Federal Register Vol. 81, No.123,

We proposed to amend 14 CFR part 39 by adding a notice of proposed rulemaking (NPRM) that would apply to certain Zodiac Seats California LLC seating systems. The NPRM was published in the Federal Register on April 20, 2016 (81 FR 23212) (“the NPRM”). The NPRM proposed to require removing affected seating systems. The NPRM also invited comments on its overall regulatory, economic, environmental, and energy aspects.

Since we issued the NPRM, we have received a request from Zodiac Seats California LLC to extend the comment period. Zodiac stated that initial review of the NPRM by the Society of Automotive Engineers (SAE) Aircraft Seat Committee revealed that since the subject matter of the NPRM is highly significant to the industry, more time is necessary to coordinate the industry input to formalize comments. Zodiac added that the comment due date of June 6, 2016, did not provide adequate time to properly research the topics and submit practical comments.

We agree with the commenter's request. We have determined that it is appropriate to reopen the comment period for the NPRM to give all interested persons additional time to examine the proposed requirements and submit comments.

The original comment period for the NPRM, Docket No. FAA-2016-5595, Directorate Identifier 2015-NM-087-AD, closed on June 6, 2016.

We consider it necessary to reopen the comment period to give all interested persons additional time to examine the proposed requirements of the NPRM and submit comments. We have determined that reopening the comment period until July 7, 2016, will not compromise the safety of these airplanes.

The comment period for Docket No. FAA-2016-5595, Directorate Identifier 2015-NM-087-AD, has been revised. The comment period now closes July 7, 2016.

No other part of the regulatory information has been changed; therefore, the NPRM is not republished in the Federal Register.

I. Third Public Meeting of the ACCESS Committee

The third meeting of the ACCESS Advisory Committee will be held on July 11 and 12, 2016, from 9 a.m. to 5 p.m., Eastern Daylight Time. The meeting will be held at the Ritz Carlton, Pentagon City, 1250 Hayes Street, Arlington, VA 22202, in the Diplomat Room. At the meeting, the ACCESS Advisory Committee will continue to address whether to require accessible inflight entertainment (IFE) and strengthen accessibility requirements for other in-flight communications, whether to require an accessible lavatory on new single-aisle aircraft over a certain size, and whether to amend the definition of “service animals” that may accompany passengers with a disability on a flight. This meeting will include reports from the three working groups on the status of their discussions of the issues identified in previous meetings and any strawman proposals that are being developed. Prior to the meeting, the agenda will be available on the ACCESS Advisory Committee's Web site, www.transportation.gov/access-advisory-committee.

The meeting will be open to the public. Attendance will be limited by the size of the meeting room (maximum 150 attendees). Because space is limited, we ask that any member of the public who plans to attend the meeting notify the registration contact, Kyle Illgenfritz ([email protected]; 703-442-4575 extension 128) at Linkvisum, no later than July 5, 2016. At the discretion of the facilitator and the Committee and time permitting, members of the public are invited to contribute to the discussion and provide oral comments.

Members of the public may submit written comments on the topics to be considered during the meeting by July 5, 2016, to FDMC, Docket Number DOT-OST-2015-0246. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. DOT recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that DOT can contact you if there are questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, put the docket number, DOT-OST-2015-0246, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing.

To view comments and any documents mentioned in this preamble as being available in the docket, go to www.regulations.gov. Enter the docket number, DOT-OST-2015-0246, in the keyword box, and click “Search.” Next, click the link to “Open Docket Folder” and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.

The ACCESS Advisory Committee is established by charter in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. Secretary of Transportation Anthony Foxx approved the ACCESS Advisory Committee charter on April 6, 2016. The committee's charter sets forth policies for the operation of the advisory committee and is available on the Department's Web site at www.transportation.gov/office-general-counsel/negotiated-regulations/charter.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

DOT anticipates that the ACCESS Advisory Committee will have three additional two-day meetings in Washington DC The meetings are tentatively scheduled for following dates: Fourth meeting, August 16-17; fifth meeting, September 22-23, and the sixth and final meeting, October 13-14. Notices of all future meetings will be published in the Federal Register at least 15 calendar days prior to each meeting.

Notice of this meeting is being provided in accordance with the Federal Advisory Committee Act and the General Services Administration regulations covering management of Federal advisory committees. See 41 CFR part 102-3.

I. General Information Does this action apply to me?

This proposed rule may be of interest to you if you are an educational institution, a company (including a small business firm), or a nonprofit institution, that collaborates or would like to collaborate with Federal Government employees on technology research and development of mutual interest.

The Stevenson-Wydler Technology Innovation Act of 1980, Public Law 96-480, as amended (codified at title 15 of the United States Code (U.S.C.), Section 3701 et seq.) (the Stevenson-Wydler Act), sets forth a national policy to promote cooperation among academia, Federal laboratories, labor, and industry in order to facilitate the transfer of innovative federal technologies to United States and world markets. In furtherance of that policy, the Administration's Lab to Market initiative seeks to “significantly accelerate and improve technology transfer by streamlining administrative processes, facilitating partnerships with industry, evaluating impact, and opening federal research and development (R&D) assets as a platform for innovation and economic growth.” (Lab to Market: Cross Agency Priority Goal Quarterly Progress Update, Fiscal Year 2015 Quarter 4). One proven method to ensure that federal innovations are made available to industry and the public is to encourage frequent interactions among Federal laboratories, academic institutions, and industry, including small businesses.

Pursuant to authority delegated to it by the Secretary of Commerce, NIST is providing notice to the public of proposed rulemaking to remove outdated provisions in part 17 of title 15 of the Code of Federal Regulations (CFR) regarding the licensing of inventions owned by the Department, and to revise part 17 to address the use of personnel exchange authorities and programs as authorized under 15 U.S.C. 3712, which authorizes the establishment of a program to foster the exchange of scientific and technical personnel among academia, industry, and Federal laboratories.

Under the Stevenson-Wydler Act, several mechanisms have been developed which are being used by various Federal agencies for exchanging personnel with the public and private sectors. The proposed rules will facilitate agencies' use of existing mechanisms, as well as provide for more integrated programs intended to expand the exchange of personnel as authorized under section 3712, in order to accelerate the transfer of innovative technologies from Federal laboratories for the benefit of the United States and its economy. Some current authorities relevant to personnel exchange between Federal laboratories and non-federal partners are described below.

1. Cooperative Research and Development Agreement—The Cooperative Research and Development Agreement (CRADA) is one of the principal mechanisms used by Federal laboratories to engage in collaborative efforts with non-federal partners to achieve the goals of technology transfer. It affords discretion to Government Owned Government Operated (GOGO) and Government Owned Contractor Operated (GOCO) laboratories to enter into collaborative agreements with many types of organizations. CRADAs allow one or more Federal laboratories and one or more non-federal parties (i.e., state or local government units; industrial organizations; public and private foundations; universities and other non-profit organizations; and other individuals who are licensees of Government-owned inventions) to collaborate to conduct specified research and development-related activities that are consistent with the laboratory's mission. Technical assistance can also be provided to small businesses. The legal authority for this personnel exchange mechanism via mutual collaboration on research and development projects is 15 U.S.C. 3710a. DOE has recently used the CRADA authority to enable a pilot program for public-private entrepreneurial partnerships between Federal laboratories and the private sector for the placement of personnel. The DOE's Lawrence Berkeley National Laboratory provides a virtual home for entrepreneurial clean-energy researchers through “Cyclotron Road,” a new public-private partnership to advance energy technologies until they can succeed beyond the laboratory. This new, competitive opportunity provides clean energy researchers with business mentorship and access to resources and potential business partners to advance innovation.

2. Entrepreneur Leave Program (ELP)—Some Department of Energy (DOE) GOCO laboratories have a personnel pathway that permits a limited number of contractor employees to take entrepreneurial leave, also known as Entrepreneurial Separation to Transfer Technology, for a designated period of time. Some laboratories offer the employee assurance of appropriate resources upon return to restart a research program, while others offer continued benefits while the employee is on leave. These programs are designed to facilitate commercialization of technologies developed in a DOE laboratory. Because these laboratories are GOCO facilities, the programs are subject to the policies and procedures of the contractor organization.

3. Entrepreneur-in-Residence (EIR)—EIRs are entrepreneurs from outside of Government who want to use their skills to benefit the public good. They are typically mid- to senior-level professionals and may be academics, technology entrepreneurs, software designers, policymakers, business experts, or non-profit leaders who have demonstrated a significant record of innovative achievement in their field. Funding models differ from agency to agency, and some flexibility in authorities can be applied in creating these programs. Generally, these programs run through state or non-profit organizations that recommend or otherwise place the personnel within the technology transfer office. NIST operates its EIR program under the Partnership Intermediary Agreement (PIA) authority, 15 U.S.C. 3715. The program is conducted through a PIA with the Maryland Technology Development Corporation, which selects and funds each EIR. The National Institutes of Health (NIH) program is currently conducted through a contracting mechanism to place EIRs at several of NIH institutes and centers. Both programs rely on the expertise of existing State-based programs with a shared vision of commercializing federal technologies and providing expert support to potentially interested parties working at these Federal laboratories. Similarly, the Department of Homeland Security (DHS) operates a Loaned Executive Program that is open to all interested executive-level talent; DHS makes unpaid temporary appointments under 5 U.S.C. 3109 to place private sector consultants at various DHS laboratories.

4. Strategic Partnership Projects (SPP)—This DOE authorization enables a DOE GOCO laboratory to advise United States companies or other agencies and institutions on problems as to which the laboratory has special expertise or equipment. Work is performed under a formal agreement on a full cost recovery basis if the assistance requires more than an incidental amount of time. Authorization: 48 CFR 970.5217-1—Work for Others Program. In addition, the Oak Ridge Institute for Science and Education (ORISE), a DOE institution operated under contract on behalf of DOE, implements a range of education, training, and workforce development programs on behalf of DOE and a number of other Federal sponsors. Programs provide opportunities for participants at a broad range of locations including Federal research laboratories (including GOCO), agency headquarters offices, or universities. For example, an SPP agreement between the United States Department of Agriculture (USDA) and ORISE authorizes ORISE to provide qualified candidates for research positions and to manage the appointment process. ORISE-identified candidates may be selected from a variety of sources and placed into a variety of research-related positions. Appointed candidates placed by ORISE have “program participant” status and are not Federal employees.

5. Use of Facilities—Outside entities such as universities, technology incubators, private companies, and individual inventors may be able to use scientific equipment, specialized rooms, testing centers, or other unique experimental property or facilities of the Federal laboratories, such as DOE's designated scientific user facilities located across the DOE laboratories. Such facility use is often at the discretion of the Federal laboratory. While this provides the opportunity for outside entities to place personnel at Government facilities, it does not typically provide a mechanism for those personnel to collaborate with Government personnel (Federal employees). DOE's scientific user facilities are open access, through a proposal solicitation process, and do enable collaboration with scientists and engineers that are employees of the laboratory contractor.

6. Visiting Scientist Programs—These are arrangements allowing industry personnel to work for limited periods of time, usually 6-12 months, in a GOCO laboratory. Depending on the program, costs can be borne by the GOCO laboratory or by the organization sending the personnel, and intellectual property arrangements can be addressed in exchange agreements. Because these laboratories are GOCO facilities, they are subject to the policies and procedures of the contractor organization. DOE's national laboratories operated as GOCOs and NIH (e.g., Frederick National Laboratory for Cancer Research) currently offer visiting scientist opportunities.

7. Educational Partnership Agreements (EPAs)—These agreements are entered into between the Department of Defense (Defense) and educational institutions, including colleges, universities, and local education agencies, to encourage and enhance the study of scientific disciplines. Under an EPA, a Defense laboratory director may make laboratory personnel available to teach science courses or to assist in the development of science courses and materials for the institution; provide for sabbatical opportunities for faculty and internship opportunities for students of the institution; involve faculty and students of the institution in Defense laboratory projects, cooperate with the institution in developing a program under which students may be given academic credit for work on Defense laboratory projects; provide academic and career advice to students of the institution; loan Defense laboratory equipment to the institution for any purpose and duration in support of such agreement; and transfer commonly used surplus computer or other scientific equipment to the institution. EPAs are authorized by 10 U.S.C. 2194.

