Federal Register Vol. 81, No.139,

Federal Register Volume 81, Issue 139 (July 20, 2016)

Page Range47001-47283
FR Document

81_FR_139
Current View
Page and SubjectPDF
81 FR 47283 - Honoring the Victims of the Attack in Nice, FrancePDF
81 FR 47181 - Sunshine Act Meeting; National Science BoardPDF
81 FR 47179 - Sunshine Act MeetingPDF
81 FR 47183 - Proposed Collection; Comment RequestPDF
81 FR 47171 - Deletion of Items From Sunshine Act MeetingPDF
81 FR 47176 - Tribal Consultation and Listening Sessions on Indian Trust Asset Reform ActPDF
81 FR 47042 - 2-Propenoic Acid, Butyl Ester, Polymer With Ethenyl Acetate and Sodium Ethenesulfonate; Tolerance ExemptionPDF
81 FR 47150 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
81 FR 47170 - Sulfoxaflor; Receipt of Application for Emergency Exemption, Solicitation of Public CommentPDF
81 FR 47152 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Amendment 19 to the Atlantic Sea Scallop Fishery Management PlanPDF
81 FR 47045 - Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability; Correcting AmendmentPDF
81 FR 47009 - Changes to the Application Requirements for Authorization To Operate in Reduced Vertical Separation Minimum AirspacePDF
81 FR 47237 - Agency Information Collection Activities: Submission for OMB Review; Joint Comment RequestPDF
81 FR 47181 - Board Meeting; August 24, 2016-DOE Work on Integrating Different Canister Designs for Storage and Disposal of SNFPDF
81 FR 47235 - Notice of Receipt of Application for a Presidential Permit for the Pembina-Emerson Land Port of Entry Expansion Project on the U.S.-Canada Border at Pembina, North Dakota, and Emerson, Manitoba, CanadaPDF
81 FR 47178 - Agency Information Collection Activities; Proposed Collection, Comments Requested; Extension of a Currently Approved Collection: Cargo Theft Incident ReportPDF
81 FR 47235 - Culturally Significant Objects Imported for Exhibition Determinations: “Della Robbia: Sculpting With Color in Renaissance Florence” ExhibitionPDF
81 FR 47047 - Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken Removed From the List of Endangered and Threatened WildlifePDF
81 FR 47236 - Culturally Significant Objects Imported for Exhibition Determinations: “No Limits: Zao Wou-Ki” ExhibitionPDF
81 FR 47231 - Culturally Significant Objects Imported for Exhibition Determinations: “Valentin de Boulogne: Beyond Caravaggio” ExhibitionPDF
81 FR 47172 - Office of Federal High-Performance Green Buildings; Green Building Advisory Committee; Request for Membership NominationsPDF
81 FR 47234 - 60-Day Notice of Proposed Information Collection: Application To Determine Returning Resident StatusPDF
81 FR 47231 - Memorandum of Agreement Between the U.S. Department of State Bureau of Consular Affairs and the Council on AccreditationPDF
81 FR 47162 - Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use ActPDF
81 FR 47051 - National Environmental Policy Act Implementing ProceduresPDF
81 FR 47046 - Agency for International Development Acquisition Regulation (AIDAR): Preference for Privately Owned U.S.-Flag Commercial Vessels.PDF
81 FR 47152 - Agency for International Development Acquisition Regulation (AIDAR): Preference for Privately Owned U.S.-Flag Commercial VesselsPDF
81 FR 47071 - Energy Conservation Program: Test Procedures for Certain Categories of General Service LampsPDF
81 FR 47158 - Mid-Atlantic Fishery Management Council (MAFMC); MeetingPDF
81 FR 47160 - Draft Outline for the Proposed Joint U.S.-Canadian Electric Grid StrategyPDF
81 FR 47177 - Certain Corrosion-Resistant Steel Products From China, India, Italy, Korea, and Taiwan; DeterminationsPDF
81 FR 47154 - Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications; CorrectionPDF
81 FR 47159 - DOE/NSF High Energy Physics Advisory PanelPDF
81 FR 47166 - Energy Resources USA, Inc.; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
81 FR 47167 - Marine Renewable Energy Collaborative of New England; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
81 FR 47168 - Community of Elfin Cove, DBA Elfin Cove Utility Commission; Notice of Successive Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
81 FR 47163 - California Independent System Operator Corporation; Notice of Technical ConferencePDF
81 FR 47168 - High Point Gas Transmission, LLC; Notice of ApplicationPDF
81 FR 47163 - Texas Eastern Transmission, LP; Notice of ApplicationPDF
81 FR 47166 - Fluke Corporation; Notice of FilingPDF
81 FR 47165 - Energy Resources USA, Inc.; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
81 FR 47158 - Proposed Collection; Comment RequestPDF
81 FR 47173 - National Practitioner Data Bank: Change in User FeesPDF
81 FR 47236 - Notice of Statute of Limitations on Claims, Final Federal Agency Actions on Proposed Highway in CaliforniaPDF
81 FR 47155 - Delta-Bienville Resource Advisory CommitteePDF
81 FR 47179 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Claim for Reimbursement-Assisted ReemploymentPDF
81 FR 47180 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Emergency Mine EvacuationPDF
81 FR 47175 - Prospective Grant of Exclusive Ownership of the Know The Facts First CampaignPDF
81 FR 47174 - Advisory Committee on Training in Primary Care Medicine and Dentistry; Notice for Request for NominationsPDF
81 FR 47175 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment RequestPDF
81 FR 47193 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to Janus Detroit Street Trust, the Janus Velocity Tail Risk Hedged Large Cap ETF, and the Janus Velocity Volatility Hedged Large Cap ETFPDF
81 FR 47158 - Prospective Grant of Exclusive Patent LicensePDF
81 FR 47162 - Combined Notice of Filings #2PDF
