 We also proposed to withdraw the provisions of the Arizona Regional Haze FIP that apply to Apache and to find that withdrawal of the FIP would constitute our action on AEPCO's Petition for Reconsideration of the FIP.

EPA's proposed action provided a 45-day public comment period. During this period, we received a comment letter from Earthjustice on behalf of National Parks Conservation Association and Sierra Club (collectively, the “Conservation Organizations”). The comments and our responses are summarized below.

Comment: The Conservation Organizations asserted that the Apache BART Alternative fails the first prong of the test set forth at 40 CFR 51.308(e)(3) because it would result in greater total emissions than EPA's BART FIP. They also noted that there appeared to be confusion over whether the “distribution of emissions” under the Apache BART Alternative and EPA's BART FIP are different. In addition, they urged EPA to clarify that “even if a BART alternative applies to the same facility as the underlying BART determination, the distribution of emissions is not the same if NOX, SO2, PM, and other visibility-impairing pollutants will be emitted in different amounts or different proportions.”

Response: We agree that, compared with BART, the Apache BART Alternative is expected to result in greater total emissions than EPA's BART FIP. In particular, the Alternative would result in greater NOX emissions, but lower emissions of SO2 and PM10. In this situation, where BART and the BART Alternative result in reduced emissions of one pollutant but increased emissions of another, it is not appropriate to use the “greater emissions reductions” test under 40 CFR 51.308(e)(3). As explained below, Arizona chose not to apply the “greater emission reductions” test, but instead to employ a clear weight-of-evidence approach under 40 CFR 51.308(e)(2) in order to demonstrate that the alternative achieves greater reasonable progress than BART.

Comment: The Conservation Organizations asserted that the modeling underlying the Apache BART Alternative does not accurately reflect emissions under the Apache BART Alternative or BART. In particular, the commenters noted that the modeling results provided in EPA's proposal were based on AEPCO's petition for reconsideration from May 2013, but the emissions projections summarized in EPA's proposal differed from those in AEPCO's petition. Therefore, the Conservation Organizations asserted that the modeling EPA used to support its approval of the Apache BART Alternative does not accurately reflect visibility benefits of the alternative compared to BART.

Response: We agree with the commenter that the total annual emission projections summarized in Table 5 of our proposal differ from those reflected in AEPCO's May 2013 petition for reconsideration. However we do not agree that this difference affects the visibility modeling underlying the Apache BART Alternative because the modeling is based on projected maximum short-term (24-hour) emission rates, whereas the differences in annual emission projections are due to different assumptions concerning long-term heat rates and capacity factors. In particular, we note that the emission reduction projections included in AEPCO's May 2013 petition for reconsideration and shown in Table 1.6 of the SIP are based on maximum heat rates and conservative annual capacity factors and therefore represent conservative (high-end) emissions projections.5 By contrast, the emission reductions shown in Table 5 of our proposal and Table 6 of the SIP Technical Support Document are calculated based on 2008-2010 continuous emissions monitoring system (CEMS) heat rates and annual average days of operation. Accordingly, they reflect lower annual emission projections, both for BART and the BART Alternative.

These differing assumptions concerning annual heat rates and capacity factors do not influence the visibility modeling, which is based on maximum 24-hour average emission rates.6 In calculating the emission rates for modeling, AEPCO followed the approach set forth in the BART Guidelines, which provide that post-control 24-hour emission rates should be calculated as a percentage of pre-control 24-hour emission rates.7 We find ADEQ's approach to calculating modeled emission rates is consistent with BART Guidelines and provides a sound technical basis to compare the expected visibility improvement from the BART Alternative to the expected improvement from BART.

Comment: The Conservation Organizations commented that the modeling underlying the Apache BART Alternative reflects an emission rate for Unit 2 (0.225 lbs/MMBtu) that is lower than the permitted emission limit for the unit (0.23 lbs/MMBtu) and therefore overestimates the Apache BART Alternative's visibility benefits relative to BART.

Response: AEPCO's petition for reconsideration included modeling for several different control scenarios.8 In the Apache SIP Revision, ADEQ focused on control scenario 9bv2 PNGt, which included a NOX emission rate of 0.225 lb/MMBtu for ST3, reflecting use of SNCR. As noted by the commenter, this 0.225 lb/MMBtu emission rate is lower than the permitted NOX emission limit for ST3 9 of 0.23 lb/MMBtu. However, contrary to the commenter's assertion this difference does not result in an overestimation of the visibility benefits of the Apache BART Alternative. Rather, the difference reflects the fact that, under the BART Guidelines, emission rates for BART modeling are calculated in a different manner than BART emission limits.10 In particular, the BART Guidelines recommend that modeling be performed using an average 24-hour emission rate,11 excluding periods of startup and shutdown.12 By contrast, emission limits for EGUs are established based on 30-day rolling averages and must be met on a continuous basis, including during periods of startup, shutdown, and malfunction.13

In this case, the SNCR system on ST3 will not be capable of operating during portions of startup and shutdown periods.14 Therefore, the emission rate for startup and shutdown periods will be higher than 0.225 lb/MMBtu, the value that corresponds entirely to SNCR operation. Over a period of 30 days, the emissions from these periods of time could cause the 30-day average emission rate to exceed 0.225 lb/MMBtu. Accordingly, ADEQ set a 30-day emission rate of 0.23 lb/MMBtu to account for the emissions from startup and shutdown periods. The upward revision from 0.225 lb/MMBtu to 0.23 lb/MMBtu represents a difference of approximately two percent. We consider this degree of upward revision reasonable to account for startup and shutdown periods.

Furthermore, as explained by ADEQ in its response to comments from the Conservation Organizations, one of the other scenarios modeled by AEPCO and included in its May 2013 petition, a scenario known as 9b PNGt, used more conservative emission factors.15 In particular, 9b PNGt included a NOX emission factor of 0.230 lb/MMBtu for ST3, which is equivalent to the emission limit for this unit in the Apache SIP Revision. In its response to comments, ADEQ compared the results of this modeling run to the baseline results and the BART case. ADEQ found that the Apache BART Alternative (as represented by 9b PNGt) would result in improved visibility at all affected Class I areas compared to the baseline and would result in improved visibility, on average, across all affected Class I areas compared with BART.16 Thus, the results of 9b PNGt confirm ADEQ's determination that the Apache BART Alternative would achieve greater reasonable progress than BART.