8. Co-Locations—The USDA has a number of laboratories that are co-located on University campuses, which fosters a high level of scientific exchange between the USDA scientists and their university collaborators.

The regulation proposed by NIST to implement 15 U.S.C. 3712, in consultation jointly with the Department of Energy and the National Science Foundation, is intended to accomplish two main objectives. The first objective is to clarify the appropriate use of CRADA authority under 15 U.S.C. 3710a for personnel exchanges where a Federal laboratory has an existing relationship with the potential partner through another legal mechanism, such as a grant or cooperative agreement. The second objective is to increase the use of existing authorities to implement personnel exchange programs at Federal Laboratories: (1) By utilizing the existing CRADA authority to transfer personnel to and from a Federal laboratory for joint research projects or the development of existing laboratory technology; and (2) by utilizing the General Services Administration (GSA)'s Presidential Innovation Fellows program to offer Federal laboratories additional options for implementing Entrepreneur-in-Residence programs.

Under the proposed rule, all existing provisions in part 17 of title 15 of the Code of Federal Regulations (CFR), “Licensing of Government-Owned Inventions in the Custody of the Department of Commerce,” which are outdated, would be deleted. Outdated subpart A implemented for the Department of Commerce licensing rules found at 41 CFR part 101-4, which were themselves removed at 50 FR 28402, July 12, 1985. Outdated subpart B was reserved. Outdated subpart C set forth appeal procedures addressed to the outdated licensing rules of subpart A. All subparts are obsolete, and the rules governing the licensing of government-owned inventions are today found in 37 CFR part 404. The heading of part 17 would be revised to read “Personnel Exchanges Between Federal Laboratories and Non-Federal Entities,” and five new sections would be added.

Section 17.1, Scope, sets forth the scope of revised part 17, which is to implement 15 U.S.C. 3712 and to clarify the appropriate use of personnel exchanges in relation to Federal laboratory CRADAs under the authority of 15 U.S.C. 3710a(a)(1), including CRADAs involving as parties recipients of Federal funding under grants and contracts, which could include National Network for Manufacturing Innovation awardees.

Section 17.2, Definitions, provides definitions for certain terms used in this part.

Section 17.3, Exchange of Federal Laboratory Personnel with Recipients of Federal Funding, provides in paragraph (a) that the existence of a funding agreement (as defined in 35 U.S.C. 201(b)) between a Federal laboratory and a contractor shall not preclude a CRADA with that contractor, where the Federal laboratory director makes a determination that the technical subject matter of the funding agreement is sufficiently distinct from that of the CRADA. Paragraph (a) also provides that a contractor which is a collaborating party shall in no event reimburse a Federal agency under a CRADA using funds awarded to the contractor by that agency.

Paragraph (b) of section 17.3 provides that a Federal laboratory may exchange personnel with a contractor under a CRADA where the determination required under paragraph (a) cannot be made, provided that the CRADA includes at least one collaborating party in addition to the Federal laboratory and that contractor. In that circumstance, the Federal laboratory shall not provide services, property, or other resources to that contractor under the CRADA, and if any individual terms of that contractor's funding agreement conflict with the terms of the multi-party CRADA, then the funding agreement terms will control as applied to that contractor and the Federal laboratory only.

Paragraph (c) of section 17.3 sets forth a number of factors which may be taken into account in making the “sufficiently distinct” determination required under paragraph (a), including whether the conduct of specified research or development efforts under the CRADA would require the contractor to perform tasks identical to those required under the funding agreement; whether existing intellectual property to be provided by the Federal laboratory or the contractor under the CRADA is the same as that provided under, or referenced in, the funding agreement; whether the contractor's employees performing the specified research or development efforts under the CRADA are the same employees performing the tasks required under the funding agreement; and whether services, property or other resources contemplated by the Federal Laboratory to be provided to the contractor for the specified research or development efforts under the CRADA would materially benefit the contractor in the performance of tasks required under the funding agreement.

Section 17.4, Personnel Exchanges from a Federal Agency, provides in paragraph (a)(1) that a Federal laboratory may exchange its personnel with a collaborating party under a CRADA where no invention currently exists. Under paragraph (a)(2), a Federal laboratory may exchange personnel with a non-Federal collaborating party for the purposes of developing or commercializing an invention in which the Federal government has an ownership interest, including an invention made by an employee or former employee while in the employment or service of the Federal government, and such personnel exchanged may include such employee or former employee who is an inventor. Paragraph (a)(2) also provides that funding may be provided by the non-federal collaborating party to the Federal laboratory for the participation of the Federal employee in developing or commercializing an invention, including costs for salary and other expenses, such as benefits and travel. Consistent with guidance in the Office of Legal Counsel's Memorandum for Gary Davis, Acting Director, Office of Government Ethics, September 7, 2000, “Application of 18 U.S.C. 209 to Employee-Inventors Who Receive Outside Royalty Payments,” paragraph (a)(2) also sets forth that royalties from inventions received through a license agreement negotiated with the Federal laboratory and paid by the laboratory to an inventor who is a Federal employee are considered Federal compensation. Paragraph (a)(3) provides that where an employee leaves Federal service in order to receive salary or other compensation from a non-Federal organization, a Federal laboratory may use reinstatement authority in accordance with 5 CFR 315.401, or other applicable authorities, to rehire the former Federal employee at the conclusion of the exchange.

In exchanging personnel with a collaborating party under a CRADA, as in any other exercise of the CRADA authority, a Federal Agency should take into account the provisions of 15 U.S.C. 3710a(c)(3) regarding standards of conduct for its employees for resolving potential conflicts of interest.

Section 17.5, Personnel Exchanges to a Federal Agency, provides that a Federal Agency may provide funds for non-federal personnel exchanged in order to bring into a Federal laboratory outside personnel with expertise in scientific commercialization through the Presidential Innovation Fellows program, and that an Agency will engage with the General Services Administration (GSA) to transfer funding for exchanged personnel and to select and place Entrepreneurs-In-Residence at the laboratory for the purposes of evaluating the laboratory's technologies, and providing technical consulting to facilitate readying a technology for commercialization by an outside entity.

NIST requests comments on this proposed rule to encourage the exchange of personnel among Federal laboratories, State, local, and tribal governments, academia and industry, including small businesses. NIST is requesting ideas and comments about ways in which an integrated program might be developed. We have included some questions that you might consider as you develop your comments.

1. Personnel exchanges commonly occur in the course of CRADAs involving Federal laboratories and collaborating parties. Are there ways to further promote personnel exchanges involving CRADAs? Are there ways to use the CRADA authority to develop a more integrated personnel exchange program? Are there other mechanisms that you find effective and/or easier to use that should be included in this regulation?

2. Do the proposed regulations facilitate the exchange of personnel between Federal laboratories and academia and industry? Are there additional mechanisms that should be incorporated in this regulation?

When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Please organize your comments by referencing the specific question you are responding to or the relevant section number in the proposed regulatory text.

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

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

v. Provide specific examples to illustrate your concerns and suggest alternatives.

vi. Explain your views as clearly as possible.

vii. Comments that contain profanity, vulgarity, threats, or other inappropriate language will not be considered.

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

This rulemaking is a significant regulatory action under Sections 3(f)(3) and 3(f)(4) of Executive Order 12866, as it raises novel policy issues. This rulemaking, however, is not an “economically significant” regulatory action under Section 3(f)(1) of the Executive Order, as it does not have an effect on the economy of $100 million or more in any one year, and it does not have a material adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

This proposed rule does not contain policies with Federalism implications as defined in Executive Order 13132.

The Regulatory Flexibility Act (RFA) requires the preparation and availability for public comment of “an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:

A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble and in the SUMMARY section of the preamble. The statutory basis for this proposed rule is provided by 15 U.S.C. 3712. This proposed rule, if implemented, is not expected to directly affect any small entities. Federal agencies that would be directly affected by this rulemaking are not small governmental jurisdictions, small organizations, or small businesses, as defined by the RFA. 5 U.S.C. 601. Any requirements imposed by the proposed rule would be obligatory only upon Federal agencies. NIST does not expect the issuance of the proposed rule to result in any direct impacts to small entities pursuant to the RFA. Small entities could potentially benefit from exchanging personnel with Federal agencies.

The information provided above supports a determination that this rule would not have a significant economic impact on a substantial number of small entities. Because this rulemaking, if adopted, would directly affect Federal agencies and not small entities, NIST concludes the action would not result in a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

This proposed rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.

For the reasons stated in the preamble, the National Institute of Standards and Technology proposes to revise 15 CFR part 17 as follows:

I. Summary

This regulation proposes to improve the transportation planning process by strengthening the coordination of MPOs and States and promoting the use of regional approaches to planning and decisionmaking. The proposed rule would emphasize the importance of applying a regional perspective during the planning process, to ensure that transportation investments reflect the needs and priorities of an entire region. Recognizing the critical role MPOs play in providing for the well-being of a region, this proposed rule would strengthen the voice of MPOs in the transportation planning process.

This proposed rule would revise the regulatory definition of “metropolitan planning area” (MPA) to better align with the statutory requirements in 23 U.S.C. 134 and 49 U.S.C. 5303.1 Specifically, the proposed rule would amend the definition of MPA in 23 CFR 450.104 to include the conditions in 23 U.S.C. 134(e)(2) that require the MPA, at a minimum, include the entire urbanized area and the contiguous area expected to become urbanized within a 20-year forecast period for the metropolitan transportation plan. By aligning the regulatory definition of the MPA with the statute, the proposed rule would acknowledge that the MPA is dynamic. The MPA is the basic geographic unit for metropolitan planning; therefore this requirement will ensure that planning activities consider the entire region of the urbanized area consistently.

An exception in 23 U.S.C. 134(d)(7) allows multiple MPOs to be designated within a single MPA if the Governor and MPO determine that the size and complexity of the area make multiple MPOs appropriate; the proposed rule would establish certain requirements applicable in such instances where multiple MPOs serve a single MPA. It would also establish certain requirements applicable in such instances where an MPO's urbanized area spreads into the MPAs of neighboring MPOs. First, the proposed rule would clarify that MPA boundaries are not necessarily synonymous with MPO boundaries. Second, the proposed rule would amend § 450.310(e) of the regulation to clarify that, where more than one MPO serves an MPA, the Governor and affected MPOs will establish or adjust the boundaries for each MPO within the MPA by agreement. Third, the proposed rule would establish additional coordination requirements for areas where multiple MPOs are designated within the MPA. Under the proposed rule, the Governor and MPOs would determine whether the size and complexity of the MPA make the designation of multiple MPOs appropriate; if they determine it is not appropriate then the MPOs would be required to merge or adjust their jurisdiction such that there is only one MPO within the MPA. If they determine that designation of multiple MPOs is appropriate, then the MPOs may remain separate, with separate boundaries of responsibility within the MPA, as established by the affected MPOs and the Governor. However, the proposed rule would require those multiple separate MPOs to jointly develop unified planning products: A single long range plan (referred to as the metropolitan transportation plan), a single TIP, and a jointly established set of performance targets for the MPA.

The requirement for unified planning products also applies to urbanized areas that cross State lines. In multistate urbanized areas, the Governors and MPOs designated within the MPA must jointly determine whether the size and complexity of the MPA warrant designation of more than one MPO and must jointly develop unified planning products.

These requirements for a single planning process and a single metropolitan transportation plan to accommodate the intended growth of a region will enable individuals within that region to better engage in the planning process and facilitate their efforts to ensure that the growth trajectory matches their vision and goals. In order to support the development of these single documents, the MPOs would be required to establish procedures for joint decisionmaking, including a process for resolving disagreements.

Additionally, the proposed rule seeks to strengthen the role that MPOs play in the planning process by requiring States and MPOs to agree to a process for resolving disagreements and including that process in the documentation reviewed by FHWA and FTA when they make a planning finding under 23 U.S.C. 135(g)(8). The planning finding is a determination on whether the transportation planning process through which statewide transportation plans and programs are developed is consistent with 23 U.S.C. 134-135.