81 FR 47164 - Combined Notice of Filings #1PDF
81 FR 47169 - Combined Notice of Filings #1PDF
81 FR 47165 - Brady Wind II, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 47166 - Brady Wind, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 47164 - Buena Vista Energy LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 47167 - Notice of Effectiveness of Exempt Wholesale Generator StatusPDF
81 FR 47222 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change Relating to the Listing and Trading of Shares of BlackRock Government Collateral Pledge Unit Under NYSE Arca Equities Rule 8.600PDF
81 FR 47229 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Update Rule Cross-References and Make Non-Substantive Technical Changes to Certain FINRA RulesPDF
81 FR 47184 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Approving Proposed Rule Change Removing From Its Rules Certain Internal Procedures Regarding the Use of Fine IncomePDF
81 FR 47196 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Extending the Pilot Period Applicable to the Customer Best Execution Auction per Rule 971.1NYPDF
81 FR 47211 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of a Proposed Rule Change To Establish the MSRB Academic Historical Transaction Data ProductPDF
81 FR 47187 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt Paragraph (c) to Exchange Rule 11.27 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 47198 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Exchange Rule 11.27 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 47205 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt Paragraph (c) to Exchange Rule 11.22 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 47223 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Adopt Paragraph (c) to Exchange Rule 11.21 To Describe Changes to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot ProgramPDF
81 FR 47217 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Order Granting Approval of Proposed Rule Change, as Modified by Amendment No. 8 Thereto, to List and Trade Under BZX Rule 14.11(c)(4) Shares of the Following Series of VanEck Vectors ETF Trust: VanEck Vectors AMT-Free 6-8 Year Municipal Index ETF; VanEck Vectors AMT-Free 8-12 Year Municipal Index ETF; and VanEck Vectors AMT-Free 12-17 Year Municipal Index ETFPDF
81 FR 47171 - World Imports, Ltd., World Imports Chicago, LLC, and World Imports South, LLC v. OEC Group New York; Notice of Filing of Complaint and AssignmentPDF
81 FR 47178 - Notice of Lodging of Proposed Amended Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 47173 - Submission for OMB Review; Comment RequestPDF
81 FR 47182 - New Postal ProductPDF
81 FR 47155 - Notice of Intent To Grant Exclusive LicensePDF
81 FR 47017 - Changing the Collective Risk Limits for Launches and Reentries and Clarifying the Risk Limit Used To Establish Hazard Areas for Ships and AircraftPDF
81 FR 47181 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
81 FR 47171 - Notice of Agreements FiledPDF
81 FR 47176 - National Institute of Mental Health; Notice of Closed MeetingPDF
81 FR 47156 - Proposed Information Collection; Comment Request; Annual Capital Expenditures SurveyPDF
81 FR 47005 - Viruses, Serums, Toxins, and Analogous Products; Single Label Claim for Veterinary Biological ProductsPDF
81 FR 47005 - Update to Transcript Correction ProceduresPDF
81 FR 47115 - Air Plan Approval; North Carolina Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality StandardPDF
81 FR 47133 - Air Plan Approval; Massachusetts; Infrastructure State Implementation Plan RequirementsPDF
81 FR 47034 - Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; 2015 Kansas State Implementation Plan for the 2008 Lead StandardPDF
81 FR 47029 - Air Plan Approval; Oregon; Medford Area Carbon Monoxide Second 10-Year Maintenance PlanPDF
81 FR 47114 - Approval of Medford, Oregon; Carbon Monoxide Second 10-Year Limited Maintenance PlanPDF
81 FR 47040 - Finding of Failure To Submit a State Implementation Plan; Maryland; Interstate Transport Requirements for the 2008 8-Hour National Ambient Air Quality Standards for OzonePDF
81 FR 47103 - Approval and Promulgation of Implementation Plans; Alaska: Infrastructure Requirements for the 2010 Nitrogen Dioxide and 2010 Sulfur Dioxide StandardsPDF
81 FR 47094 - Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality StandardPDF
81 FR 47144 - Designation of Areas for Air Quality Planning Purposes; Ohio; Redesignation of the Ohio Portion of the Campbell-Clermont KY-OH Sulfur Dioxide Nonattainment AreaPDF
81 FR 47124 - Air Plan Approval/Disapproval; Alabama Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality StandardsPDF
81 FR 47087 - Recognition of Tribal Organizations for Representation of VA ClaimantsPDF
81 FR 47004 - Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; Withdrawal for a Continuance ReferendumPDF
81 FR 47027 - Safety Zone; Houma Navigation Canal Miles 23 to 23.5, Dulac, LAPDF
81 FR 47049 - Prevailing Rate Systems; Redefinition of the New York, NY, and Philadelphia, PA, Appropriated Fund Federal Wage System Wage AreasPDF
81 FR 47006 - Rules of Practice for HearingsPDF
81 FR 47157 - Silicon Metal From the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 47036 - Air Plan Approval; RI; Regional Haze Five Year Progress ReportPDF
81 FR 47124 - Air Plan Approval; RI; Regional Haze Five Year Progress ReportPDF
81 FR 47084 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 47001 - Chemical Facility Anti-Terrorism StandardsPDF
81 FR 47240 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Seismic Surveys in Cook Inlet, AlaskaPDF