Comment: The Conservation Organizations noted that the modeling cited in EPA's proposal shows that visibility at two Class I areas—the Gila and Mt. Baldy Wilderness Areas—will be worse under the BART Alternative compared to BART. The commenters asserted that EPA should update its modeling to correct the alleged flaws identified by the commenters and confirm whether the BART Alternative will in fact result in less visibility improvement at these two Class I areas. They argued that “EPA's failure to consider measures to improve visibility at every Class I area impacted by Apache is contrary to the intent of the regional haze regulations.”

Response: We agree that modeling indicates that visibility at two Class I areas—the Gila and Mt. Baldy Wilderness Areas—will be slightly worse under the BART Alternative compared to BART. However, this does not preclude approval of the Apache BART Alternative because, as explained in our proposal, the BART Alternative will result in improved visibility at all affected Class I areas compared with baseline conditions 17 and will result in improved visibility, on average, across all Class I Areas, compared with BART. As EPA explained in the preamble to the final BART Alternative Rule:

Comment: The Conservation Organizations argued that EPA's modeling is flawed because it only considered visibility impacts at Class I areas within 300 kilometers (km) of Apache. Citing a recent evaluation of CALPUFF by EPA,19 they commented that “the model is more accurate at farther distances than previously assumed.” Therefore, they asserted that EPA should have considered Apache's visibility impacts at a radius of 500 km.

Response: We do not agree that we should have considered visibility impacts at Class I areas greater than 300 km from Apache. The report cited by the Conservation Organizations does not support the regulatory use of CALPUFF beyond 300 km, nor does it refute the 1998 Interagency Workgroup on Air Quality Modeling (IWAQM) Phase 2 report, which states that “use of CALPUFF for characterizing transport beyond 200 to 300 km should be done cautiously with an awareness of the likely problems involved.” 20 Consistent with this recommendation, our BART analysis in the Arizona Regional Haze FIP evaluated visibility impacts and improvements at the nine Class I areas within 300 km of Apache.21 It was reasonable for ADEQ and EPA to consider these same Class I areas when assessing the Apache BART Alternative.

Comment: Citing the preambles to EPA's proposed and final revisions to the RHR concerning BART alternatives, the Conservation Organizations asserted that the weight-of-evidence alternative to the two-part test is generally appropriate only when a state cannot conduct the two-part test, or when the state has significant confidence that a BART alternative will have greater visibility benefits than BART. They argued that Arizona's weight-of-evidence approach was inappropriate here because the state had sufficient data to conduct the two-part test and “could not have had confidence that the alternative would result in superior visibility benefits.”

Response: We do not agree with this comment. Nothing in the RHR or in the preamble language cited by the commenters indicates that the weight-of-evidence test is appropriate only when a state cannot conduct the two-part test, or when the state has significant confidence that a BART alternative will have greater visibility benefits than BART. In the preamble to the 2006 final revisions to the RHR, EPA explained that we were adopting a weight of evidence test “as an alternative to the methodology set forth in section 51.308(e)(3).” 22 EPA described the factors that could be considered as part of such test and suggested specific circumstances where a weight of evidence comparison “may be warranted.” 23 However, EPA did not indicate that these were the only circumstances in which this approach could be employed.

In this instance, ADEQ found that the two-prong test as described in 40 CFR 51.308(e)(3) was not appropriate and therefore chose to apply the clear weight of evidence test. Nonetheless, as explained in our proposal, we applied a modified version of the two-prong test, using the 98th percentile impacts (averaged across three years), rather than the best twenty-percent days and worst twenty-percent days, as provided for in 40 CFR 51.308(e)(3).24 The Apache BART Alternative meets both prongs of this modified test, which strongly supports the conclusion that the Apache BART Alternative would achieve greater reasonable progress than BART.

Comment: The Conservation Organizations asserted that the Apache BART Alternative could be improved to achieve additional emissions reductions. In particular, the commenters suggested that EPA could require AEPCO to install SNCR at ST2 and switch ST3 to gas, rather than switching ST2 to gas and installing SNCR at ST3. They also encouraged EPA to consider capacity limitations or other operational limits to improve the alternative.

Response: We do not agree that we can amend the Apache BART Alternative to provide greater emission reductions. Under the CAA, if EPA determines that a SIP meets the requirements of the CAA and EPA's implementing regulations, we are obligated to approve the SIP.25 For the reasons described in our proposal and elsewhere in this document, we have determined that the Apache SIP revision meets the applicable requirements of the CAA and EPA's regulations, and we are therefore required to approve it.

As explained in our proposal and this document, we have determined that the Apache SIP Revision would provide for greater reasonable progress toward natural visibility conditions than BART. We have also determined that the Apache SIP Revision meets all other requirements of the CAA and EPA's implementing regulations with one exception: the Apache Permit Revision incorporates by reference certain state regulations that establish an affirmative defense for malfunctions (R-18-2-101, paragraph 65; R18-2-310, sections (A), (B), (D) and (E); and R18-2-310.01).26 In a letter dated February 19, 2015, ADEQ requested that EPA not act on these provisions of the Apache SIP Revision at this time.27 Accordingly, we are taking final action to approve the Apache SIP Revision except for the affirmative defense provisions contained in the Apache Permit Revision. We are also taking final action to revise the Arizona Regional Haze FIP to remove those portions that apply to Apache. The withdrawal of the FIP, as it applies to Apache, also constitutes our final action on AEPCO's petition for reconsideration of the FIP.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the ADEQ permit revision described in the 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).

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This rule applies to only one facility and is therefore not a rule of general applicability.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

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

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Firms primarily engaged in the generation, transmission, and/or distribution of electric energy for sale are small if, including affiliates, the total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. AEPCO sold under 3 million megawatt hours in 2013 and is therefore a small entity.

After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The approval of the SIP, if finalized, merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985). The FIP withdrawal would alleviate economic impacts on AEPCO and therefore would not have a significant adverse impact on any small entity.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.