These proposed changes to the planning regulations are designed to facilitate metropolitan and statewide transportation planning processes that are more efficient, more comprehensible to stakeholders and the public, and more focused on projects that address critical regional needs. The proposed rule would help position MPOs to respond to the growing trend of urbanization. It would better align the planning processes with the regional scale envisioned by the performance-based planning framework and particularly those measures focused on congestion and system performance. The proposed rule also would help MPOs to achieve economies of scale in planning by working together and drawing on a larger pool of human, material, financial, and technological resources.

The metropolitan planning statute defines an MPA as “the geographic area determined by agreement between the metropolitan planning organization for the area and the Governor under subsection [134](e)” 23 U.S.C. 134(b)(1). The agreement on the geographic area is subject to the minimum requirements contained in 23 U.S.C. 134(e)(2)(A), which states that each MPA “shall encompass at least the existing urbanized area and the contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan”.

The MPA and MPO provisions in 23 U.S.C. 134 make it clear that the intent for a typical metropolitan planning structure is to have a single MPO per urbanized area. However, the statute does create an exception in 23 U.S.C. 134(d)(7), which provides that more than one MPO may be designated within an existing MPA only if the Governor and the existing MPO determine that the size and complexity of the existing MPA make designation of more than one MPO for the area appropriate. Section 134(d)(7) reinforces the interpretation that the norm envisioned by the statute is that urbanized areas not be divided into multiple planning areas.

In 1991, the Intermodal Surface Transportation Efficiency Act was enacted with provisions intended to strengthen metropolitan planning. In particular, the law gave MPOs responsibility for coordinated planning to address the challenges of regional congestion and air quality issues. This enhanced planning role for MPOs was defined in the 1993 planning regulation, which was written to carry out these changes to statute. The 1993 planning regulation described a single coordinated planning process for the metropolitan planning area (MPA) resulting in a single metropolitan transportation plan for the MPA. In several locations, the 1993 regulation recognized the possibility of multiple MPOs within a single MPA and provided expectations for coordination, which included an overall transportation plan for the entire area. (See 58 FR 58040, October 28, 1993). The 1993 regulation stated in the former § 450.310(g) that “where more than one MPO has authority within a metropolitan planning area or a nonattainment or maintenance area, there shall be an agreement between the State departments(s) of transportation and the MPOs describing how the processes will be coordinated to assure the development of an overall transportation plan for the metropolitan planning area.” Further, that regulation stated in former § 450.312(e) that where “more than one MPO has authority in a metropolitan planning area . . . the MPOs and the Governor(s) shall cooperatively establish the boundaries of the metropolitan planning area . . . and the respective jurisdictional responsibilities of each MPO.” In practice, however, many MPOs interpreted the MPA to be synonymous with the boundaries of their MPO's jurisdiction, even in those areas where multiple MPOs existed within a single urbanized area, resulting in multiple “MPAs” within a single urbanized area.

In 2007, the FHWA and FTA updated the regulations to align with changes made in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users and its predecessor, the Transportation Equity Act for the 21st Century. The revised regulations reflected the practice of having multiple “MPAs” within a single urbanized area, although the statute pertaining to this issue had not changed. The 2007 regulation refers to multiple MPOs within an urbanized area rather than multiple MPOs within an MPA, and the term “MPA” was used to refer synonymously to the boundaries of an MPO. The regulations stated “if more than one MPO has been designated to serve an urbanized area, there shall be a written agreement among the MPOs, the State(s), and the public transportation operator(s) describing how the metropolitan transportation planning processes will be coordinated to assure the development of consistent metropolitan transportation plans and TIPs across the MPA boundaries, particularly in cases in which a proposed transportation investment extends across the boundaries of more than one MPA.” See 72 FR 7224, February 14, 2007. The FHWA and FTA adopted that language as § 450.314(d), and redesignated it in a 2016 rulemaking as § 450.314(e).2 The 2007 rule also added § 450.312(h), which explicitly recognizes that, over time, an urbanized area may extend across multiple MPAs. The 2007 rulemaking did not address how to reconcile these regulatory changes with the statutory minimum requirement that an MPA include the urbanized area in its entirety.

As a result, since 2007, the language of the regulation has supported the possibility of multiple MPOs within an urbanized area rather than within an MPA. The FHWA and FTA have concluded this 2007 change in the regulatory definition has fostered confusion about the statutory requirements and resulted in less efficient planning outcomes where multiple TIPs and metropolitan transportation plans are developed within a single urbanized area. This proposed rule is designed to correct the problems that have occurred under the 2007 rule and return to the structure embodied in the rule before the 2007 amendments and envisioned in statute. The additional coordination requirements pertain to all MPOs designated within the MPA boundaries.

Illustrations of metropolitan areas are included in the docket to aid understanding of the distinction between MPO and MPA boundaries, and also the difference between the way MPAs have been designated in practice and the minimum area that must be included as a result of this proposed rulemaking. These illustrations will help clarify the coordination requirements proposed in this rulemaking.

The metropolitan planning statute calls for “each MPO to prepare and update a transportation plan for its metropolitan planning area” and “develop a TIP for the metropolitan planning area.” 23 U.S.C. 134(i)(1)(A) and (j)(1)(A). As discussed above, the metropolitan planning statute includes an exception provision in 23 U.S.C. 134(d)(7) that allows more than one MPO in an MPA under certain conditions. In some instances, multiple MPOs have been designated not only within a single MPA, but also within a single urbanized area in an MPA. Presently, such MPOs typically create separate metropolitan transportation plans and TIPs for separate parts of the urbanized area. Currently, the regulations require that where multiple MPOs exist within the same urbanized area, their written agreements must describe how they will coordinate activities. However, the extent and effectiveness of coordination varies, and in some cases effective coordination on regional needs and interests can prove challenging. Ultimately, the Secretary of Transportation believes, and FHWA and FTA concur, that the end result of two or more separate metropolitan transportation planning processes, resulting in two or more separate plans and TIPs for a single urbanized area is most often both inefficient and confusing to the public. For example, members of the public may be affected by projects in multiple MPO jurisdictions, either because they live in the area of one MPO and work or regularly travel to another, or because the MPOs' jurisdictional lines bisect their community. They would therefore find it necessary to contribute to each MPO's separate planning process in order to have their regional concerns adequately considered. Public participation in transportation planning is critical to ensuring that the investment decisions meet the needs of the affected communities.

Further, a regional perspective is needed if metropolitan transportation planning is to maximize economic opportunities, while also addressing the externalities of growth such as congestion, air and water quality impacts, and impacts on resilience. The Secretary of Transportation believes, and FHWA and FTA concur, that joint decisionmaking is necessary in the multiple MPO situations to best ensure application of a regional perspective. Accordingly, this rulemaking addresses coordination and decisionmaking requirements for MPOs that are subject to the 23 U.S.C. 134(d)(7) exception to the one-MPO-per-MPA structure of the metropolitan planning statute.

The statewide planning statute calls for a continuing, cooperative, and comprehensive process for developing the statewide plan and the statewide transportation improvement program (STIP). 23 U.S.C. 135(a)(3). The statute requires States to develop the long range statewide plan and the STIP in cooperation with MPOs designated under 23 U.S.C. 134. 23 U.S.C. 135(f)(2)(A) and (g)(2)(A). While these statutes require that the State work in cooperation with the MPOs on long-range statewide transportation plans and STIPs, the extent to which MPO voices are heard varies significantly. The nature of decisionmaking authority of MPOs and States varies due to numerous factors, including the extent of local funding for transportation projects. The Secretary of Transportation believes that the voices of MPOs will be strengthened by having a single coordinated metropolitan transportation plan and TIP for each MPA, which should create a united position on transportation needs and priorities within that urbanized area. Ultimately, each relationship between State and MPO is unique, and there may not be a single coordination process that is appropriate for all areas of the country. However, it is the opinion of the Secretary of Transportation that there must be adequate cooperation between States and MPOs. The FHWA and FTA concur in those views, and therefore this proposed rule would require that States and MPOs demonstrate evidence of cooperation, including the existence of an agreed upon dispute resolution process.

The purpose of the Planning program is to use public funds effectively and FHWA and FTA welcome ideas to improve our planning processes. As such, FHWA and FTA seek comment on how DOT can incorporate processes to further ensure that Federal funds are used efficiency by States and MPOs. How can the Statewide and Non metropolitan and Metropolitan Transportation Planning process provide stronger incentives to States and MPOs to manage transportation funding more effectively?

The proposed rule would revise the definition of “metropolitan planning area” in § 450.104 to add language to align the definition with the basic statutory requirements for MPA boundaries. The purpose of the revision is to help reduce confusion about MPA requirements. The current definition describes the MPA as the geographic area determined by agreement between the MPO(s) for the area and the Governor. That definition does not include any reference to the minimum requirement in 23 U.S.C. 134(e)(2)(A) that the MPA must include the entire urbanized area and the contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan. The revised definition would add a description of the minimum requirement from the statute, and describe the 23 U.S.C. 134(e)(2)(B) option to include more than the minimum geographic area. The FHWA and FTA specifically ask for comments on whether the rule ought to expressly address how States and MPOs should determine MPA boundaries where two or more MPAs are contiguous or can be expected to be contiguous in the near future. For example, should the rule provide that such MPAs must merge? Alternatively, should the rule allow the States and MPOs to tailor the MPA boundaries and the 20-year urbanization forecast to take the proximity of other MPAs into account?

The term “Metropolitan Transportation Plan” is revised by changing the location and number of MPO references in the definition, and by adding a reference to the MPA. Similar changes are proposed for the definition of “Transportation Improvement Program” to make it clear the definition encompasses situations where multiple MPOs in an MPA work together to develop a unified TIP. The inclusion of new references to the MPA in the definitions clarifies that the Metropolitan Transportation Plan and the TIP are developed through the metropolitan transportation planning process for the entire MPA.

The proposed rule would strengthen and clarify expectations for State-MPO coordination, and would require metropolitan planning agreements to include coordination strategies and dispute resolution procedures. Section 450.208(a)(1) previously encouraged States to rely on MPO data and analysis for areas within the MPA; the rule would now require coordination between States and MPOs. This change is proposed to ensure States and MPOs employ consistent data, assumptions and other analytical materials when doing transportation planning; this does not affect roles and responsibilities for project prioritization. The section would be further amended by adding language to require the State and MPO to maintain a current planning agreement that includes a process for resolving disagreements. The metropolitan planning agreement, and its inclusion of strategies for coordination and the resolution of disagreements would be included among the other relevant documents considered by FHWA and FTA as part of their periodic determination under 23 U.S.C. 135(g)(8) whether the transportation planning process through which statewide transportation plans and programs are developed is consistent with 23 U.S.C. 134-135.

The proposed rule would change the reference to “MPO” to “MPO(s)” in two places. This is to more clearly recognize the possibility that multiple MPOs may be involved with the development of a single metropolitan TIP.

The proposed rule would provide a phase-in provision for the proposed requirement in 23 CFR 450.208(a)(1) that metropolitan planning agreement must include strategies for coordination and the resolution of disagreements. In proposed § 450.226(h), the rule would provide a phase-in period of 2 years after the publication date of a final rule. The compliance date for all other proposed changes in 23 CFR part 450, subpart A would be the effective date of the final rule. The FHWA and FTA seek comments on the appropriateness of the proposed 2-year phase-in period.

The proposed rule would add a reference to MPA in the first sentence in § 450.300(a). The addition makes it clear that an MPO carries out the planning process for its MPA. This change will enhance the consistency in the rule, maintaining the statutory focus on the MPO as carrying out planning for its MPA, of which one or more entire urbanized areas are a part.