Issue

81 139 Wednesday, July 20, 2016 Contents Agency Agency for International Development RULES Acquisition Regulations: Preference for Privately Owned U.S.-Flag Commercial Vessels, 47046-47047 2016-17137 PROPOSED RULES Acquisition Regulations: Preference for Privately Owned U.S.-Flag Commercial Vessels, 47152 2016-17136 Agricultural Marketing Agricultural Marketing Service RULES Continuance Referendum: Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; Withdrawal, 47004 2016-17038 Agricultural Research Agricultural Research Service NOTICES Exclusive Licenses, 47155 2016-17084 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Agricultural Research Service

See

Animal and Plant Health Inspection Service

See

Forest Service

Animal Animal and Plant Health Inspection Service RULES Viruses, Serums, Toxins, and Analogous Products: Single Label Claim for Veterinary Biological Products, 47005 2016-17073 PROPOSED RULES National Environmental Policy Act Implementing Procedures, 47051-47071 2016-17138 Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Capital Expenditures Survey, 47156 2016-17077 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicaid and Children's Health Insurance Program Programs: Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability; Correction, 47045-47046 2016-17157 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47173 2016-17086 Coast Guard Coast Guard RULES Safety Zones: Houma Navigation Canal Miles 23 to 23.5, Dulac, LA, 47027-47029 2016-17035 Commerce Commerce Department See

Census Bureau

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47237-47238 2016-17154 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47158-47159 2016-17118 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Program: Test Procedures for Certain Categories of General Service Lamps, 47071-47084 2016-17135 NOTICES Joint U.S.-Canadian Electric Grid Strategy, 47160-47162 2016-17133 Meetings: Department of Energy/National Science Foundation High Energy Physics Advisory Panel, 47159-47160 2016-17128 Self-Certification of Coal Capability under the Powerplant and Industrial Fuel Use Act, 47162 2016-17142
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Kansas; 2015 Kansas State Implementation Plan for the 2008 Lead Standard, 47034-47036 2016-17065 Maryland; Interstate Transport Requirements for the 2008 8-Hour National Ambient Air Quality Standards for Ozone, 47040-47042 2016-17057 Oregon; Medford Area Carbon Monoxide Second 10-Year Maintenance Plan, 47029-47034 2016-17060 Rhode Island; Regional Haze Five Year Progress Report, 47036-47040 2016-16941 Tolerance Exemptions: 2-Propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate, 47042-47045 2016-17165 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Alabama; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards, 47124-47133 2016-17053 Alaska; Infrastructure Requirements for the 2010 Nitrogen Dioxide and 2010 Sulfur Dioxide Standards, 47103-47114 2016-17056 Florida; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard, 47094-47103 2016-17055 Massachusetts; Infrastructure State Implementation Plan Requirements, 47133-47144 2016-17069 North Carolina; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard, 47115-47123 2016-17071 Ohio; Redesignation of the Ohio Portion of the Campbell-Clermont KY-OH Sulfur Dioxide Nonattainment Area, 47144-47150 2016-17054 Oregon; Medford Carbon Monoxide Second 10-Year Limited Maintenance Plan, 47114 2016-17058 Rhode Island; Regional Haze Five Year Progress Report, 47124 2016-16940 Pesticide Petitions: Residues of Pesticide Chemicals in or on Various Commodities, 47150-47152 2016-17164 NOTICES Emergency Exemption Applications: Sulfoxaflor, 47170-47171 2016-17162 Federal Aviation Federal Aviation Administration RULES Changing the Collective Risk Limits for Launches and Reentries and Clarifying the Risk Limit Used to Establish Hazard Areas for Ships and Aircraft, 47017-47027 2016-17083 Reduced Vertical Separation Minimum Airspace: Application Requirements for Authorization to Operate, 47009-47017 2016-17155 PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 47084-47087 2016-16906 Federal Communications Federal Communications Commission NOTICES Meetings; Sunshine Act, 47171 2016-17181 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47237-47238 2016-17154 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: High Point Gas Transmission, LLC, 47168-47169 2016-17123 Texas Eastern Transmission, LP, 47163-47164 2016-17122 Combined Filings, 47162, 47164-47165, 47169-47170 2016-17103 2016-17104 2016-17105 Exempt Wholesale Generators: Grande Prairie Wind, LLC, La Frontera Holdings, LLC, Boulder Solar Power, LLC, etc., 47167-47168 2016-17099 Filings: Fluke Corp., 47166 2016-17120 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Brady Wind II, LLC, 47165-47166 2016-17102 Brady Wind, LLC, 47166 2016-17101 Buena Vista Energy, LLC, 47164 2016-17100 Meetings: California Independent System Operator Corp.; Technical Conference, 47163 2016-17124 Preliminary Permit Applications: Elfin Cove, AK, DBA Elfin Cove Utility Commission, 47168 2016-17125 Energy Resources USA, Inc., 47165-47167 2016-17119 2016-17127 Marine Renewable Energy Collaborative of New England, 47167 2016-17126 Federal Highway Federal Highway Administration NOTICES Final Federal Agency Actions: California Proposed Highway, 47236 2016-17116 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 47171 2016-17079 Complaints and Assignments: World Imports, Ltd., World Imports Chicago, LLC, and World Imports South, LLC v. OEC Group New York, 47171-47172 2016-17088 Federal Reserve Federal Reserve System RULES Rules of Practice for Hearings, 47006-47009 2016-16969 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47237-47238 2016-17154 Fish Fish and Wildlife Service RULES Endangered and Threatened Wildlife and Plants: Lesser Prairie-Chicken Removed from the List of Endangered and Threatened Wildlife, 47047-47048 2016-17149 Forest Forest Service NOTICES Meetings: Delta-Bienville Resource Advisory Committee, 47155 2016-17115 General Services General Services Administration NOTICES Requests for Nominations: Office of Federal High-Performance Green Buildings Green Building Advisory Committee, 47172-47173 2016-17145 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47175-47176 2016-17108 Prospective Grants of Exclusive Ownership: Know the Facts First Campaign, 47175 2016-17111
Health Resources Health Resources and Services Administration NOTICES National Practitioner Data Bank: Change in User Fees, 47173-47174 2016-17117 Requests for Nominations: Advisory Committee on Training in Primary Care Medicine and Dentistry, 47174-47175 2016-17109 Homeland Homeland Security Department See

Coast Guard

RULES Chemical Facility Anti-Terrorism Standards, 47001-47004 2016-16776
Interior Interior Department See