This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule does not impose regulatory requirements on any government entity.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or in the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

Under Executive Order 13175 (65 FR 67249, November 9, 2000), EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.

This rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. 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.

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

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12 (10) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by the VCS bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when the Agency decides not to use available and applicable VCS.

EPA believes that VCS are inapplicable to this action. This action does not require the public to perform activities conducive to the use of VCS.

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

EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population, at a lower cost than the FIP.

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. Section 804 exempts from section 801 the following types of rules: (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability that only applies to a single named facility.

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 June 9, 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. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

In addition, pursuant to section 307(d)(1)(B) and (V) of the CAA, the Administrator determines that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to certain rulemaking actions under the CAA. Pursuant to CAA section 307(d)(1)(B), the withdrawal of the provisions of the Arizona Regional Haze FIP that apply to Apache is subject to the requirements of CAA section 307(d), as it constitutes a revision to a FIP under CAA section 110(c). Furthermore, CAA section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” The Administrator determines that the SIP approval portion of this action is also subject to 307(d). While the Administrator did not explicitly make this determination earlier, all of the procedural requirements, e.g., docketing, hearing and comment periods, of section 307(d) have been complied with during the course of this rulemaking.

Part 52, chapter I, title 40 of the Code of Federal Regulations 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-2013-0756 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 June 9, 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-2013-0756, 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 21, 2014 (79 FR 9870) (FRL-9904-98), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10630) by Exponent, 1150 Connecticut Ave. NW., Washington, DC 20036 on behalf of Clariant Corporation, 4000 Monroe Rd., Charlotte, NC 28205. The petition requested that 40 CFR 180.920 be amended by establishing an exemption from the requirement of a tolerance for residues of two inert ingredients, collectively referred to as secondary alkane (C13-C17) sulfonates (SAS): Sulfonic acids, C13-17-sec-alkane, sodium salts (CAS Reg. No. 85711-69-9) and sulfonic acids, C14-17-sec-alkane, sodium salts (CAS Reg. No. 97489-15-1) when used as surfactants in pesticide formulations applied to growing crops. That document referenced a summary of the petition prepared by Exponent, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA is limiting the tolerance exemption to pesticide formulations in which the maximum concentration of the secondary alkane sulfonates is 40% by weight. This limitation is based on the Agency's risk assessment which can be found at http://www.regulations.gov in document “Secondary Alkane (C13-C17) Sulfonates (SAS); Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as an Inert Ingredient in Pre-harvest Pesticide Products Under 40 CFR 180.920” in docket ID number EPA-HQ-OPP-2013-0756.

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 secondary alkane (C13-C17) sulfonates including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with secondary alkane (C13-C17) sulfonates 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 secondary alkane (C13-C17) sulfonates (also referred to as SAS) as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

The Agency relied on data on CAS Reg. No. 85711-69-9 (sulfonic acids (C13-C17 secondary alkane) to assess both inert ingredients. Bridging data in this manner is appropriate because CAS Reg. No. 97489-15-1 (sulfonic acids, C14-C17 secondary alkane) has an alkyl carbon chain length that falls within the carbon chain length range of CAS Reg. No. 85711-69-9 (sulfonic acids, C13-C17 secondary alkane) and toxic effects attributable to the C14-C17 secondary alkane sulfonate would be observed in toxicity testing of the C13-C17 secondary alkane sulfonate.

The acute oral lethal dose (LD50) for SAS in rats is >500 milligram/kilogram (mg/kg). The acute dermal LD50 in mice is >200 mg/kg. Secondary alkane (C13-C17) sulfonate is not a dermal irritant based on primary skin irritation study in rabbits and it is not a dermal sensitizer in guinea pigs.

A chronic toxicity study was conducted on SAS in rats and demonstrated a NOAEL of 4,000 parts per million (ppm) (equivalent to 168 milligram/kilogram body weight/day (mg/kg bw/day) in males and 227 mg/kg bw/day in females), and a LOAEL of 20,000 ppm (equivalent to 920 mg/kg bw/day in males and 1,281 mg/kg bw/day in females) based on reduced body weight, body weight gain, and the clinical signs of reduced grooming in males and females.

In a 2-generation reproduction study in rats dosed with SAS, there was no indication that offspring were more susceptible than the parental adults. The parental systemic LOAEL was 3,000 ppm (equivalent to 177 mg/kg bw/day in males and 181 mg/kg bw/day in females), based on decreased body weight gain during premating and on reduced organ weight. The parental NOAEL was 1,000 ppm (equivalent to 58.2 mg/kg bw/day for males and 66 mg/kg bw/day for females). The offspring LOAEL was 3,000 ppm (equivalent to 177 mg/kg bw/day) based on decreased pre- and post-implantation loss and decreased weight gain in offspring. The offspring NOAEL was 1,000 ppm (equivalent to 58.2 mg/kg bw/day).

Secondary alkane (C13-C17) sulfonates were not mutagenic when tested in the in vitro mammalian cell gene mutation assay and in the Salmonella typhimurium reverse mutation assay.

In a combined oral (dietary) chronic toxicity/carcinogenicity study of SAS in rats, there were no treatment-related neoplastic or non-neoplastic microscopic findings observed up to 2.0% (equivalent to 805 mg/kg bw/day in males and 1,032 mg/kg bw/day in females), the highest dose tested. A LOAEL was not identified. Although body weight of high-dose males and females were lower by about 20% relative to controls throughout most of the study, decreased body weight was not viewed as an adverse effect since higher survival rates were observed in this group compared to controls.

In a dermal carcinogenicity study of SAS in mice, no indication of increased incidence relative to controls of malignant neoplasms was observed. No LOAEL was demonstrated. The NOAEL was 1.0% (equivalent to 0.6 mg/treatment), the highest concentration applied to the skin.

Secondary alkane (C13-C17) sulfonates are rapidly absorbed and excreted in the urine and feces. Secondary alkane (C13-C17) sulfonates have a low potential for dermal absorption based on a dermal penetration study in rats.

Although no immunotoxicity or neurotoxicity studies on SAS were available in the database, no evidence of immunotoxicity or neurotoxicity was observed in the submitted 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 the NOAEL and the LOAEL are identified. Uncertainty/safety factors (UF) 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 secondary alkane (C13-C17) sulfonates used for human risk assessment is shown in Table 1 of this unit.