The proposed rule would add a new paragraph to § 450.306(d). Where there are multiple MPOs for an MPA, the new provision would require the MPOs to jointly establish the MPA's performance targets under 23 CFR part 490 (where applicable), 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d). This requirement for a joint target-setting process would be consistent with the requirements established in the proposed rule for a joint metropolitan plan and TIP for the MPA shared by the MPOs. The FHWA and FTA request comments on the proposed language, and request ideas for alternatives that might better accomplish the goals embodied in the proposal. Those goals are to ensure performance targets appropriately reflect the needs and priorities of the MPA as a whole, and to avoid a situation where the MPOs within a single MPA select inconsistent or conflicting performance targets.

In paragraph (i), the proposed rule would change the reference from “MPO” to “MPO(s)” in the last sentence of the paragraph. This is to more clearly recognize the possibility that multiple MPOs may be involved with the development of an abbreviated plan or TIP using simplified procedures.

As provided in statute, some MPAs will necessarily be so large and complex that multiple MPOs are needed within the MPA. The proposed rule reflects the view, based on an interpretation of the planning statutes and on FHWA and FTA experiences, that when there are multiple MPOs within the same MPA, enhanced coordination and joint decisionmaking procedures are needed to ensure a coordinated and comprehensive planning process within the MPA. The proposed rule would revise § 450.310(e) by clarifying that more than one MPO can be designated for an MPA only when the Governor and MPO(s) determine it is warranted, in accordance with § 450.310(e). This change would reinforce the statutory principle that ordinarily only one MPO shall be designated for an MPA. The proposed rule retains the statutory standard permitting the designation of multiple MPOs within an MPA only if the Governor and existing MPO determine that the MPA's size and complexity necessitate multiple MPOs. Several references in the existing rule to “urbanized areas” would be replaced with “MPA” to better align with the statutory language.

The proposed rule would articulate in § 450.310(e) the limited exemption to the requirement of one MPO per MPA and the requirements applicable when multiple MPOs are designated within the same MPA. The case could arise that multiple MPOs that were previously designated will come to be located within the same MPA, either because this rule, once effective, will require some Governors and MPOs to reevaluate the bounds of MPAs, or due to the future merger of urbanized areas following a Decennial Census. In those situations, paragraph (e) provides that the Governor and MPOs would have to determine whether the size and complexity of the MPA warrant the designation of multiple MPOs.

The statute envisions a single MPO per MPA, with the exception that more than one MPO may be designated only if the Governor and existing MPO determine that the size and complexity of the metropolitan planning area make the designation of multiple MPOs appropriate. However, because of the past practice of many MPOs and Governors treating the term MPA as essentially synonymous with the territory of any particular MPO, many MPOs are not in compliance with the statute. This rule would require some MPOs and Governors to conceptualize for the first time the bounds of the MPAs as geographically distinct from the jurisdictional boundaries of the MPOs. Accordingly, for any MPOs that newly share an MPA with one or more other MPOs as a result of this rulemaking enforcing the statutory definition of MPA, the affected MPOs and Governor must make a determination that the MPA is of a size and complexity that makes multiple MPOs appropriate, or must merge the MPOs in MPAs where the Governor and MPOs determine that the size and complexity do not make multiple MPOs appropriate.

If the Governor and MPOs determine that multiple MPOs are not warranted based on the size and complexity of the MPA, those MPOs would have to merge and follow the redesignation procedures in § 450.310(h). Where it is determined that multiple MPOs are warranted, coordination still would be required among the MPOs in the affected MPA under the rule, with revisions to emphasize that the MPOs would jointly develop a unified plan, TIP, and performance targets for the entire MPA. The MPOs still would be required to establish official, written agreements that clearly identify areas of coordination, the division of transportation planning responsibilities among and between the MPOs, and procedures for joint decisionmaking and the resolution of disagreements—all for and within the affected MPA. Together with the Governor, those MPOs would jointly establish the MPO boundaries within the MPA.

The proposed rule would change a reference to “entire MPA” in paragraph (m), concerning coordination in multistate metropolitan areas, to “entire metropolitan area.” The FHWA and FTA believe “metropolitan area” is consistent with “multistate metropolitan area” and more clearly conveys the intent of the paragraph.

The proposed rule would reorganize, and make technical edits to, existing § 450.312. The proposed rule would add or clarify requirements through revisions in paragraphs (c), (f), (h), and (i).

The proposed rule would reorganize § 450.312(a) by switching the order of the first two sentences. The proposed rule would move certain references to “MPA” and add language in proposed § 450.312(a)(1) to clarify and emphasize that an agreement between the Governor and an MPO concerning the boundaries of an MPA is subject to the minimum requirement that the MPA contain the entire existing urbanized area plus the contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan. The proposed rule also adds a new § 450.312(a)(2) to clarify that when MPOs are contiguous to the same non-urbanized area that is expected to become urbanized within a 20-year forecast period for the transportation plan, they must agree on their mutual MPA boundaries so that their boundaries do not overlap.

Section 450.312(b) would be reorganized. Section 450.312(b) and (c) would be edited for consistency with the requirement that an MPA contain an urbanized area in its entirety.

Section 450.312(f) would be revised to more closely align with the language of 23 U.S.C. 134(f). That provision calls for the Secretary to encourage the Governors and MPOs in a multistate metropolitan area to coordinate transportation planning across the entire metropolitan area. The FHWA and FTA concluded the statute's use of the term “metropolitan area,” rather than the statutorily-defined term “MPA,” reflects an intention to promote coordinated planning across a broader area than a single MPA. This interpretation takes into consideration the plain language meaning of “metropolitan area.” as well as the historical use of the term by the Federal Government.3 The type of coordination called for in 23 U.S.C. 134(f), as reflected in the proposed revisions to § 450.312(f), reaches beyond MPAs to include not only the core urban areas but also outlying areas that are economically and socially integrated with the urban areas. The proposed rule also would add language describing the compact authority contained in 23 U.S.C. 134(f).

Section 450.312(h) would be entirely rewritten for consistency with the proposed rule's emphasis on the statutory requirement that all of an urbanized area be contained in the same MPA. As proposed, § 450.312(h) would describe the organizational options available to Governors and MPOs where more than one MPO is designated in an MPA, as authorized by the exception in 23 U.S.C. 134(d)(7). Proposed § 450.312(h)(1) through (3) would describe minimum requirements applicable where the multiple MPOs exist in a single MPA. The three requirements would be (1) a written agreement among the MPOs to identify how planning decisions will be made and carried out, (2) use of joint decisionmaking to develop a single metropolitan transportation plan and TIP for the entire MPA, and (3) establishment of the boundaries for each MPO within the MPA by agreement of the Governor and the affected MPOs.

The proposed rule would revise § 450.312(i), which addresses reviews of MPA boundaries after each Census. The changes would include clarifying that the minimum requirements for MPAs apply in this situation. Following a Decennial Census, the MPO(s) are required to review the MPA boundaries to ensure compliance with the minimum statutory requirements. This includes changes in urbanized areas that result in the merging of previously separate urbanized areas, or expansion of urbanized areas into a neighboring MPA. Under the proposed rule, if a Census results in two previously separate urbanized areas being defined as a single urbanized area, the Governor and MPO(s) would have to redetermine the affected MPAs as a single MPA that includes the entire new urbanized area plus the contiguous area expected to become urbanized within a 20-year forecast period of the transportation plan. The MPOs may remain separate only if the Governor and MPOs determine that the size and complexity of the MPA make it appropriate to have multiple MPOs designated for the area, as described in 23 U.S.C. 134(d)(7). This paragraph also clarifies the responsibilities when two or more MPOs may be adjacent to the same non-urbanized area that is expected to become urbanized within a 20-year forecast period for the transportation plan, or when an urbanized area expands into a neighboring MPA. In these situations, the Governor and MPOs are encouraged to merge adjacent MPAs when urbanized areas are contiguous or when the urbanized areas are expected to become contiguous within a 20-year forecast period for the transportation plan, but they must at a minimum agree on their mutual MPA boundaries. This paragraph also establishes a timeline for compliance following a Decennial Census that results in the merger of two or more previously separate MPAs.

The proposed rule would add a new paragraph—§ 450.312(j)—which would enumerate the situations in which a Governor and MPOs are encouraged to merge multiple MPAs into a single MPA, including when multiple urbanized areas are directly adjacent to each other, when they are expected to grow to become adjacent within 20 years, or when they are adjacent to the same non-urbanized area that is expected to become urbanized within 20 years.

The proposed rule would change a reference in the renumbered § 450.312(k) from “MPO” to “MPO(s)” for consistency with other proposed changes.

The proposed rule would change several references in § 450.314 from “MPO” to “MPO(s)” for consistency with other proposed changes in the rule.

The proposed rule would make several changes to § 450.314(e). The rule would change “an urbanized area” in the first sentence to “an MPA,” to better reflect the statutory relationship between MPOs, MPAs, and urbanized areas. The sentence would also be changed to require development of a single metropolitan transportation plan and TIP for an MPA. Where a proposed transportation investment extends across the boundaries of more than one MPA, the proposed rule would require MPOs to coordinate to assure the development of consistent metropolitan transportation plans and TIPs. This would replace language in the existing rule that calls for consistent plans and TIPs across the MPA. The proposed rule would require, rather than encourage, the use of coordinated data collection, analysis, and planning assumptions across the MPA. The proposed rule would strongly encourage the use of such practices across neighboring MPOs that are not within the same MPA. The FHWA and FTA seek comments on what, if any, exemptions ought to be contained in the rule from these requirements, and what criteria might be used for such an exemption.

The proposed rule would eliminate the phrase “urbanized area” from § 450.314(f), concerning multistate MPAs, and change existing references from “multistate area” to “multistate MPA.” These changes will make the provision more consistent with the planning statute and other proposed changes in the rule.

Under the proposed rule, § 450.314(g) would be revised for consistency with the statutory requirement that all of an urbanized are be included within the same MPA. The proposed rule would clarify that the rule's existing requirement for a written agreement on roles and responsibilities for meeting transportation management area (TMA) requirements applies where more than one MPO serve the MPA containing the TMA.

Similar changes would be made in § 450.314(h), to clarify that the cooperative development and sharing of information related to performance management applies when an MPA includes an urbanized area that has been designated as a TMA as well as an urbanized area that is not a TMA.

The proposed rule would revise § 450.316(b), (c), and (d) by changing references from “MPO” to “MPO(s).” These changes would make the references consistent with other changes proposed in this rule.

References to “MPO” in several parts of § 450.324 would be changed to “MPO(s)” for consistency with other proposed changes to the rule. The proposed rule would redesignate the current § 450.3249(c) through (m) as § 450.324(d) through (n), respectively, and add a new paragraph (c). The new provision would require that, if more than one MPO has been designated to serve an MPA, those MPOs within the MPA shall (1) jointly develop a single metropolitan transportation plan for the MPA; (2) jointly establish, for the MPA, the performance targets that address the performance measures described in 23 CFR part 490 (where applicable), 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d); and (3) agree to a process for making a single conformity determination on the joint plan (in nonattainment or maintenance areas). The FHWA and FTA seek comments on what, if any, exemptions ought to be contained in the rule from these requirements, and what criteria might be used for such an exemption. The FHWA and FTA also request comments on the question whether additional changes are needed in FHWA and FTA regulations on performance measures and target setting (e.g., 23 CFR part 490) to cross-reference this new planning provision on target-setting.

The proposed rule would add a sentence to § 450.326(a) to require that in MPAs with multiple MPOs the MPOs must jointly develop a single TIP for the MPA. The rule would require such MPOs, if in nonattainment or maintenance areas, to agree on a process for making a single conformity determination on the joint TIP. The FHWA and FTA seek comments on what, if any, exemptions ought to be contained in the rule from these requirements, and what criteria might be used for such an exemption.

The proposed rule would change “MPO” to “MPO(s)” in paragraphs (a), (b), (j), and (p). Those changes would be made for better consistency with other changes proposed in the rulemaking.

The proposed rule would change “MPO” to “MPO(s)” in § 450.328(a), (b), and (c). The changes would be made for better consistency with other changes proposed in the rule.

The proposed rule would change “MPO” to “MPO(s)” in § 450.330(a) and (c). Section 450.330(c) would be clarified by changing the first part of the first sentence from “[i]f an MPO has not . . .”, to “[i]f an MPO or MPOs have not . . .” All these changes are for better consistency with proposed revisions in other parts of the rule concerning how planning requirements apply where there are multiple MPOs in an MPA provisions, as authorized by the exception provision in 23 U.S.C. 134(d)(7).