Fish and Wildlife Service

NOTICES Meetings: Tribal Consultation and Listening Sessions on Indian Trust Asset Reform Act, 47176-47177 2016-17166
International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Silicon Metal from the People's Republic of China, 47157-47158 2016-16948 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Corrosion-Resistant Steel Products from China, India, Italy, Korea, and Taiwan, 47177-47178 2016-17131 Justice Department Justice Department See

Parole Commission

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cargo Theft Incident Report, 47178 2016-17151 Proposed Amended Consent Decrees under CERCLA, 47178-47179 2016-17087
Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Claim for Reimbursement-Assisted Reemployment, 47179-47180 2016-17113 Emergency Mine Evacuation, 47180-47181 2016-17112 National Institute National Institute of Standards and Technology NOTICES Exclusive Patent Licenses, 47158 2016-17106 National Institute National Institutes of Health NOTICES Meetings: National Institute of Mental Health, 47176 2016-17078 National Oceanic National Oceanic and Atmospheric Administration RULES Takes and Imports of Marine Mammals: Incidental to Seismic Surveys in Cook Inlet, AK, 47240-47280 2016-16695 PROPOSED RULES Fisheries of the Northeastern United States: Amendment 19 to the Atlantic Sea Scallop Fishery Management Plan, 47152-47154 2016-17158 Fisheries Off West Coast States: Coastal Pelagic Species Fisheries; Annual Specifications; Correction, 47154 2016-17130 NOTICES Meetings: Mid-Atlantic Fishery Management Council, 47158 2016-17134 National Science National Science Foundation NOTICES Meetings; Sunshine Act, 47181 2016-17273 Permit Applications: Antarctic Conservation Act, 47181 2016-17082 Nuclear Regulatory Nuclear Regulatory Commission RULES Update to Transcript Correction Procedures, 47005-47006 2016-17072 Nuclear Waste Technical Nuclear Waste Technical Review Board NOTICES Meetings: Integrating Different Canister Designs for Storage and Disposal of Spent Nuclear Fuel, 47181-47182 2016-17153 Parole Parole Commission NOTICES Meetings; Sunshine Act, 47179 2016-17262 2016-17263 Personnel Personnel Management Office PROPOSED RULES Prevailing Rate Systems: Redefinition of the New York, NY, and Philadelphia, PA, Appropriated Fund Federal Wage System Wage Areas, 47049-47051 2016-17029 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 47182-47183 2016-17085 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Honoring the Victims of the Attack in Nice, France (Proc. 9468), 47281-47283 2016-17348 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47183-47184 2016-17249 Securities Securities and Exchange Commission NOTICES Orders Granting Limited Exemptions from Exchange Act Rules: Janus Detroit Street Trust, the Janus Velocity Tail Risk Hedged Large Cap ETF, and the Janus Velocity Volatility Hedged Large Cap ETF, 47193-47196 2016-17107 Self-Regulatory Organizations; Proposed Rule Changes: Bats BYX Exchange, Inc., 47198-47205 2016-17092 Bats BZX Exchange, Inc., 47217-47222 2016-17089 Bats EDGA Exchange, Inc., 47223-47229 2016-17090 Bats EDGX Exchange, Inc., 47205-47211 2016-17091 Financial Industry Regulatory Authority, Inc., 47229-47231 2016-17097 Municipal Securities Rulemaking Board, 47211-47217 2016-17094 New York Stock Exchange, LLC, 47184-47187 2016-17096 NYSE Arca, Inc., 47222 2016-17098 NYSE MKT, LLC, 47196-47198 2016-17095 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application to Determine Returning Resident Status, 47234-47235 2016-17144 Culturally Significant Objects Imported for Exhibition: Della Robbia: Sculpting with Color in Renaissance Florence, 47235 2016-17150 No Limits: Zao Wou-Ki, 47236 2016-17148 Valentin de Boulogne: Beyond Caravaggio, 47231 2016-17147 Memorandum of Agreement: Between U.S. Department of State Bureau of Consular Affairs and the Council on Accreditation, 47231-47234 2016-17143 Presidential Permit Applications: Pembina-Emerson Land Port of Entry Expansion Project on the U.S.-Canada Border at Pembina, ND, and Emerson, Manitoba, Canada, 47235 2016-17152 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

Treasury Treasury Department See

Comptroller of the Currency

Veteran Affairs Veterans Affairs Department PROPOSED RULES Recognition of Tribal Organizations for Representation of VA Claimants, 47087-47094 2016-17052 Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 47240-47280 2016-16695 Part III Presidential Documents, 47281-47283 2016-17348 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

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81 139 Wednesday, July 20, 2016 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY 6 CFR Part 27 [Docket No. DHS-2016-0039] Chemical Facility Anti-Terrorism Standards AGENCY:

Department of Homeland Security.

ACTION:

Suspension and modification of certain submission requirements for chemical facilities of interest and covered chemical facilities under agency regulations.

SUMMARY:

The U.S. Department of Homeland Security (DHS or Department) is publishing this document to inform the public of the Department's actions to implement an improved tiering methodology for the Chemical Facility Anti-Terrorism Standards (CFATS) program that incorporates the relevant elements of risk mandated by section 2102(e)(2) of title XXI of the Homeland Security Act of 2002 (as amended). Implementation of the improved tiering methodology required changes to an Information Collection Request (ICR), which has recently been approved by the Office of Management and Budget (OMB).

DATES:

This document goes into effect July 20, 2016, or as otherwise specified in this document.

FOR FURTHER INFORMATION CONTACT:

Jessica Falcon, Chief, Compliance Branch, Department of Homeland Security, 245 Murray Lane SW., Mail Stop 0610, Arlington, VA 20598-0610; Phone: 703-235-5263, Fax: 866-731-2728.