The 2-generation reproductive toxicity study in rats was selected for oral, dietary, dermal, and inhalation exposure scenarios (all durations) for this risk assessment. The parental systemic NOAEL in this study was 1,000 ppm (equivalent to 58.2 mg/kg bw/day for males) based on reduced body weight gain during premating and on reduced organ weight seen at the LOAEL of 3,000 ppm (equivalent to 177 mg/kg bw/day). The rationale for selecting this study for the dietary, dermal, and inhalation exposure scenario is based on the fact that this study provided the lowest and most conservative toxicity endpoint and route-specific studies are available.

A default 100% inhalation absorption will be used for inhalation exposure scenarios. A 50% dermal absorption rate will be used for dermal exposure scenarios based on the toxicokinetic dermal absorption study.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to secondary alkane (C13-C17) sulfonates, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from secondary alkane (C13-C17) sulfonates in food as follows:

i. Acute Exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide chemical, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for SAS; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. The chronic dietary exposure assessment for this inert ingredient utilizes the Dietary Exposure Evaluation Model Food Commodity Intake Database (DEEM-FCID), Version 3.16, EPA, which includes food consumption information from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, “What We Eat In America”, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. In the absence of actual residue data, the inert ingredient evaluation is based on a highly conservative model which assumes that the residue level of the inert ingredient would be no higher than the highest established tolerance for an active ingredient on a given commodity. Implicit in this assumption is that there would be similar rates of degradation between the active and inert ingredient (if any) and that the concentration of inert ingredient in the scenarios leading to these highest of tolerances would be no higher than the concentration of the active ingredient. The model assumes 100 percent crop treated (PCT) for all crops and that every food eaten by a person each day has tolerance-level residues. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

iii Cancer. Based on the data summarized in Unit III.A., EPA has concluded that SAS does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for secondary alkane (C13-C17) sulfonates, a conservative drinking water concentration value of 100 parts per billion (ppb) based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

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

Based on the use pattern for pesticide products containing SAS as an inert ingredient, there are no residential uses and thus no residential exposures are expected.

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 secondary alkane (C13-C17) sulfonates to share a common mechanism of toxicity with any other substances, and secondary alkane (C13-C17) sulfonates do not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that secondary alkane (C13-C17) sulfonates 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 Food Quality Protection Act Safety Factor (FQPA 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. In a 2-generation reproduction toxicity study, there was no evidence of susceptibility of infants and children to SAS. In this study, the offspring and parental toxicity NOAEL was 1,000 ppm (equivalent to 58.2 mg/kg bw/day) based decreased pre- and post-implantation loss and decreased weight gain in offspring and decreased body weight gain during premating and on reduced organ weight in parental animals seen at the LOAEL was 3,000 ppm (equivalent to 177 mg/kg bw/day).

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 secondary alkane (C13-C17) sulfonates includes a subchronic toxicity study, a 2-generation reproduction study, chronic/carcinogenicity studies, several mutagenicity studies, and two toxicokinetic studies. The Agency concludes that for this ingredient, the results of these studies provide a reliable basis for assessing the range of potential effects to infants and children, such that the Agency has determined that no additional data are necessary at this time to evaluate effects to infants and children.

ii. There is no indication that SAS 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 evidence of increased susceptibility due to pre-or post-natal exposure to SAS in infants and children.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 percent crop treated (PCT) and tolerance-level residues. EPA made conservative (protective) assumptions utilizing a 100 ppb default value in the ground and surface water modeling used to assess exposure to secondary alkane (C13-C17) sulfonates in drinking water. These assessments will not underestimate the exposure and risks posed by secondary alkane (C13-C17) sulfonates.

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. 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, therefore, an acute dietary exposure assessment was not conducted.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to SAS from food and water will utilize 97.1% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure.

3. Short-term and intermediate-term risk. Short-term and intermediate-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). A short-term/intermediate-term adverse effect was identified; however, SAS is not used as inert ingredient in any pesticide product registered for any use patterns that would result in short-term or intermediate-term residential exposure. Because there is no short-term or intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for SAS.

4. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two rodent carcinogenicity studies, secondary alkane (C13-C17) sulfonates are not expected to pose a cancer risk to humans.

5. 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 secondary alkane (C13-C17) sulfonates residues.

Although EPA is establishing a limitation on the amount of SAS that may be used in pesticide formulations, an analytical enforcement methodology is not necessary for this exemption. The 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 use on growing crops with concentrations of SAS exceeding 40% by weight of the formulation.

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 secondary alkane (C13-C17) sulfonates.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.920 for sulfonic acids, C13-17-sec-alkane, sodium salts (CAS Reg. No. 85711-69-9) and sulfonic acids, C14-17-sec-alkane, sodium salts (CAS Reg. No. 97489-15-1) when used as inert ingredients (surfactant) in pesticide formulations applied to growing crops at not more than 40% by weight of the pesticide formulation.

This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). 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 exemption 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 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-2013-0798 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 June 9, 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-2013-0798, 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 10458) (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 3E8216) by IR-4, 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide pyraclostrobin, carbamic acid, [2-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenyl]methoxy-, methyl ester and its desmethoxy metabolite (methyl-N-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenylcarbamate) (BF 500-3), expressed as parent compound, in or on herb, subgroup 19A at 85 ppm; and dill, seed at 100 ppm and by changing the existing entries for “fruit, stone, group 12” at 2.5 ppm to “fruit, stone, group 12-12” at 2.5 ppm; and “nut, tree, group 14” at 0.04 ppm to “nut, tree, group 14-12, except pistachio” at 0.04 ppm. That document referenced a summary of the petition prepared by BASF, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has modified the levels at which tolerances are being established for some commodities. The reason for these changes is explained in Unit IV.C.

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 pyraclostrobin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with pyraclostrobin 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.