The proposed rule would change “MPO” to “MPO(s)” in § 450.332(b) and (c), for better consistency with other changes proposed in the rule.

The proposed rule would change “MPO” to “MPO(s)” in § 450.334(a), for better consistency with other changes proposed in the rulemaking.

The proposed rule would change “MPO” to “MPO(s)” in several places in § 450.336(b), for better consistency with other changes proposed in the rule.

The proposed rule would add phase-in implementing provisions to § 450.340 for certain parts of the proposed rule. The compliance date for all other proposed changes would be the effective date of the final rule.

In a new paragraph (h), FHWA and FTA propose giving States and MPOs 2 years before they would have to be fully compliant with the MPA boundary and MPO boundaries agreement provisions in §§ 450.310 and 450.312, and with the requirements for jointly established performance targets and a single metropolitan transportation plan and TIP for the entire MPA. The proposed rule would require the Governor and MPOs to document their determination of whether the size and complexity of the MPA justify the designation of multiple MPOs, however, the decision would not be subject to approval by FHWA and FTA. Full compliance for all MPOs within the MPA would be required before the earliest next regularly scheduled update of a metropolitan transportation plan for any MPO within the MPA, following the second anniversary of the effective date of a final rule, if adopted. The FHWA and FTA seek comment on the appropriateness of the proposed 2-year phase-in period.

All comments received before the close of business on the comment closing date indicated above will be considered and available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and considered to the extent practicable. In addition to late comments, FHWA and FTA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period and after FHWA and FTA have had the opportunity to review the comments submitted.

The FHWA and FTA have determined that this proposed rule is a significant regulatory action within the meaning of Executive Order 12866 and within the meaning of DOT regulatory policies and procedures. This proposed regulation seeks to improve the clarity of the planning rules by addressing ambiguity in MPO boundaries and responsibilities and better aligning the regulations with the statute. Additionally, the MPOs shall establish procedures for joint decisionmaking as well as a process for resolving disagreements. These changes are also intended to result in better outcomes for the MPOs, State agencies, providers of public transportation and the public, by restoring a regional focus for metropolitan planning, and by unifying MPO processes within an urbanized area in order to improve the ability of the public to understand and participate in the transportation planning process. The joint planning requirements of this rule affect primarily urbanized areas with multiple MPOs planning for the same area, or 142 of the 409 MPOs in the country. The affected MPOs are: (1) MPOs that have been designated for an urbanized area for which other MPOs also have been designated and/or (2) MPOs where an adjacent urbanized area has spread into its MPA boundary. The MPOs designated as an MPO in multiple MPAs, in which one or more other MPOs are also designated, would be required to participate in the planning processes for each MPA. Thus, under this rule, MPOs that have jurisdiction in more than one MPA would be required to participate in multiple separate planning processes. However, the affected MPOs could exercise several options to reduce or eliminate these impacts, including adjustment of MPA boundaries to eliminate overlap and by merging MPOs. The FHWA and FTA are seeking comments on what other options affected MPOs could exercise to reduce the overlap while meeting the statutory and regulatory requirements. The FHWA and FTA expect that such responses will reduce the number of MPOs ultimately affected by these coordination requirements.

All MPOs will be required to review their agreements with State DOTs and providers of public transportation to ensure that there are written procedures for joint decisionmaking and dispute resolution. The FHWA and FTA expect that the MPOs, State DOTs and providers of public transportation will undertake this review and update as they identify how they will implement a performance based planning and programming process required by MAP-21 and revised Statewide and Nonmetropolitan Transportation and Metropolitan Transportation Final Rule (FHWA RIN: 2125-AF52; FTA RIN: 2132-AB10). Because FHWA and FTA anticipate that the reviews would occur due to other existing requirements and in the absence of the proposed rule, the incremental impact, to the extent that there is any, should be quite small.

In some cases, a Governor (or Governors in the case of multistate urbanized areas) and MPOs could determine that the size and complexity of the area make multiple MPOs appropriate. The proposed rule would require those multiple separate MPOs to jointly develop unified planning products: A single metropolitan transportation plan, a single TIP, and a jointly established set of performance targets for the MPA. This should not create a large burden, and will in some cases reduce overall planning costs. Because MPOs within the same urban area will produce single planning documents, there will be less overlapping and duplicative work. Thus, the rule will enhance efficiency in planning processes for some areas, and generate cost-savings due to creating single rather than multiple documents as well as through pooling of resources and sharing data, models, and other tools. However, the MPOs that are not accustomed to coordinating across boundaries will have to establish relationships and protocols, and reconcile procedures. Coordination could create some initial costs, but those will diminish over time. There is also expected to be some offsetting costs for State DOTs and MPOs due to the necessity of updating metropolitan planning agreements to include dispute resolution processes. These costs are expected to be primarily experienced in the initial year, as processes are developed.

To the extent that there are any costs, 80 percent are directly reimbursable through Federal transportation funds allocated for metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 5303(h)) and for State planning and research (23 U.S.C. 505 and 49 U.S.C. 5313). Thus, the costs to the affected MPOs should be minimal.

The FHWA and FTA also expect there will be some cost savings for State DOTs, which will benefit from having fewer TIPs to incorporate into their STIPs. There will also be benefits to the public if the coordination requirements result in a planning process in which public participation opportunities are transparent and unified for the entire region, and if members of the public have an easier ability to engage in the planning process.

The FHWA and FTA seek comments and available data on the costs and benefits of the proposals of this rulemaking.

In addition, this action complies with the principles of Executive Order 13563. After evaluating the costs and benefits of these proposed amendments, the FHWA and FTA anticipate that the net economic impact of this rulemaking would be minimal. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these changes will not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA and FTA have evaluated the effects of this action on small entities and have determined that the action would not have a significant economic impact on a substantial number of small entities. The proposed amendment addresses the obligation of Federal funds to State DOTs for Federal-aid highway projects. The proposed rule affects two types of entities: State governments and MPOs. State governments do not meet the definition of a small entity under 5 U.S.C. 601, which have a population of less than 50,000.

The MPOs are considered governmental jurisdictions, and to qualify as a small entity they would need to serve less than 50,000 people. The MPOs serve urbanized areas with populations of 50,000 or more. Therefore, the MPOs that might incur economic impacts under this proposed rule do not meet the definition of a small entity.

I hereby certify that this regulatory action would not have a significant impact on a substantial number of small entities.

The FHWA and FTA have determined that this NPRM does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This proposed rule does not include a Federal mandate that may result in expenditures of $155.1 million or more in any one year (when adjusted for inflation) in 2012 dollars for either State, local, and tribal governments in the aggregate, or by the private sector. The FHWA and FTA will publish a final analysis, including its response to public comments, when it publishes a final rule. Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program and Federal Transit Act permits this type of flexibility.

The FHWA and FTA have analyzed this NPRM in accordance with the principles and criteria contained in Executive Order 13132. The FHWA and FTA have determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA and FTA have also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. The DOT has analyzed this proposed rule under the PRA and has determined that this proposal does not contain collection of information requirements for the purposes of the PRA.

Federal agencies are required to adopt implementing procedures for National Environmental Policy Act (NEPA) that establish specific criteria for, and identification of, three classes of actions: (1) Those that normally require preparation of an Environmental Impact Statement, (2) those that normally require preparation of an Environmental Assessment, and (3) those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This action qualifies for categorical exclusions under 23 CFR 771.117(c)(20) (promulgation of rules, regulations, and directives) and 771.117(c)(1) (activities that do not lead directly to construction) for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative activities which do not involve or lead directly to construction) for FTA. The FHWA and FTA have evaluated whether the action would involve unusual or extraordinary circumstances and have determined that this action would not.

The FHWA and FTA have analyzed this proposed rule under Executive Order (E.O.) 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA and FTA do not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under E.O. 12630.

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

We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA and FTA certify that this action would not cause an environmental risk to health or safety that might disproportionately affect children.

The FHWA and FTA have analyzed this action under E.O. 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. The proposed rulemaking addresses obligations of Federal funds to State DOTs for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required.

The FHWA and FTA have analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA and FTA have determined that this is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

The E.O. 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) and DOT Order 5610.2(a) (77 FR 27534, May 10, 2012) (available online at http://www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm) require DOT agencies to achieve Environmental Justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority and low-income populations. The DOT agencies must address compliance with E.O. 12898 and the DOT Order in all rulemaking activities.

The FHWA and FTA have issued additional documents relating to administration of E.O. 12898 and the DOT Order. On June 14, 2012, FHWA issued an update to its EJ order, FHWA Order 6640.23A (FHWA Actions to Address Environmental Justice in Minority Populations and Low Income Populations (available online at http://www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm)). On August 15, 2012, FTA's Circular 4703.1 became effective, which contains guidance for States and MPOs to incorporate EJ into their planning processes (available online at http://www.fta.dot.gov/documents/FTA_EJ_Circular_7.14-12_FINAL.pdf).

The FHWA and FTA have evaluated the final rule under the Executive order, the DOT Order, the FHWA Order, and the FTA Circular. The EJ principles, in the context of planning, should be considered when the planning process is being implemented at the State and local level. As part of their stewardship and oversight of the federally aided transportation planning process of the States, MPOs and operators of public transportation, FHWA and FTA encourage these entities to incorporate EJ principles into the statewide and metropolitan planning processes and documents, as appropriate and consistent with the applicable orders and the FTA Circular. When FHWA and FTA make a future funding or other approval decision on a project basis, they consider EJ.

Nothing inherent in the proposed rule would disproportionately impact minority or low-income populations. The proposed rule establishes procedures and other requirements to guide future State and local decisionmaking on programs and projects. Neither the proposed rule nor 23 U.S.C. 134 and 135 dictate the outcome of those decisions. The FHWA and FTA have determined that the proposed rule would not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.

A Regulation Identifier Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

In consideration of the foregoing, FHWA and FTA propose to amend title 23, Code of Federal Regulations, part 450, and title 49, Code of Federal Regulations, part 613, as set forth below:

The revision reads as follows:

The revisions read as follows:

The revision reads as follows:

Instructions: All submissions for the proposed rule must include RIN 1219-AB87 or Docket No. MSHA-2014-0030. MSHA posts all comments without change, including any personal information provided. Access comments electronically on http://www.regulations.gov and on MSHA's Web site at https://www.msha.gov/regulations/rulemaking.

Docket: The proposed rule for Examinations of Working Places in Metal and Nonmetal Mines was published on June 8, 2016 (81 FR 36818). The document is available on https://www.regulations.gov and on MSHA's Web site at https://www.msha.gov/regulations/rulemaking/examinations-working-places-metal-and-nonmetal-mines. Review comments in person at the Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E401, Arlington, Virginia 22202-5452. Sign in at the receptionist's desk on the 4th Floor East, Suite 4E401.

Email Notification: To subscribe to receive email notification when MSHA publishes rulemaking documents in the Federal Register, go to https://www.msha.gov.

Public Hearings: As previously announced on June 8, 2016 (81 FR 36818), the public hearings will be held in Salt Lake City, UT; Pittsburgh, PA; Arlington, VA; and Birmingham, AL. Please see the table below for locations, dates, and new starting times.

The start time for the previously announced public hearings for the proposed is being changed from 9:00 a.m. to 8:30 a.m. to accommodate the public meetings on MSHA's request for information on Exposure of Underground Miners to Diesel Exhaust. The hearings will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. Each hearing will end when the last speaker speaks. Persons do not have to make a written request to speak; however, persons wishing to speak are encouraged to notify MSHA in advance for scheduling purposes.

Speakers and other attendees may present information to MSHA for inclusion in the rulemaking record. The hearings will be conducted in an informal manner. Formal rules of evidence or cross examination will not apply.

A verbatim transcript of the proceedings will be prepared and made a part of the rulemaking record. The transcript may be viewed at https://www.regulations.gov/ and on MSHA's Web site at https://www.msha.gov/regulations/rulemaking.