SUPPLEMENTARY INFORMATION:

I. Background & History

In December 2014, the President signed into law the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 1 or “CFATS Act of 2014” (Pub. L. 113-254, 6 U.S.C. 621, et seq.). The CFATS Act of 2014 amended the Homeland Security Act of 2002 2 (6 U.S.C. 101 et seq.) with the addition of Title XXI—Chemical Facility Anti-Terrorism Standards—authorizing the Department to regulate chemical facilities of interest.3

1 Public Law 113-254, 128 Stat. 2898, Dec. 18, 2014, is available at: https://www.congress.gov/bill/113th-congress/house-bill/4007?q=%7B%22search%22%3A%5B%22HR+4007%22%5D%7D (CFATS Act of 2014).

2 Public Law 107-296 Stat. 2135, Nov. 25, 2002 is available at: https://www.thefederalregister.org/fdsys/pkg/PLAW-107publ296/pdf/PLAW-107publ296.pdf. (Homeland Security Act of 2002)

3 Section 2101(2) of the Homeland Security Act of 2002, as enacted on December 18, 2014, defined chemical facility of interest as a facility that holds, or that the Secretary has a reasonable basis to believe holds, a chemical of interest at a set threshold quantity pursuant to relevant risk related security principles and is not an excluded facility.

Section 2102(e)(2) of Title XXI of the Homeland Security Act of 2002 (as amended) requires that the Department incorporate the relevant elements of risk in determining the risk of terrorism associated with a covered chemical facility.4 The improved tiering methodology will require the submission by facilities of information that differs in some respects from the information that has previously been collected. Accordingly, the Department published two notices, one in November 2015 and one in April of 2016, that requested comments about the recently approved ICR for the Chemical Security Assessment Tool (CSAT).5 Among the approved revisions, the ICR describes a revised Top-Screen that will enable the Department to comply with Section 2102(e)(2) of Title XXI of the Homeland Security Act of 2002 (as amended).6

4 Section 2101(3) of the Homeland Security Act of 2002 as enacted on December 18, 2014 defined covered chemical facility as a chemical facility of interest that based upon a review of the facility's top screen meets the risk criteria developed under section 2102(e)(2)(B) of the Homeland Security Act of 2002 and is not an excluded facility.

5 See https://www.federalregister.gov/articles/2015/11/18/2015-29457/chemical-security-assessment-tool-csat#p-25.

6 The Chemical Security Assessment Tool (CSAT) OMB Information Collection Request for 1670-0007 may be viewed at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201604-1670-001.

II. Department's Transition to a Revised Top-Screen, Security Vulnerability Assessment, and Site Security Plan Applications

The Department will transition to the revised CSAT Top-Screen application, a revised CSAT Security Vulnerability Assessment (SVA) application, and a revised CSAT Site Security Plan (SSP) application, hereafter described as “CSAT 2.0”. The Department expects to begin collecting information using CSAT 2.0 from chemical facilities of interest in the near future using a phased approach.

The Department considered several alternatives for transitioning from the existing CSAT applications to CSAT 2.0 to minimize undue effort and unnecessary complexity that could inadvertently cause confusion. The Department believes that the actions taken in this document represent a reasonable transition process.

The transition from the existing CSAT applications to CSAT 2.0 will be a three-step process. The first step is to temporarily suspend, effective July 20, 2016, the requirement for CFATS chemical facilities of interest to submit a Top-Screen and SVA. This suspension is designed to help chemical facilities of interest avoid expending time and resources on Top-Screen and SVA submissions during the transition to CSAT 2.0. The Department will continue to allow covered chemical facilities to submit new or revised SSPs and Alternative Security Programs (ASPs) in lieu of an SSP using the current CSAT SSP application up until the date of transition to CSAT 2.0.

The second step will be to replace the current CSAT Top-Screen, SVA, and SSP applications with CSAT 2.0 (i.e., the revised CSAT Top-Screen, SVA, and SSP applications). The Department currently plans to take this step in September 2016. Soon after transitioning to CSAT 2.0, the Department will, in a phased approach, begin individually notifying chemical facilities of interest to submit a Top-Screen using the revised CSAT Top-Screen application. Notification will be sent to facilities that either (a) have previously submitted a Top-Screen with COI above the STQ, or (b) the Department has reason to believe have COI at or above the STQ. Section III and IV of this document describe which chemical facilities of interest will and will not be required to submit a Top-Screen.

The third step will be to reinstate the Top-Screen and SVA submission requirements in 6 CFR 27.210(a) on October 1, 2016.

III. Facilities That Will Be Required To Submit a Top-Screen

After the transition to CSAT 2.0, the Department will begin individually notifying chemical facilities of interest (to include facilities previously determined not to be high-risk), unless otherwise described in Section IV of this document, to submit a Top-Screen using the revised CSAT Top-Screen application. The Department will send a specific written notification in this regard, pursuant to its authority under 6 CFR 27.210(a)(1)(ii). These letters will be issued in a phased manner over the course of several months.

A facility that does not possess any chemical of interest (COI) at or above the Screening Threshold Quantity (STQ) and as applicable, at or above the minimum concentration specified in Appendix A will not need to submit a Top-Screen. However, any such facility, if provided with written notice to submit a Top-Screen, must notify the Department why it is not submitting a Top-Screen. Notification may be done either by (a) accessing CSAT and submitting a Top-Screen with no COI selected 7 or (b) by sending a letter or fax to the contact listed in the contact section of this document.

7 It is common practice for a covered chemical facility that no longer possesses COI at or above the (STQ) and at or above the minimum concentration specified in Appendix A to submit a revised Top-Screen with no COI selected. Upon receiving the revised Top-Screen and confirming the information, the Department determines the facility no longer is a high risk chemical facility.

A covered chemical facility does not have to wait for written notification from the Department to submit a Top-Screen after the Department transitions to CSAT 2.0. A covered chemical facility may find it advantageous to submit a Top-Screen prior to receiving specific notification from the Department if it believes its tier might be lowered under the improved tiering methodology.