There are no concerns for reproductive susceptibility, neurotoxicity, mutagenicity, genotoxicity, or immunotoxicity. The most consistently observed effects resulting from pyraclostrobin exposure across species, genders, and treatment durations were diarrhea and decreased body weight, body weight gain, and food consumption. Pyraclostrobin also causes intestinal disturbances, as indicated by increased incidence of diarrhea or duodenum mucosal thickening. These intestinal effects appeared to be related to the irritating action on the mucus membranes as demonstrated by irritation seen in the primary eye irritation study. In the rat acute and subchronic neurotoxicity studies, neuropathology and behavior changes were not observed.

In the rat developmental toxicity study, developmental toxicity including an increased incidence of dilated renal pelvis and cervical ribs occurred at a dose greater than the dose causing maternal toxicity (including decreased body weights and body weight gains and reduced food consumption and reduced food efficiency). The rabbit developmental toxicity study indicates qualitative evidence of increased developmental susceptibility based on increased resorptions per litter, increased post-implantation loss and dams with total resorptions, in the presence of maternal toxicity (reduced body weight gain, food consumption, and food efficiency). In a dose range-finding 1-generation reproduction study, systemic toxicity was manifested as decreased body weight and body weight gain in both the parents and offspring. The effects occurred at the same dose levels for both parental and the offspring, but the decrease in pup weight was more than that in the parental animals. However, the body weight effect was not found in the guideline 2-generation reproduction study in either parental or offspring animals at similar dose level. No reproductive toxicity was seen.

Pyraclostrobin has been classified as not likely to be carcinogenic to humans based on the lack of treated related increase in tumor incidence in adequately conducted carcinogenicity studies in rats and mice. Pyraclostrobin did not cause mutagenicity or genotoxicity in the in vivo and in vitro assays, nor did it cause immunotoxicity in T-cell dependent antibody response assays in mice with preliminary review.

Specific information on the studies received and the nature of the adverse effects caused by pyraclostrobin 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 “Pyraclostrobin—Human Health Risk Assessment for a Section 3 Registration of New Uses on Herb Subgroup 19A and Dill Seed, Plus Crop Group Conversions on Stone Fruit Group 12-12 and Tree Nut Group 14-12” at page 29 in docket ID number EPA-HQ-OPP-2013-0798.

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 pyraclostrobin used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to pyraclostrobin, EPA considered exposure under the petitioned-for tolerances as well as all existing pyraclostrobin tolerances in 40 CFR 180.582. EPA assessed dietary exposures from pyraclostrobin 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 pyraclostrobin.

In estimating acute dietary exposure, EPA used Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID) Version 3.16, which uses food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA) from 2003 through 2008. As to residue levels in food, EPA used tolerance-level residues or highest field trial residues, 100 percent crop treated (PCT), and empirical or default processing factors. Experimentally-derived processing factors were used for fruit juices, tomato, sugarcane, and wheat commodities. For all other processed commodities, DEEM default processing factors were assumed.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA's 2003-2008 NHANES/WWEIA. As to residue levels in food, EPA included tolerance-level or average field trial residues, average PCT estimates when available, and empirical processing factors. Experimentally-derived processing factors were used for fruit juices, tomato, sugar cane, and wheat commodities. For all other processed commodities, DEEM default processing factors were assumed.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that pyraclostrobin does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for existing uses as follows:

Almonds 40%; apples 15%; apricots 25%; barley 10%; green beans <2.5%; blueberries 45%; broccoli 5%; cabbage 10%; caneberries 50%; cantaloupes 15%; carrots 35%; cauliflower <2.5%; celery <2.5%; cherries 50%; corn 10%; cotton <2.5%; cotton (seed treatment) 10%; cucumber 10%; dry beans/peas 10%; garlic 10%; grapefruit 30%; grapes 30%; hazelnuts (filberts) 20%; lemons <2.5%; lettuce 5%; nectarines 10%; onions 25%; oranges 5%; peaches 20%; peanuts 25%; pears 15%; green peas 5%; pecans <2.5%; peppers 10%; pistachios 30%; plums/prunes 5%; potatoes 20%; pumpkins 20%; rice <1%; soybeans 5%; soybeans (seed treatment) 5%; spinach 5%; squash 15%; strawberries 65%; sugar beets 45%; sweet corn 5%; tangelos 15%; tangerines 10%; tomatoes 25%; walnuts <1%; watermelons 30%; wheat 5%; wheat (seed treatment) <1%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which pyraclostrobin may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for pyraclostrobin in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of pyraclostrobin. 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 for Groundwater (PRZM-GW) models, the estimated drinking water concentrations (EDWCs) of pyraclostrobin for acute exposures are estimated to be 35.6 parts per billion (ppb) for surface water and 0.02 ppb for ground water. Chronic exposures for non-cancer assessments are estimated to be 2.3 ppb for surface water and 0.02 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 35.6 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 2.3 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).

Pyraclostrobin is currently registered for the following uses that could result in residential handler and post-application exposures: Treated gardens, fruit or nut trees, tomato transplants, and turf. EPA assessed residential exposure using the following assumptions: Short-term adult handler exposures via the dermal and inhalation routes resulting from application of pyraclostrobin to gardens, trees, and turf. Short-term dermal post-application exposures were assessed for adults, youth 11 to 16 years old, and children 6 to 11 years old. Short-term dermal and incidental oral exposures were assessed for children 1 to <2 years old. Based on the registered uses of pyraclostrobin on residential and golf course turf, intermediate-term post-application exposures are possible. However, since the short- and intermediate-term endpoints and PODs for dermal and oral routes are the same, the short-term exposure and risk estimates are considered to be protective of potential intermediate-term exposure and risk.

For the aggregate assessment, inhalation and dermal exposures were not aggregated together because the toxicity effect from the inhalation route of exposure was different than the effect from the dermal route of exposure. The scenarios with the highest residential exposures that were used in the short-term aggregate assessment for pyraclostrobin are as follows:

• Adult short-term aggregate assessment—residential dermal post-application exposure via activities on treated turf.

• Youth (11-16 years old) short-term aggregate assessment—residential dermal exposure from post-application golfing on treated turf.

• Children (6-11 years old) short-term aggregate assessment—residential dermal exposures from post-application activities in treated gardens.