MSHA will accept comments and other appropriate information for the record from any interested party, including those not presenting oral statements, received by midnight Eastern Daylight Savings Time on September 6, 2016.

Instructions: All submissions for the request for information must include RIN 1219-AB86 or Docket No. MSHA-2014-0031. MSHA posts all comments without change, including any personal information provided. Access comments electronically on http://www.regulations.gov and on MSHA's Web site at https://www.msha.gov/regulations/rulemaking.

Docket: The request for information on Exposure of Underground Miners to Diesel Exhaust (81 FR 36826) was published on June 8, 2016. The document is available on https://www.regulations.gov and on MSHA's Web site at https://www.msha.gov/regulations/rulemaking/exposure-underground-miners-diesel-exhaust. Review comments in person at the Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E401, Arlington, Virginia 22202-5452. Sign in at the receptionist's desk on the 4th floor East, Suite 4E401.

Email Notification: To subscribe to receive email notification when MSHA publishes rulemaking documents in the Federal Register, go to https://www.msha.gov.

Public Meetings: The public meetings will be held in Salt Lake City, UT; Pittsburgh, PA; Arlington, VA; and Birmingham, AL. Please see the table below for locations, and dates. The public meetings will begin immediately following the conclusion of all testimony on the Examinations of Working Places in Metal and Nonmetal Mines proposed rule.

MSHA invites industry, labor and other interested parties to provide information and data on the effectiveness of the existing standards in controlling miners' exposures to diesel exhaust, including Diesel Particulate Matter (DPM). MSHA especially invites stakeholders to provide information and data on approaches that may enhance control of DPM and diesel exhaust exposures to improve protections for miners in underground coal and metal and nonmetal mines.

The public meetings will begin immediately following the conclusion of all testimony on the Examinations of Working Places in Metal and Nonmetal Mines proposed rule and conclude at 5 p.m., or until the last speaker speaks.

The meetings will be conducted in an informal manner. Speakers and other attendees may present information to MSHA for inclusion in the rulemaking record. The verbatim transcript may be viewed at https://www.regulations.gov/ and on MSHA's Web site at: https://www.msha.gov/regulations/rulemaking.

Comments must be received by midnight Eastern Daylight Savings Time on September 6, 2016.

Background and Purpose

We published an advance notice of proposed rulemaking (ANPRM) in the Federal Register on April 19, 2016 (81 FR 22939), entitled “Anchorage Grounds; Lower Chesapeake Bay, Cape Charles, VA.” In it we stated our intention to hold two public meetings, and to publish a notice announcing the location and date (81 FR 22940). This document is the notice of that meeting.

In the ANPRM, we stated that the Coast Guard is considering amending the regulations for Hampton Roads, VA and adjacent waters anchorages by establishing a new anchorage, near Cape Charles, VA on the Lower Chesapeake Bay.

You may view the ANPRM in our online docket, in addition to supporting documents prepared by the Coast Guard (Illustration Contemplated Anchorage R), and comments submitted thus far by going to http://www.regulations.gov. Once there, insert “USCG-2015-1118” in the “Search” box and click “Search.”

We encourage you to participate in this rulemaking by submitting comments either orally at the meeting or in writing. If you bring written comments to the meeting, you may submit them to Coast Guard personnel specified at the meeting to receive written comments. These comments will be submitted to our online public docket. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

Comments submitted before or after the meetings must reach the Coast Guard on or before Wednesday, August 31, 2016. We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the March 24, 2005, issue of the Federal Register (70 FR 15086).

The agenda includes the following:

(1) Introduction of panel members.

(2) Overview of meeting format.

(3) Background on proposed anchorage regulation.

(4) Comments from interested persons. Comments may be delivered in written form at the public meeting and made part of the docket or delivered orally not to exceed 10 minutes.

For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact LCDR Barbara Wilk at the telephone number or email address indicated under the FOR FURTHER INFORMATION CONTACT section of this document.

The Coast Guard will hold a public meeting regarding its “Anchorage Grounds; Lower Chesapeake Bay, Cape Charles, VA” advance notice of proposed rulemaking on Tuesday, July 19, 2016, from 6 p.m. to 7:30 p.m. at Slover Public Library Meeting Room, 235 E. Plume St., Norfolk, VA 23510, telephone 757-617-7986. The public meeting on July 20, 2016, from 6:30 p.m. to 8 p.m. will be held at Eastern Shore Community College Lecture Hall, 29300 Lankford Highway, Melfa, VA, 23410. A written summary of the meeting and comments will be placed in the docket.

I. Background and Overview

On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.1

Today's action is proposing to approve Kentucky's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO2 NAAQS, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J), the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility of prongs 1, 2 and 4 of section 110(a)(2)(D)(i) and the regulation of minor sources and minor modifications under section 110(a)(2)(C). On March 18, 2015, EPA approved Kentucky's April 26, 2013, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. See 80 FR 14019. Therefore, EPA is not proposing any action pertaining to these requirements. With respect to Kentucky's infrastructure SIP submission related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i) and the regulation of minor sources and minor modifications under section 110(a)(2)(C), EPA is not proposing any action today. EPA will act on these provisions in a separate action. For the aspects of Kentucky's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Kentucky's already approved SIP meets certain CAA requirements.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO2 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2).” 2

EPA is acting upon the SIP submission from Kentucky that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO2 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.5 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.8 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.10

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.11 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).12 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.13 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.14 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.15 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.16 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.17

Kentucky's infrastructure submission addresses the provisions of sections 110(a)(1) and (2) in Kentucky Administrative Regulations (KAR), Title 401, and Kentucky Revised Statutes (KRS) as described below.

1. 110(a)(2)(A): Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. Kentucky's infrastructure SIP submission lists several regulations as relevant to air quality control regulations in KAR 50 to 52. Specifically, Regulation 50:010-066 deal with general administrative procedures. Emission limits and other control measures, means, and techniques as well as schedules and timetables for the 2010 1-hour NO2 NAAQS are found in Regulation 51, Attainment and Maintenance of the National Ambient Air Quality Standards, and Regulation 52, Permits, Registrations, and Prohibitory Rules. EPA has made the preliminary determination that the cited provisions are adequate to protect the 2010 1-hour NO2 NAAQS in the Commonwealth.

In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.18

Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: SIPs are required to provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. KRS 22:10-100, and KAR 50:050, 51:017 and 052, and 53:005 and 010, provide KDAQ with the authority to collect and disseminate information relating to air quality and pollution and the prevention, control, supervision, and abatement thereof. Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan and a certified evaluation of the state's ambient monitors and auxiliary support equipment.19 On July 1, 2015, Kentucky submitted its monitoring network plan to EPA, and on October 28, 2015, EPA approved this plan. Kentucky's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0767. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2010 1-hour NO2 NAAQS.

3. 110(a)(2)(C) Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). EPA approved the PSD component in a previous action and will act on state-wide regulation of new and modified minor sources and minor modifications of major sources in a separate action. Today's action on element C is solely on enforcement.

Enforcement: KDAQ's approved SIP Regulation 50:060, Enforcement, provides for enforcement of emission limits and control measures and construction permitting for new or modified stationary sources. EPA has made the preliminary determination that Kentucky's SIP is adequate for insuring compliance with the applicable requirements relating to enforcement for section 110(a)(2)(C) for the 2010 1-hour NO2 NAAQS.

Preconstruction PSD Permitting for Major Sources: With respect to Kentucky's April 26, 2013, infrastructure SIP submission related to the PSD permitting requirements for major sources of section 110(a)(2)(C), EPA took final action to approve these provisions for the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019.

Regulation of Minor Sources and Modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source preconstruction program that regulates emissions of the 2010 1-hour NO2 NAAQS. EPA is not proposing any action in this rulemaking related to the regulation of minor sources and minor modifications under section 110(a)(2)(C) and will consider these requirements in relation to Kentucky's 2010 1-hour NO2 NAAQS infrastructure submission in a separate rulemaking.

4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components have two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because Kentucky's 2010 1-hour NO2 NAAQS infrastructure submission did not address prongs 1 and 2.

110(a)(2)(D)(i)(II)—prong 3: With respect to Kentucky's infrastructure SIP submission related to the interstate transport requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took final action to approve Kentucky's April 26, 2013, infrastructure SIP submission regarding prong 3 of D(i) for the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019.

110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation to Kentucky's 2010 1-hour NO2 NAAQS infrastructure submission in a separate rulemaking.

5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and International Air Pollution: With respect to 110(a)(2)(D)(ii), Regulation 52:100, Section 6, Public, Affected State, and U.S. EPA Review, outlines how Kentucky will notify neighboring states of potential impacts from new or modified sources. EPA is unaware of any pending obligations for the Commonwealth of Kentucky pursuant to sections 115 or 126 of the CAA. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for insuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2010 1-hour NO2 NAAQS.

6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state Boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve Kentucky's SIP as meeting the requirements of sections 110(a)(2)(E). EPA's rationale for today's proposals respecting each section of 110(a)(2)(E) is described in turn below.

To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), Kentucky's infrastructure SIP submission describes that KRS 224:10-100, Powers and Duties of the Cabinet, and KAR 50:038, Air Emissions Fees, provide KDAQ with the authority to accept and administer laws and grants from the federal government and from other sources, public and private, for carrying out any of its functions, including its responsibility to implement its SIP. As evidence of the adequacy of KDAQ's resources, EPA submitted a letter to Kentucky on March 12, 2015, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2014. The letter EPA submitted to Kentucky can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0767. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Kentucky satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2014 therefore Kentucky's grants were finalized. EPA has made the preliminary determination that Kentucky has adequate resources and authority for implementation of the 2010 1-hour NO2 NAAQS.

Section 110(a)(2)(E)(ii) requires that states comply with section 128 of the CAA. Section 128 of the CAA requires that states include provisions in their SIP to address conflicts of interest for state boards or bodies that oversee CAA permits and enforcement orders and disclosure of conflict of interest requirements. Specifically, CAA section 128(a)(1) necessitates that each SIP shall require that at least a majority of any board or body which approves permits or enforcement orders shall be subject to the described public interest service and income restrictions therein. Subsection 128(a)(2) requires that the members of any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements. For purposes of section 128(a)(1), Kentucky has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by the Secretary of the KDAQ. As such, a “board or body” is not responsible for approving permits or enforcement orders in Kentucky, and the requirements of section 128(a)(1) are not applicable. For purposes of section 128(a)(2), KDAQ's SIP has been updated. On October 3, 2012, EPA finalized approval of Kentucky's July 17, 2012, SIP revision requesting incorporation of KRS 11A.020, 11A.030, 11A.040 and KRS 224.10-020 and 224.10-100 into the SIP to address the conflicts of interest disclosure requirements of section 128(a)(2). See 77 FR 60307. With the incorporation of these regulations into the Kentucky SIP, EPA has previously made the determination that the Commonwealth has adequately addressed the requirements of section 128(a)(2), and accordingly is proposing to determine that Kentucky has met the infrastructure SIP requirements of section 110(a)(2)(E)(ii). Therefore, EPA is proposing to approve KDAQ's SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).

7. 7. 110(a)(2)(F) Stationary Source Monitoring System: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. The Kentucky infrastructure submission describes how the major source and minor source emission inventory programs collect emission data throughout the Commonwealth and ensure the quality of such data. Kentucky meets these requirements through Chapter 50 General Administrative Procedures, specifically 401 KAR 50:050 Monitoring. 401 KAR 50:050, Section 1, Monitoring Records and Reporting, states that the cabinet may require a facility to install, use, and maintain stack gas and ambient air monitoring equipment and to establish and maintain records, and make periodic emission reports at intervals prescribed by the cabinet. 401 KAR 50:050 Monitoring, Section 1, Monitoring, Records, and Reporting, establishes the requirements for the installation, use, and maintenance of stack gas and ambient air monitoring equipment, and authorizes the cabinet to require the owner or operator of any affected facility to establish and maintain records for this equipment and make periodic emission reports at intervals prescribed by the cabinet. Also, KRS 224.10-100 (23) requires that any person engaged in any operation regulated pursuant to this chapter file with the cabinet reports containing information as to location, size, height, rate of emission or discharge, and composition of any substance discharged or emitted into the ambient air or into the waters or onto the land of the Commonwealth, and such other information the cabinet may require. The monitoring data collected and records of operations serve as the basis for a source to certify compliance, and can be used by Kentucky as direct evidence of an enforceable violation of the underlying emission limitation or standard. Thus, EPA is unaware of any provision preventing the use of credible evidence in the Kentucky SIP.