Chemical facilities of interest that come into reportable amounts of COI listed on Appendix A during the temporary suspension must submit a Top-Screen within 60 days of reinstatement. The reinstatement of the submission requirements also means that chemical facilities of interest that either: (a) Come into possession of reportable amounts of COI listed on Appendix A after the reinstatement of submission, or (b) have not complied with the existing reporting requirement since November 20, 2007 have an obligation to submit a Top-Screen within 60 days of reinstatement.

IV. Facilities That Will Not Be Required To Submit a Top-Screen

If a facility described below receives a notification letter directing it to submit a Top-Screen, it should contact the Department for further guidance—using either the contact information contained in the contact section of this document or by contacting the CFATS Helpdesk.8

8 The CFATS Helpdesk may be contacted at 866-323-2957 Monday through Friday from 8:30 a.m. to 5:00 p.m. (EST). The CFATS Helpdesk is closed on Federal Holidays.

A. Agricultural Production Facilities and Miscellaneous Extensions

This document does not modify the existing Top-Screen submission extension applicable to Agricultural Production Facilities that use COI in preparation for the treatment of crops, feed, land, livestock (including poultry), or other areas of an Agricultural Production Facility or during application to or treatment of crops, feed, land, livestock (including poultry), or other areas of the facility.9 Similarly, this document does not modify any other extension issued by the Department for submitting a Top-Screen.

9 The Department of Homeland Security published a letter that it issued on December 21, 2007. Through this letter, the Department granted a time extension for farmers and other agricultural end-users who would otherwise have been required to submit a Top-Screen consequence assessment through the secure online CSAT Top-Screen. See 73 FR 1640, Jan. 9, 2008 is available at https://federalregister.gov/a/E8-199.

B. Chemical Facilities of Interest With Reportable COI That Is Present in a Gasoline Mixture

The Department's practice has been to indefinitely extend the due dates for submission of Top-Screens, and as applicable SVAs and SSPs, for chemical facilities of interest whose only reportable COI is present in a gasoline mixture. Nothing in this document is intended to alter that practice; however, chemical facilities of interest that reported or have come into possession of one or more COI above the STQ in addition to the COI present in gasoline will be required to submit a Top-Screen in the revised CSAT Top-Screen application for that COI. The Department does not intend to send written notifications requesting revised Top-Screens from facilities that have previously submitted a Top-Screen with only COI present in gasoline.

C. Statutorily Excluded Facilities

Facilities that are statutorily excluded from CFATS are not required to submit a Top-Screen, and the Department does not intend to send written notifications requesting statutorily-excluded facilities to submit a Top-Screen.10

10 Section 2101(4) of the Homeland Security Act of 2002, as enacted on December 18, 2014 defined excluded facility as: (A) A facility regulated under the Maritime Transportation Security Act of 2002 (Pub. L. 107-295; 116 Stat. 2064); (B) a public water system, as that term is defined in section 1401 of the Safe Drinking Water Act (42 U.S.C. 300f); (C) a Treatment Works, as that term is defined in section 212 of the Federal Water Pollution Control Act (33 U.S.C. 1292); (D) a facility owned or operated by the Department of Defense or the Department of Energy; or (E) a facility subject to regulation by the Nuclear Regulatory Commission, or by a State that has entered into an agreement with the Nuclear Regulatory Commission under section 274 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2021(b)) to protect against unauthorized access of any material, activity, or structure licensed by the Nuclear Regulatory Commission.

D. Untiered Facilities That Previously Notified the Department They Had No Reportable COI

The Department does not intend to require untiered facilities that previously submitted a Top-Screen with no COI selected to submit another Top-Screen; however, the Department does expect such facilities to submit a Top-Screen if they have come into possession of a reportable amount of COI since submitting their previous Top-Screen.

V. Unsubmitted SVAs and SSPs in the Current CSAT SVA and SSP Applications

The Department notes that (a) some SVAs that have been initiated in the current CSAT SVA application have not yet been submitted, and similarly that (b) some SSPs that have been initiated in the current CSAT SSP application have not yet been submitted. Only complete and submitted SVAs and complete and submitted SSPs will be retained in CSAT 2.0.11

11 A covered chemical facility that would like to preserve information within the current CSAT SSP application prior to the transition to CSAT 2.0 may consider generating a PDF of the partially SSP.

Upon transitioning to CSAT 2.0, the Department will delete any partially completed SVA (i.e., unsubmitted SVA) found in the current CSAT SVA application. Any covered chemical facility that has either (a) an unsubmitted SVA within the current CSAT SVA application or (b) has submitted an SVA but not received a final tier determination based on its most recent SVA submission, will receive written notification from the Department to submit a Top-Screen using the revised CSAT Top-Screen application.

Upon transitioning to CSAT 2.0, the Department will delete any partially completed SSP (i.e., unsubmitted SSPs) in the current CSAT SSP application. This means that if a covered chemical facility has not submitted its SSP prior to the transition to CSAT 2.0, any data in its partially completed SSP (i.e., unsubmitted SSP) within the current CSAT SSP application will be deleted and will no longer be retrievable. Any data from a SSP previously submitted through the current CSAT SSP application will be available and pre-populated in CSAT 2.0.

VI. Changes to Submission Schedule for SVAs and SSPs A. Impacts to “Initial Submission” Schedule at 6 CFR 27.210(a)

As described in the November 2015 CSAT ICR Notice, the Department expects that because of the revisions in CSAT 2.0:

• Chemical facilities will spend 90 percent less time logged into the SVA application, and

• Chemical facilities will spend 70 percent less time logged into the SSP application.

Furthermore, as mentioned in the November 2015 CSAT ICR Notice one of the expected outcomes of the revisions is a greater confidence in the tiering results conducted after the Top-Screen. Hence, while the Department reserves the right to modify a facility's tier following review of the facility's SVA, generally speaking, the Department will rely on the information submitted in a facility's Top-Screen to make a single tiering determination for the facility, as described in 6 CFR 27.220(a). The Department will indicate confirmation of or, in extremely rare cases, alteration of, the facility's tier in a Letter of Authorization (or, in the case of a facility electing to submit an SSP under the Expedited Approval Program, a Letter of Acceptance).