• Children (1<2 years old) short-term aggregate assessment—residential dermal and hand-to-mouth exposures from post-application exposure to treated turf.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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 pyraclostrobin to share a common mechanism of toxicity with any other substances, and pyraclostrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyraclostrobin 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. There is no evidence that pyraclostrobin results in increased susceptibility in rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. Although there is qualitative evidence of increased susceptibility in the prenatal development study in rabbits, the Agency did not identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment of pyraclostrobin. The degree of concern for prenatal and/or postnatal toxicity is low.

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 pyraclostrobin is complete.

ii. There is no indication that pyraclostrobin is a neurotoxic chemical. Effects seen in the acute and subchronic neurotoxicity studies in rats are considered to reflect perturbations in mitochondrial respiration leading to effects on energy production rather than signs of neurotoxicity; therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that pyraclostrobin results in increased susceptibility in rats in the prenatal developmental study or in young rats in the 2-generation reproduction study. The prenatal rabbit developmental toxicity study showed qualitative evidence of increased susceptibility to prenatal rabbits; however, this study was chosen for endpoint selection for the acute dietary (females 13-49) and short-term dermal exposure scenarios. This study has a clearly defined NOAEL of 5.0 mg/kg/day. EPA did not identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment of pyraclostrobin. The degree of concern for prenatal and/or postnatal toxicity is low.

iv. There are no residual uncertainties identified in the exposure databases. The acute dietary exposure assessments were performed assuming 100 PCT and tolerance-level or highest field trial residues. The chronic dietary exposure assessments were performed using average PCT estimates, when available, and tolerance-level or highest field trial residues. These data are reliable and are not expected to underestimate risks to adults or children. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to pyraclostrobin 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 pyraclostrobin.

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. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to pyraclostrobin will occupy 87% of the aPAD for females 13-49 years 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 pyraclostrobin from food and water will utilize 27% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of pyraclostrobin 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). Pyraclostrobin 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 pyraclostrobin.

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 110 for children 1-2 years old, 380 for children 6-11 years old, 1,600 for youth 11-16 years old, and 230 for adults from post-application exposures. Because EPA's level of concern for pyraclostrobin 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). Pyraclostrobin is currently registered for uses that could result in intermediate-term residential exposure; however, since the short- and intermediate-term endpoints and PODs for dermal and oral routes are the same, the short-term exposure and risk estimates are considered to be protective of potential intermediate-term exposure and risk and an intermediate-term aggregate assessment was not performed.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, pyraclostrobin is not expected to pose a cancer risk to humans.

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

Two adequate methods are available to enforce the tolerance expression for residues of pyraclostrobin and the metabolite BF 500-3 in or on plant commodities: A liquid chromatography with tandem mass spectrometry (LC/MS/MS) method, BASF Method D9908; and a high-performance LC with ultraviolet detection (HPLC/UV) method, Method D9904. The methods may be found in the Pesticide Analytical Manual, Volume I.

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 and U.S. residue definitions for pyraclostrobin residues on plant commodities are different. The Codex definition is pyraclostrobin, whereas the U.S. definition is pyraclostrobin and its desmethoxy metabolite. Codex has not established MRLs for pyraclostrobin on herbs or dill seed, and therefore there are no harmonization issues for those commodities. Codex has established MRLs for some members of the stone fruit group, i.e., cherries (3 mg/kg), peach/nectarine (0.3 mg/kg), and plums (0.8 ppm), but does not have a group tolerance. EPA has decided to issue a single group tolerance as requested for the stone fruit crop group, rather than harmonize with the individual MRLs for cherry, peach/nectarine, and plum, because adequate data supports the crop group tolerance. Codex has established a tree nut group tolerance at 0.02 mg/kg. The U.S. tolerance cannot be lowered, as it includes parent and a metabolite, each at 0.02 ppm, or 0.04 ppm total.

The tolerances being established for the herb subgroup 19A (40 ppm) and dill seed (40 ppm) are different than what the petitioner requested (85 ppm and 100 ppm, respectively). The requested tolerance levels for the herb subgroup 19A and dill seed were based on the use of field trial data without adjustment for the exaggerated application rate (2.7X) represented by those trials. Each of the two applications of pyraclostrobin were conducted at 2.7X the label rate, and the total seasonal rate was 2.7X the label rate. Using the assumption of proportionality, i.e., that the residue levels are proportional to the rate of application, the residue results may be adjusted to the concentrations expected at the 1X rate. The tolerance estimates at the 1X rate are 40 ppm for herb subgroup 19A and 40 ppm for dill seed.

Therefore, tolerances are established for residues of pyraclostrobin, carbamic acid, [2-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenyl]methoxy-, methyl ester and its desmethoxy metabolite (methyl-N-[[[1-(4-chlorophenyl)-1H-pyrazol-3-yl]oxy]methyl]phenylcarbamate) (BF 500-3), expressed as parent compound, in or on herb, subgroup 19A at 40 ppm; and dill, seed at 40 ppm. Additionally, the existing entries for “fruit, stone, group 12” at 2.5 ppm is modified to read “fruit, stone, group 12-12” at 2.5 ppm; and “nut, tree, group 14” at 0.04 ppm is modified to read “nut, tree, group 14-12, except pistachio” at 0.04 ppm.

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 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:

A. Background

Section 3 of the Defense of Marriage Act (DOMA), codified at 1 U.S.C. 7, provided that, when used in Federal law, the term “marriage” would mean only a legal union between one man and one woman as husband and wife, and that the term “spouse” referred only to a person of the opposite sex who is a husband or a wife. Because of DOMA, the Federal Government had been prohibited from recognizing marriages of same-sex couples for all Federal purposes, including travel and relocation entitlements.

On June 17, 2009, President Obama signed a Presidential Memorandum on Federal Benefits and Non-Discrimination stating that “[t]he heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees.” As part of its review, GSA identified a number of changes to the Federal Travel Regulation (FTR) that could be made. Subsequently, on June 2, 2010, President Obama signed a Presidential Memorandum directing agencies to immediately take actions, consistent with existing law, to extend certain benefits, including travel and relocation benefits, to same-sex domestic partners of Federal employees, and where applicable, to the children of same-sex domestic partners of Federal employees.

GSA published an interim rule and a final rule, respectively in the Federal Register on November 3, 2010, and on September 28, 2011 (75 FR 67629 and 76 FR 59914), that fulfilled the Presidential Memorandum by, among other things, amending the definition of “immediate family” in the FTR to include same-sex domestic partners and their dependents.