Additionally, Kentucky is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—NOX, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Kentucky made its latest update to the 2011 NEI on December 23, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for the stationary source monitoring systems related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(F).

8. 110(a)(2)(G) Emergency Powers: This section requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. Kentucky's infrastructure SIP submission identifies air pollution emergency episodes and preplanned abatement strategies as outlined in Regulation 55:005, Significant Harm Criteria. Regulation 55:010, Episodic Criteria, defines pollutant concentration levels that justify the proclamation of an air pollutant alert, warning, or emergency while Regulation 55:015, Episode Declaration, authorizes KDAQ to curtail or reduce processes or operations that emit air pollutants whose criteria has been reached and are located in the affected areas for which an episode level has been declared. Conditions justifying the proclamation of an air pollution alert, air pollution warning, or air pollution emergency shall be deemed to exist whenever the Cabinet determines that the accumulation of air contaminants in any place is attaining or has attained levels which could, if such levels are sustained or exceeded, present a threat to the health of the public. In addition, KRS 224.10-100 Powers and duties of cabinet and KRS 224.10-410 Order for discontinuance, abatement, or alleviation of condition or activity without hearing—Subsequent hearing, establish the authority for Kentucky's secretary to issue orders to person(s) for discontinuance, abatement, or alleviation of any condition or activity without hearing because the condition or activity presents a danger to the health or welfare of the people of the state, and for the cabinet to require adoption of any remedial measures deemed necessary. EPA has made the preliminary determination that Kentucky's SIP, and state laws are adequate for emergency powers related to the 2010 1-hour SO2 NAAQS. EPA has made the preliminary determination that Kentucky's SIP and practices are adequate for emergency powers related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submissions with respect to section 110(a)(2)(G).

9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan (i) as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. KDAQ has the authority for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in Kentucky, as indicated in Regulations 51.010, Attainment Status Designations, 53.005, General Provisions, and 53:010, Ambient Air Quality Standards. KDAQ has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS. It also has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS. Kentucky does not have any nonattainment areas for the 2010 1-hour NO2 NAAQS but has made an infrastructure submission for this standard, which is the subject of this rulemaking. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate a commitment to provide future SIP revisions related to the 2010 1-hour NO2 NAAQS when necessary.

10. 110(a)(2)(J) Consultation With Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve Kentucky's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127; and visibility protection requirements of part C of the Act. With respect to Kentucky's infrastructure SIP submission related to the preconstruction PSD permitting requirements of section 110(a)(2)(J), EPA took final action to approve Kentucky's April 26, 2013, 2010 1-hour NO2 NAAQS infrastructure SIP for these requirements on March 18, 2015. See 80 FR 14019. EPA's rationale for its proposed action regarding applicable consultation requirements of section 121, the public notification requirements of section 127, and visibility protection requirements is described below.

110(a)(2)(J) (121 Consultation)—Consultation With Government Officials: Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. Regulations 50:065, Conformity of General Federal Actions, 50:066, Conformity of Transportation Plans, Programs, and Projects, as well as Kentucky's Regional Haze Implementation Plan (which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. Kentucky adopted state-wide consultation procedures for the implementation of transportation conformity. Implementation of transportation conformity as outlined in the consultation procedures requires KDAQ to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets for the SIP. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour NO2 NAAQS when necessary.

110(a)(2)(J) (127 Public Notification)—Public Notification: These requirements are met through Regulation 55:015, Episode Declaration, which requires that KDAQ notify the public of any air pollution alert, warning, or emergency. The KDAQ Web site also provides air quality summary data, air quality index reports and links to more information regarding public awareness of measures that can prevent such exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate the Commonwealth's ability to provide public notification related to the 2010 1-hour NO2 NAAQS when necessary. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(J) public notification.

110(a)(2)(J)—Visibility Protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. EPA recognizes that states are subject to visibility protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals. As such, EPA has made the preliminary determination that it does not need to address the visibility protection element of section 110(a)(2)(J) in Kentucky's infrastructure SIP submission related to the 2010 1-hour NO2 NAAQS.

11. 110(a)(2)(K) Air Quality and Modeling/Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to EPA can be made. KAR 50:040, Air Quality Models, incorporates by reference 40 CFR 52.21, which specifies that air modeling be conducted in accordance with 40 CFR part 51, Appendix W “Guideline on Air Quality Models. KRS 224.10-100(4) authorizes KDAQ to develop and conduct a comprehensive program for management of air resources in the Commonwealth. These provisions demonstrate that Kentucky has the authority to perform air quality modeling and provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour NO2 NAAQS. Additionally, Kentucky participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for NOX, which includes NO2. Taken as a whole, Kentucky's air quality regulations demonstrate that KDAQ has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 1-hour NO2 NAAQS. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate the Commonwealth's ability to provide for air quality and modeling, along with analysis of the associated data, related to the 2010 1-hour NO2 NAAQS when necessary.

12. 110(a)(2)(L) Permitting Fees: This element necessitates that the SIP require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.

Funding for the Kentucky air permit program comes from a processing fee, submitted by permit applicants, required by KAR 50:038, Air Emissions Fee, and KRS 224.20-050, Fee for Administration of Air Quality Program. KDAQ ensures this is sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR. Additionally, Kentucky has a fully approved title V operating permit program at KAR 52:20 20 that cover the cost of implementation and enforcement of PSD and NNSR permits after they have been issued. EPA has made the preliminary determination that Kentucky's SIP and practices adequately provide for permitting fees related to the 2010 NO2 NAAQS, when necessary. Accordingly, EPA is proposing to approve Kentucky's infrastructure SIP submission with respect to section 110(a)(2)(L).

13. 110(a)(2)(M) Consultation/Participation by Affected Local Entities: This element requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Chapter 77 of KRS, Air Pollution Control, and Regulations 50:066, Conformity of Transportation Plans, Programs and Projects, and 52:100, Public, Affected State, and U.S. EPA Review, authorize KDAQ to cooperate, consult, and enter into agreements with other agencies of the state, the Federal government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department.” Furthermore, KDAQ has demonstrated consultation with, and participation by, affected local entities through its work with local political subdivisions during the developing of its Transportation Conformity SIP and Regional Haze Implementation Plan. EPA has made the preliminary determination that Kentucky's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour NO2 NAAQS when necessary.

With the exception of the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), prong 3 of (D)(i), and (J), the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i), and the regulation of minor sources and minor modifications under section 110(a)(2)(C), EPA is proposing to approve that Kentucky's April 26, 2013, infrastructure SIP submission for the 2010 1-hour NO2 NAAQS has met the above-described infrastructure SIP requirements.

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

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

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

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

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

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

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

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

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

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

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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

In the Rules and Regulations section of this Federal Register, EPA is making this determination of attainment as a direct final rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to the rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn for the affected area and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of the rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules and Regulations section of this Federal Register.

I. Background and Overview

On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.1

Today's action is proposing to approve South Carolina's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO2 NAAQS, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) and the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility (i.e., prongs 1, 2, and 4 of section 110(a)(2)(D)(i)). On March 18, 2015, EPA approved South Carolina's April 30, 2014, infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. See 80 FR 14019. Therefore, EPA is not proposing any action pertaining to these requirements. With respect to South Carolina's infrastructure SIP submission related to interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i), EPA is not proposing any action today. EPA will act on these provisions in a separate action. For the aspects of South Carolina's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that South Carolina's already approved SIP meets certain CAA requirements.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO2 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and (2).” 2

EPA is acting upon the SIP submission from South Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO2 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.5 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.8 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.10

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.11 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).12 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.13 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.14 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.15 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.16 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.17

South Carolina's infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.

1. 110(a)(2)(A): Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. Regulation 61-62.1, Definitions and General Requirements, and 61-62.5 (1), Ambient Air Quality Standards have been federally approved in the South Carolina SIP and include enforceable emission limitations and other control measures for activities that contribute to NO2 concentrations in the ambient air. South Carolina statute 48-1-50(23) authorizes SC DHEC to adopt rules for the control of air pollution in order to comply with NAAQS. EPA has made the preliminary determination that the cited provisions are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance for the 2010 1-hour NO2 NAAQS in the State.

In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.18

Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: SIPs are required to provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. Regulation 61-62.5(7), Prevention of Significant Deterioration, and South Carolina statute 48-1-50(14), Powers of department, provide SC DHEC with the authority to collect and disseminate information relating to air quality and pollution and the prevention, control, supervision, and abatement thereof. Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan and a certified evaluation of the state's ambient monitors and auxiliary support equipment.19 On July 20, 2015, South Carolina submitted its monitoring network plan to EPA, and on November 19, 2015, EPA approved this plan. South Carolina's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0251. EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2010 1-hour NO2 NAAQS.

3. 110(a)(2)(C) Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements; enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). As discussed further below, in this action EPA is only proposing to approve the enforcement, and the regulation of minor sources and minor modifications aspects of South Carolina's section 110(a)(2)(C) infrastructure SIP submission.

Enforcement: SC DHEC cites to its SIP approved permit regulations for enforcement of NO2 emission limits and control measures and construction permitting for new or modified stationary NO2 sources (Regulations 61-62.5(7), Prevention of Significant Deterioration, and 61-62.5(7)(1), Nonattainment New Source Review, and Regulation 61-62.1, Section II, Permit Requirements). South Carolina cites to statute 48-1-50(11), which provides SC DHEC the authority to administer penalties for violations of any order, permit, regulation or standards. Additionally, SCDHEC is authorized under 48-1-50(3) and (4) to issue orders requiring the discontinuance of the discharge of air contaminants into the ambient air that create an undesirable level, and seek an injunction to compel compliance with the Pollution Control Act and permits, permit conditions and orders.

Preconstruction PSD Permitting for Major Sources: With respect to South Carolina's April 30, 2014, infrastructure SIP submission related to the PSD permitting requirements for major sources of section 110(a)(2)(C), EPA took final action to approve these provisions for the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019.

Regulation of Minor Sources and Modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source program that regulates emissions of the 2010 1-hour NO2 NAAQS. South Carolina has a SIP-approved minor NSR permitting program at Regulation 61-62.1, Section II, Permit Requirements, that regulates the preconstruction permitting of minor modifications and construction of minor stationary sources.

EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for program enforcement of control measures and regulation of minor sources and modifications related to the 2010 1-hour NO2 NAAQS.

4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components have two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because South Carolina's 2010 1-hour NO2 NAAQS infrastructure submission did not address prongs 1 and 2.

110(a)(2)(D)(i)(II)—prong 3: With respect to South Carolina's infrastructure SIP submission related to the interstate transport requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took final action to approve South Carolina's April 30, 2014, infrastructure SIP submission regarding prong 3 of D(i) for the 2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019.

110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation South Carolina's 2010 1-hour NO2 NAAQS infrastructure submission in a separate rulemaking.

5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Regulation 61-62.5, Standards 7 and 7.1 (q)(2)(iv), Public Participation, outlines how South Carolina will notify neighboring states of potential impacts from new or modified sources. EPA is unaware of any pending obligations for the State of South Carolina pursuant to sections 115 or 126 of the CAA. EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for insuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2010 1-hour NO2 NAAQS.

6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve South Carolina's SIP as meeting the requirements of sections 110(a)(2)(E). EPA's rationale for today's proposals respecting each section of 110(a)(2)(E) is described in turn below.