In large part due to (a) the Department's reliance on a single tiering determination based on a facility's Top-Screen, and (b) an improved integration between the CSAT SVA application and the CSAT SSP application, the revised CSAT SVA application and revised CSAT SSP application have been designed to be completed and submitted together. The Department also believes that the revised CSAT SVA application aligns substantially better with 6 CFR 27.215 (the requirements of an SVA) compared to the current CSAT SVA application. Therefore, the Department, in this document, is streamlining the submission requirements to align with the revised CSAT SVA application and revised CSAT SSP application efficiencies described in the CSAT ICR by aligning the submission requirements and having them run in parallel. Based on these changes, the SVA start date and due date will be the same as the SSP start date and due date, respectively. Specifically, in this document, the Department is using its authorities:

• Under 6 CFR 27.210(a)(2), when the Department transitions to CSAT 2.0, to require covered chemical facilities to submit their initial SVA within 120 days of written notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk.

• under 6 CFR 27.210(a)(3), when the Department transitions to CSAT 2.0, to require covered chemical facilities to submit their initial SSP within 120 days of written notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk.

Therefore, the deadline for a covered chemical facility to submit an initial SVA and an initial SSP will be 120 days after the Department's tiering determination described in 6 CFR 27.205(a). Facilities may request extensions to the due dates for the SVA and SSP. All requests will be considered by the Department on a case by case basis.

B. Impacts to “Resubmission Schedule for Covered Facilities” at 6 CFR 27.210(b)

As previously explained, the Department expects to maintain the ability to have data from the most recently submitted CSAT SSP pre-populate into an SSP that will be available in the CSAT 2.0 SSP application. As a result, after the transition to CSAT 2.0, covered chemical facilities that need to revise their SSPs will need to (a) review a pre-populated SSP for completeness and accuracy; and (b) make any necessary updates or corrections to their SSP before submission using the revised CSAT SSP application. Because the new CSAT 2.0 design contemplates the submission of the SVA and SSP together, covered chemical facilities will also be required to revise their SVAs if/when they revise their SSPs. Furthermore, the start date and due date for a revised SVA will be the same as the start date and due date, respectively, for the covered chemical facility's revised SSP. Covered chemical facilities will be required to submit revised SVAs and revised SSP within 30 days of written notification from the Department. The Department selected the 30 day deadline because it has been allowing covered chemical facilities 30 days to complete revisions to their SVAs and SSPs for the past several years and found that it is a sufficient amount of time for most facilities. The Department will consider requests for extensions to the due dates for revised SVAs and SSPs.

VII. Additional Considerations for Chemical Facilities of Interest A. Inactive CSAT User Accounts

Many chemical facilities of interest previously determined not to be high risk will need to reactivate the CSAT account(s) of their designated representative(s) or register a new representative. All chemical facilities of interest affected by this document, in particular chemical facilities of interest previously determined not to be high risk, should verify what, if any, steps they need to take in order to ensure that an appropriate representative has an active CSAT account. For assistance on how to reactivate a CSAT account please contact the CFATS Help Desk. Information about how to register for a new CSAT account can be found on the CFATS Knowledge Center at www.dhs.gov/chemicalsecurity.

B. Need for Chemical-Terrorism Vulnerability Information (CVI) Certification

To access CSAT, a CSAT User must be a Chemical-terrorism Vulnerability Information (CVI) authorized user. CSAT Users, in particular CSAT users affiliated with chemical facilities of interest previously determined not to be high risk, may need to complete CVI training and apply to be a CVI Authorized User prior to their ability to access CSAT. To verify your status as a CVI Authorized User you may contact the CFATS Helpdesk.

VIII. Regulatory Actions This Document Exercises Under Part 27 of Title 6, Code of Federal Regulations

This document exercises the following regulatory actions:

• Temporarily suspends the requirement to submit a Top-Screen and SVA on July 20, 2016. The Department is authorized to take this action under § 27.210(a)(1)(ii) and (a)(2) of part 27 of title 6, Code of Federal Regulations.

• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility will be required to submit its initial SVA within 120 days of notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk. The Department is authorized to take this action under § 27.210(a)(2) of part 27 of title 6, Code of Federal Regulations.

• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility will be required to submit its initial SSP within 120 days of notification of the Department's determination under 6 CFR 27.205(a) that they are high-risk. The Department is authorized to take this action under § 27.210(a)(3) of part 27 of title 6, Code of Federal Regulations.

• Notifies the public that when the Department transitions to CSAT 2.0, covered chemical facilities seeking to revise an SSP will also be required to revise their SVA. The Department is authorized to take this action under § 27.210(b)(2) of part 27 of title 6, Code of Federal Regulations.

• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility submitting a revised SVA will have 30 days to submit its revised SVA. The Department is authorized to take this action under § 27.210(a)(2) of part 27 of title 6, Code of Federal Regulations.

• Notifies the public that when the Department transitions to CSAT 2.0, a covered chemical facility submitting a revised SSP will have 30 days to submit its revised SSP. The Department is authorized to take this action under § 27.210(a)(3) of part 27 of title 6, Code of Federal Regulations.

• Notifies the public of the reinstatement of the Top-Screen and SVA submission requirements on October 1, 2016. This means that chemical facilities of interest that acquire reportable amounts of COI listed on Appendix A after the reinstatement of the requirement to submit a Top-Screen and SVA must submit a Top-Screen within 60 days. The reinstatement of the submission requirements also means that chemical facilities of interest that have not complied with the existing reporting requirement since November 20, 2007 must also submit a Top-Screen with 60 days. The Department is authorized to take this action under § 27.210(a)(1)(ii) and (a)(2) of part 27 of title 6, Code of Federal Regulations.