On June 26, 2013, in United States v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013), the Supreme Court of the United States (Supreme Court) held Section 3 of DOMA unconstitutional. As a result of this decision, GSA is now able to extend travel and relocation entitlements to Federal employees who are legally married to spouses of the same sex. Pursuant to 5 U.S.C. 5707, the Administrator of General Services is authorized to prescribe necessary regulations to implement laws regarding Federal employees who are traveling while in the performance of official business away from their official stations. Similarly, 5 U.S.C. 5738 mandates that the Administrator of General Services prescribe regulations relating to official relocation. The overall implementing authority is the Federal Travel Regulation (FTR), codified in Title 41 of the Code of Federal Regulations, Chapters 300-304 (41 CFR Chapters 300-304).

GSA published a proposed rule in the Federal Register on June 26, 2014 (79 FR 36279). The proposed rule recommended adding a definition for the terms “Marriage” and “Spouse”, and revising the definition of the term “Domestic Partnership”.

In response to the proposed rule, GSA received comments from six different entities (one Federal agency, one Federal employee, two individuals, and two associations). Some comments received were generally supportive as to the implementation of the changes to the FTR and some comments opposed the changes as written. All comments were carefully considered in the development of this final rule.

Two commenters supported the proposed rule without any additional changes made. One commenter requested a minor editorial change in section 300-3.1 in the revised definition for “Domestic Partner”, noting that the parenthetical “or foreign country” is not used in the term “Domestic Partnership”. The parenthetical “or foreign country” was used in the proposed rule for Supplementary Information under “A. Background” in explaining “Domestic Partnership”, and is used in the new term “Marriage”. They recommended further amending the term “Domestic Partnership” to add the term “or foreign country” after the word “state” in proposed paragraph 10 of the definition. GSA made the minor editorial change.

One commenter suggested that the effective date of the final rule be retroactive prior to the date of the Windsor decision (June 26, 2013). The comment stated this would allow employees who relocated prior to the Windsor decision, and who were legally married in states that recognized same-sex marriages, to be allowed to claim relocation entitlements for their same-sex spouses. This rule is effective from the date of publication, subject to retroactivity principles as discussed herein. As to retroactive application, if an employee or former employee amends a claim for reimbursement based upon application of the Windsor decision for expenses incurred prior to the effective date of this rule or prior to the date of the Windsor decision, the agency that authorized the travel or relocation should make a determination based upon the relevant circumstances of each individual case, in light of governing legal principles and agency regulations.

The two associations submitted comments opposing the changes in the proposed rule as written. Those comments are addressed herein together. One comment opposed adding to the definition of domestic partnership in section 300-3.1, the requirement that employees “certify that they would marry but for the failure of their state of residence to permit same-sex marriage” for those employees who reside in a state or other jurisdiction (or foreign country) whose laws do not permit same-sex marriage. In the same comment, the association also opposed requiring domestic partners, who reside in states or jurisdictions (or foreign countries) that authorize the marriage of two individuals of the same sex, to marry to be eligible for relocation entitlements as an immediate family member, if the employee is relocating to a foreign country.

The commenters stated that the changes would apply to Americans officially assigned to, or in transit to, foreign locations, and these individuals and their families would be at risk of losing existing legal protections and support provided to legally recognized partners. They also stated that by requiring employees to marry or certify their intent to do so, may put these employees and their partners and families at risk of persecution, incarceration, and execution while assigned abroad.

GSA recognizes that the legal landscape is rapidly changing, and certain states and other jurisdictions, as well as foreign countries, currently do not allow same-sex marriages. However, the proposed definition for the term “domestic partnership” in the FTR is in accordance with the definition used for other Federal employees benefit programs, and therefore, will not be changed. Employees with same-sex domestic partners living in states or other jurisdictions (or foreign countries) that allow them to marry have access to many, if not all, of the protections that married opposite-sex couples enjoy. Therefore, a separate category under the FTR's term “immediate family member” will not be created for employees and their domestic partners who live in states or other jurisdictions (or foreign countries) that allow them to marry but choose not to marry.

One comment suggested that GSA should make clear that agencies retain the authority to assign personnel abroad and afford staff and family assigned abroad the protections and support that will best promote the safety, efficiency, and effectiveness of their operation overseas. Since recruitment and assignment procedures are outside of the scope of the FTR, GSA did not address this issue.

Another comment suggested that the proposed changes would promote illegal discrimination and invidious state or other jurisdiction practices towards same-sex couples with regard to marriage, divorce, adoption, inheritance, property, tax filing, and spousal benefits. The changing of state or other jurisdiction benefit laws for marriage and/or domestic partners is outside the scope of the FTR, and therefore, is not addressed by GSA.

The associations strongly opposed GSA “abolishing” domestic partner benefits already extended. The associations stated that, given the limited access to marriage and other forms of non-marital relationship recognition for same-sex couples, along with the aforementioned issues associated with requiring couples to marry or certify an intent to marry, the proposed change would add further burdens for same-sex couples. Therefore, they suggested GSA should expand the terms for “spouse”, “marriage”, and “domestic partnership” to apply to both same-sex and opposite-sex domestic partners, thus extending travel and relocation benefits to partners in all relationships.

GSA is not abolishing already extended travel and relocation benefits. Rather, GSA is limiting benefits moving forward for same-sex domestic partners who choose not to marry, despite residing in states or other jurisdictions (or foreign countries) whose laws authorize same-sex marriage. Same-sex domestic partners who reside in states or other jurisdictions (or foreign countries) whose laws do not authorize same-sex marriage will still be permitted to claim travel and relocation benefits based upon the FTR and agency procedures for immediate family members. At this time, GSA is not including opposite-sex domestic partners as part of an employee's immediate family.

Based upon the comments received and suggested changes, the final rule updates the FTR by adding the definitions “Marriage” and “Spouse”, and revises the definition of “Domestic partnership”.