With respect to section 110(a)(2)(E)(i) and (iii), SC DHEC develops, implements and enforces EPA-approved SIP provisions in the State. S.C. Code Ann. Section 48, Title 1 and S.C. Code Ann § 1-23-40 (the Administrative Procedures Act), as referenced in South Carolina's infrastructure SIP submission, provides the SC DHEC's general legal authority to establish a SIP and implement related plans. In particular, S.C. Code Ann. Section 48-1-50(12) grants SC DHEC the statutory authority to “[a]ccept, receive and administer grants or other funds or gifts for the purpose of carrying out any of the purposes of this chapter; [and to] accept, receive and receipt for Federal money given by the Federal government under any Federal law to the State of South Carolina for air or water control activities, surveys or programs.” S.C. Code Ann. Section 48, Title 2 grants SC DHEC statutory authority to establish environmental protection funds, which provide resources for SC DHEC to carry out its obligations under the CAA. Specifically, in Regulation 61-30, Environmental Protection Fees, SC DHEC established fees for sources subject to air permitting programs. For Section 110(a)(2)(E)(iii), the submission states that South Carolina does not rely on localities for specific SIP implementation.

The requirements of 110(a)(2)(E)(i) and (iii) are further confirmed when EPA performs a completeness determination for each SIP submittal. This provides additional assurances that each submittal provides evidence that adequate personnel, funding, and legal authority under State law has been used to carry out the State's implementation plan and related issues. This information is included in all prehearings and final SIP submittal packages for approval by EPA.

As evidence of the adequacy of SC DHEC's resources, EPA submitted a letter to South Carolina on April 19, 2016, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to South Carolina can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0251. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. South Carolina satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2015, therefore South Carolina's grants were finalized.

Section 110(a)(2)(E)(ii) requires that states comply with section 128 of the CAA. Section 128 of the CAA requires that states include provisions in their SIP to address conflicts of interest for state boards or bodies that oversee CAA permits and enforcement orders and disclosure of conflict of interest requirements. Specifically, CAA section 128(a)(1) necessitates that each SIP shall require that at least a majority of any board or body which approves permits or enforcement orders shall be subject to the described public interest service and income restrictions therein. Subsection 128(a)(2) requires that the members of any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements.

With respect to 110(a)(2)(E)(ii), South Carolina satisfies the requirements of CAA section 128(a)(1) for the SC Board of Health and Environmental Control, which is the “board or body which approves permits and enforcement orders” under the CAA in South Carolina, through South Carolina statute 8-13-730. This statute provides that “[u]nless otherwise provided by law, no person may serve as a member of a governmental regulatory agency that regulates business with which that person is associated,” and statute 8-13-700(A) states in part that “[n]o public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated.” South Carolina statute 8-13-700(B)(1)-(5) provides for disclosure of any conflicts of interest by public official, public member or public employee, which meets the requirement of CAA Section 128(a)(2) that “any potential conflicts of interest . . . be adequately disclosed.” State statutes 8-13-730, 8-13-700(A), and 8-13-700(B)(1)-(5) have been approved into the South Carolina SIP as required by CAA section 128. Thus, EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for insuring compliance with the applicable requirements of section 110(a)(2)(E)(ii) relating to state boards for the 2010 NO2 NAAQS.

7. 110(a)(2)(F) Stationary Source Monitoring System: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. South Carolina's infrastructure SIP submission describes how the State establishes requirements for emissions compliance testing and utilizes emissions sampling and analysis. It further describes how the State ensures the quality of its data through observing emissions and monitoring operations. These infrastructure SIP requirements are codified at Section III, Regulation 61-62.1, Emissions Inventory. South Carolina statute 48-1-22 requires owners or operators of stationary sources to compute emissions, submit periodic reports of such emissions and maintain records as specified by various regulations and permits, and to evaluate reports and records for consistency with the applicable emission limitation or standard on a continuing basis over time. The monitoring data collected and records of operations serve as the basis for a source to certify compliance, and can be used by South Carolina as direct evidence of an enforceable violation of the underlying emission limitation or standard. Accordingly, EPA is unaware of any provision preventing the use of credible evidence in the South Carolina SIP.

Additionally, South Carolina is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. South Carolina made its latest update to the 2011 NEI on April 1, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for the stationary source monitoring systems related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve South Carolina's infrastructure SIP submission with respect to section 110(a)(2)(F).

8. 110(a)(2)(G) Emergency Powers: This section requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. South Carolina's infrastructure SIP submission identifies air pollution emergency episodes and preplanned abatement strategies as outlined in Regulation 61-62.3, Air Pollution Episodes. S.C. Code Ann. Section 1-23-130 provides SC DHEC with the authority to immediately promulgate emergency regulations if it finds an imminent peril to public health, safety, or welfare, or to protect or manage natural resources if it finds abnormal or unusual conditions, immediate need, or the state's best interest requires immediate promulgation of emergency regulations. S.C. Code Ann. Section 48-1-50(3) provides SCDHEC with the authority to issue orders requiring the discontinuance of the discharge of air contaminants into the ambient air that create an undesirable level, resulting in pollution in excess of applicable standards, and S.C. Code Ann. Section 48-1-50(4) authorizes SCDHEC to file an action in court to seek injunctive relief to compel compliance with the Pollution Control Act. EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for emergency powers related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve South Carolina's infrastructure SIP submissions with respect to section 110(a)(2)(G).

9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan: (i) As may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. SC DHEC has the authority for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in South Carolina as indicated in South Carolina statute 48-1. This Section provides SC DHEC with the ability and authority to respond to calls for SIP revisions, and South Carolina has provided a number of SIP revisions over the years for implementation of the NAAQS. EPA has made the preliminary determination that South Carolina's SIP and practices adequately demonstrate a commitment to provide future SIP revisions related to the 2010 1-hour NO2 NAAQS when necessary.

10. 110(a)(2)(J) Consultation With Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve South Carolina's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127, and visibility protection requirements of part C of the Act. With respect to South Carolina's infrastructure SIP submission related to the preconstruction PSD permitting requirements of section 110(a)(2)(J), EPA took final action to approve South Carolina's April 30, 2014, 2010 1-hour NO2 NAAQS infrastructure SIP for these requirements on March 18, 2015. See 80 FR 14019. EPA's rationale for its proposed action regarding applicable consultation requirements of section 121, the public notification requirements of section 127, and visibility protection requirements is described below.

110(a)(2)(J) (121 Consultation)—Consultation With Government Officials: Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. Regulation 61-62.5(7), Prevention of Significant Deterioration, South Carolina statute 48-1-50(8), Powers of department, as well as South Carolina's Regional Haze Implementation Plan (which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. S.C. Code Section 48-1-50(8) provides SC DHEC with the necessary authority to “Cooperate with the governments of the United States or other states or state agencies or organizations, officials, or unofficial, in respect to pollution control matters or for the formulation of interstate pollution control compacts or agreements.” South Carolina adopted state-wide consultation procedures for the implementation of transportation conformity. These consultation procedures include considerations associated with the development of mobile inventories for SIPs. Implementation of transportation conformity as outlined in the consultation procedures requires SC DHEC to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. EPA has made the preliminary determination that South Carolina's SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour NO2 NAAQS when necessary.

110(a)(2)(J) (127 Public Notification)—Public Notification: These requirements are met through Regulation 61-62.3, Air Pollution Episodes, which requires that SC DHEC notify the public of any air pollution alert, warning, or emergency. The SC DHEC Web site also provides air quality summary data, air quality index reports and links to more information regarding public awareness of measures that can prevent such exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality. EPA has made the preliminary determination that South Carolina's SIP and practices adequately demonstrate the State's ability to provide public notification related to the 2010 1-hour NO2 NAAQS when necessary. Accordingly, EPA is proposing to approve South Carolina's infrastructure SIP submissions with respect to section 110(a)(2)(J) public notification.

110(a)(2)(J)—Visibility Protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. SC DHEC referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under Part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals so SC DHEC does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that South Carolina's SIP submission is approvable for the visibility protection element of section 110(a)(2)(J) and that South Carolina does not need to rely on its regional haze program.

11. 110(a)(2)(K) Air Quality and Modeling/Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to the EPA can be made. Regulation 61-62.1, Definitions and General Requirements, 61-62-5(2), Ambient Air Quality Standards, and 61-62-5(7), Prevention of Significant Deterioration, specify that required air modeling be conducted in accordance with 40 CFR part 51, Appendix W “Guideline on Air Quality Models.” The state's permitting and reporting requirements provide the necessary tools to conduct, evaluate, and provide air quality modeling data if necessary. Also, S.C. Code Ann. § 48-1-50(14) provides SC DHEC with the necessary authority to “Collect and disseminate information on air and water control.” These standards demonstrate that South Carolina has the authority to perform air quality monitoring and provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour NO2 NAAQS. Additionally, South Carolina supports a regional effort to coordinate the development of emissions inventories and conduct regional modeling for NOX, which includes NO2. Taken as a whole, South Carolina's air quality regulations demonstrate that SC DHEC has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 1-hour NO2 NAAQS. EPA has made the preliminary determination that South Carolina's SIP and practices adequately demonstrate the State's ability to provide for air quality and modeling, along with analysis of the associated data, related to the 2010 1-hour NO2 NAAQS when necessary.

12. 110(a)(2)(L) Permitting Fees: This element requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.

Funding for the South Carolina air permit program comes from a fees submitted by permit applicants under Regulation 61-30, Environmental Protection Fees, which prescribes fees applicable to applicants and holders of permits, licenses, certificates, certifications, and registrations, establishes procedures for the payment of fees, provides for the assessment of penalties for nonpayment, and establishes an appeals process for refuting fees. Also, South Carolina statute 48-2-50, Fees, which prescribes that SC DHEC charge fees for environmental programs it administers pursuant to Federal and State law and regulations including those that govern the costs to review, implement and enforce PSD and NNSR permits. Additionally, South Carolina has a fully approved title V operating permit program at Regulation 61-62.70, Title V Operation Permit Program,20 that covers the cost of implementation and enforcement of PSD and NNSR permits after they have been issued. EPA has made the preliminary determination that South Carolina's SIP and practices adequately provide for permitting fees related to the 2010 NO2 NAAQS, when necessary. Accordingly, EPA is proposing to approve South Carolina's infrastructure SIP submission with respect to section 110(a)(2)(L).

13. 110(a)(2)(M) Consultation/Participation by Affected Local Entities: This element requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Regulation 61-62.5(7), Prevention of Significant Deterioration, and South Carolina statutes 48-1-50(8) and 1-23-40 authorize SC DHEC to cooperate, consult, and enter into agreements with other agencies of the state, the Federal government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department.” Furthermore, SC DHEC has demonstrated consultation with, and participation by, affected local entities through its work with local political subdivisions during the development of its Transportation Conformity SIP and Regional Haze Implementation Plan. EPA has made the preliminary determination that South Carolina's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour NO2 NAAQS when necessary.

With the exception of the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), prong 3 of (D)(i), and (J) and the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i), EPA is proposing to approve that South Carolina's April 30, 2014, infrastructure SIP submission for the 2010 1-hour NO2 NAAQS has met the above-described infrastructure SIP requirements.

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

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

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

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

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

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

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

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

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

• Does not provide 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 proposed action for the state of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, South Carolina statute 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, EPA has determined that because this proposed rule does not have substantial direct effects on an Indian Tribe because, as noted above, this action is not approving any specific rule, but rather proposing that South Carolina's already approved SIP meets certain CAA requirements. EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.

On May 18, 2016 EPA published in the Federal Register (81 FR 31344) a proposed rule that would make targeted revisions to the NPDES regulations. These revisions would make the regulations consistent with the 1987 CWA Amendments and with applicable judicial decisions. These revisions would delete certain regulatory provisions that are no longer in effect and clarify the level of documentation that permit writers must provide for permitting decisions. EPA is also asking for public comments on potential ways to enhance public notice and participation in the permitting process. CWA section 402 established the NPDES permitting program and gives EPA authority to write regulations to implement the NPDES program. 33 U.S.C. 1342(a)(1), (2). The proposed rule, as initially published in the Federal Register, provided for written comments to be submitted to EPA on or before July 18, 2016 (a 60-day public comment period). Since publication, EPA has received a request for additional time to submit comments. EPA is extending the public comment period for 15 days until August 2, 2016.