The term “marriage” is added to include any marriage, including a marriage between individuals of the same sex, that was entered into in a state or other jurisdiction (or foreign country) whose laws authorize the marriage, even if the married couple is domiciled in a state or other jurisdiction (or foreign country) that does not recognize the validity of the marriage. The term also includes common law marriage in states or other jurisdictions where such marriages are recognized, so long as they are proven according to the applicable state/jurisdiction laws. The term “spouse” is added to include any individual who has entered into such a marriage.

The term “marriage” will not include registered domestic partnerships, civil unions, or other similar formal relationships recognized under state or other jurisdiction (or foreign) law that are not denominated as a marriage under that state's or other jurisdiction's (or foreign country's) law, and the terms “spouse”, “husband and wife”, “husband”, and “wife” do not include individuals who have entered into such a relationship. This conclusion will apply regardless of whether individuals who have entered into such relationships are of the opposite sex or the same sex.

At the time the definition of “immediate family” in the FTR was amended to include same-sex domestic partners and their dependents, Section 3 of DOMA prohibited GSA from recognizing same-sex marriages. Thus, the availability of same-sex marriage in a particular state or other jurisdiction was not relevant to the determination of coverage eligibility for travel and relocation benefits. Now that FTR coverage is available to the same-sex spouses of Federal employees, pursuant to Windsor and the amendments finalized by this rule, GSA has reconsidered the need and scope of the extension of FTR coverage to same-sex domestic partners. When the proposed rule was published on June 26, 2014, only a minority of states recognized same-sex marriages. However since then, a majority of states currently permit same-sex marriage; therefore many same-sex couples have the same access to marriage that is available to opposite-sex couples. However, until marriage is available to same-sex couples in all fifty states and other jurisdictions, the extension of benefits to same-sex domestic partners will continue to play an important role in bridging the gap in legal treatment between same-sex and opposite-sex couples. Therefore, GSA is tailoring FTR coverage to those same-sex couples who would marry, but live in states or other jurisdictions (or foreign countries) where same-sex marriage is prohibited.

Same-sex couples living in states or other jurisdictions that allow them to marry have access to many, if not all, of the protections that married opposite-sex couples enjoy. Therefore, for employees living in states or other jurisdictions where they are able to marry, there is less need to create a separate path by which same-sex domestic partners are eligible for FTR benefits. For those employees unable to marry under the laws of the states or other jurisdictions in which they live, however, it is appropriate to extend FTR coverage to same-sex domestic partners in the form described in this regulation.

The term “domestic partnership” is updated to read that same-sex domestic partners that have a documented domestic partnership, and reside in a state or other jurisdiction (or foreign country) whose laws do not permit same-sex marriage or recognize their validity, will still be considered an immediate family member, under the FTR and agency policy, only if they certify that they would marry but for the failure of their state or other jurisdiction (or foreign country) of residence to permit same-sex marriage. For those individuals who reside in states or other jurisdictions (or foreign countries) that authorize the marriage of two individuals of the same sex, the individuals will no longer be considered domestic partners or immediate family members due to the certification requirement.

Due to current statutory restrictions, however, this final rule does not apply to the relocation income tax allowance or the income tax reimbursement allowance for state taxes when the applicable state law does not recognize same-sex marriage.

This case is included in GSA's retrospective review of existing regulations under Executive Order 13563. Additional information is located in GSA's retrospective review (2015), available at www.gsa.gov/improvingregulations.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a “significant regulatory action,” and therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. Accordingly, the final rule has been reviewed by the Office of Management and Budget. This final rule is not a major rule under 5 U.S.C. 804.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from Administrative Procedure Act per 5 U.S.C. 553(a)(2), because it applies to agency management or personnel.

The Paperwork Reduction Act does not apply because the changes to the Federal Travel Regulation do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

For the reasons set forth in the Preamble, under 5 U.S.C. 5701-5709, 5721-5738, and 5741-5742, GSA amends 41 CFR part 300-3, as set forth below:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The snapper-grouper fishery of the South Atlantic includes vermilion snapper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The commercial quota for vermilion snapper in the South Atlantic is divided into separate quotas for two 6-month time periods, January through June and July through December. For the January 1 through June 30, 2015, fishing season, the commercial quota is 394,829 lb (179,091 kg), gutted weight (438,260 lb (198,791 kg), round weight), as specified in 50 CFR 622.190(a)(4)(i)(C).

On February 26, 2015, NMFS published a temporary rule in the Federal Register to reduce the commercial trip limit for vermilion snapper in or from the EEZ of the South Atlantic to 500 lb (227 kg), gutted weight, effective 12:01 a.m., local time, March 2, 2015, until July 1, 2015, or until the quota is reached and the commercial sector closes, whichever occurs first (80 FR 10392).

In accordance with regulations at 50 CFR 622.193(f)(1), NMFS is required to close the commercial sector for vermilion snapper when the commercial quota for that portion of the fishing year has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic vermilion snapper for the January-June fishing period will have been reached by April 15, 2015. Accordingly, the commercial sector for South Atlantic vermilion snapper is closed effective 12:01 a.m., local time, April 15, 2015, until 12:01 a.m., local time, July 1, 2015. The commercial quota for vermilion snapper in the South Atlantic is 394,829 lb (179,091 kg), gutted weight (438,260 lb (198,791 kg), round weight), for the July 1 through December 31, 2015, fishing period, as specified in 50 CFR 622.190(a)(4)(ii)(C).

The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having vermilion snapper onboard must have landed and bartered, traded, or sold such vermilion snapper prior to 12:01 a.m., local time, April 15, 2015. During the closure, the bag limit specified in 50 CFR 622.187(b)(5) and the possession limits specified in 50 CFR 622.187(c)(1), apply to all harvest or possession of vermilion snapper in or from the South Atlantic EEZ. During the closure, the sale or purchase of vermilion snapper taken from the EEZ is prohibited. As specified in 50 CFR 622.190(c)(1)(i), the prohibition on sale or purchase does not apply to the sale or purchase of vermilion snapper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, April 15, 2015, and were held in cold storage by a dealer or processor. For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and the sale and purchase provisions of the commercial closure for vermilion snapper would apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic vermilion snapper and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.193(f)(1) and is exempt from review under Executive Order 12866.

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the commercial sector for vermilion snapper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect vermilion snapper since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and would likely result in a harvest well in excess of the established commercial quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).