• Notifies the public that a chemical facility of interest will have 60 days following the reinstatement of the submission requirements under 6 CFR 27.210(a) to submit a Top-Screen if the chemical of facility of interest have come into possession of a reportable amount of COI after July 20, 2016 but before reinstatement of the submission requirements. The Department is authorized to take this action under § 27.210(a)(1)(ii) of part 27 of title 6, Code of Federal Regulations.

This document does not require chemical facilities to immediately submit a Top-Screen after the transition to the revised CSAT Top-Screen application. Rather, this document publicizes the Department's intent to begin individually notifying chemical facilities of interest. After the transition to CSAT 2.0, the Department will begin sending written notification to chemical facilities of interest requiring them to submit a Top-Screen using the revised CSAT Top-Screen application. Finally, the Department (1) reemphasizes that once the Department transitions to CSAT 2.0, any chemical facility of interest can submit a Top-Screen using the revised CSAT Top-Screen application, regardless of whether it has received written notification from the Department, and (2) continues to be available for consultation to any chemical facility of interest before, during, or after the transition to CSAT 2.0. In particular the Department is available for consultation to any chemical facilities of interest that acquire COI for the first time. Requests for consultation can be made through the CFATS Helpdesk.

Taken together the process and steps outlined in this document will enable the Department to collect the necessary information to implement the improved tiering methodology required in Section 2102(e)(2) of the Homeland Security Act of 2002.

Dated: July 11, 2016. David M. Wulf, Director, Infrastructure Security Compliance Division, Office of Infrastructure Protection, National Protection and Programs Directorate, Department of Homeland Security.
[FR Doc. 2016-16776 Filed 7-19-16; 8:45 am] BILLING CODE 9110-9P-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1217 [Document No. AMS-SC-15-0079] Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; Withdrawal for a Continuance Referendum AGENCY:

Agricultural Marketing Service, Department of Agriculture.

ACTION:

Withdrawal of referendum order.

SUMMARY:

On February 23, 2016, a document directing that a referendum be conducted in August 2016 among eligible domestic manufacturers and importers of softwood lumber to determine whether they favor continuance of the Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order (Order) was published in the Federal Register (81 FR 8822). The document is hereby withdrawn. The referendum has been postponed until a future date to be determined by the Secretary.

DATES:

The document published February 23, 2016 (81 FR 8822) is withdrawn as of July 20, 2016.

FOR FURTHER INFORMATION CONTACT:

Maureen Pello, Marketing Specialist, PED, SC, AMS, USDA, 1400 Independence Avenue SW., Room 1406-S, Stop 0244, Washington, DC 20250-0244; telephone: (202) 720-9915, (503) 632-8848 (direct line); facsimile: (202) 205-2800; or electronic mail: [email protected]

SUPPLEMENTARY INFORMATION:

This document is issued under the Order (7 CFR part 1217). The Order is authorized under the Commodity Promotion, Research and Information Act of 1996 (7 U.S.C. 7411-7425).

This document withdrawals a referendum order that was published in the Federal Register on February 23, 2016, directing that a referendum be conducted in August 2016 among eligible softwood lumber domestic manufacturers and importers to determine whether they favor continuance of the Order. The referendum has been postponed until a future date to be determined by the Secretary.

Dated: July 14, 2016. Elanor Starmer, Administrator.
[FR Doc. 2016-17038 Filed 7-19-16; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 112 [Docket No. APHIS-2011-0049] RIN 0579-AD64 Viruses, Serums, Toxins, and Analogous Products; Single Label Claim for Veterinary Biological Products AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule; technical amendment.

SUMMARY:

In a final rule published in the Federal Register on July 10, 2015, and effective on September 8, 2015, we amended the Virus-Serum-Toxin Act regulations to provide for the use of a simpler labeling format that would better communicate product performance to the user. Among other things, we provided the address of a Web site for accessing transmittal forms to be used with each submission of sketches and labels. However, the Web site address provided is incorrect. Therefore, we are amending the regulations to provide the correct address.

DATES:

Effective July 20, 2016.

FOR FURTHER INFORMATION CONTACT:

Dr. Donna Malloy, Operational Support Section, Center for Veterinary Biologics, Policy, Evaluation, and Licensing, VS, APHIS, 4700 River Road, Unit 148, Riverdale, MD 20737; (301) 851-2352.

SUPPLEMENTARY INFORMATION:

In a final rule 1 that was published in the Federal Register on July 10, 2015 (80 FR 39669-39675, Docket No. APHIS-2011-0049), and effective on September 8, 2015, we amended the Virus-Serum-Toxin Act regulations to provide for the use of a simpler labeling format that would better communicate product performance to the user. Among other things, we provided the address of a Web site in § 112.5(a) for accessing transmittal forms to be used with each submission of sketches (including proofs) and labels. However, the Web site address provided is for accessing product licensing data and not transmittal forms. Therefore, we are amending § 112.5(a) to correct the address.

1 To view the final rule and supporting documents, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2011-0049.

Lists of Subjects in 9 CFR Part 112

Animal biologics, Exports, Imports, Labeling, packaging and containers, Reporting and recordkeeping requirements.

Accordingly, we are amending 9 CFR part 112 as follows:

PART 112—PACKAGING AND LABELING 1. The authority citation for part 112 continues to read as follows: Authority:

21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.

§ 112.5 [Amended]
2. In § 112.5, paragraph (a) is amended by removing the words “(productdata.aphis.usda.gov)” and adding the words “(http://www.aphis.usda.gov/animalhealth/cvb/forms)” in their place. Done in Washington, DC, this 14th day of July 2016. Jere L. Dick, Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2016-17073 Filed 7-19-16; 8:45 am] BILLING CODE 3410-34-P
NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 [NRC-2016-0117] RIN 3150-AJ76 Update to Transcript Correction Procedures AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is amending its regulation that governs the correction of official transcripts for agency adjudicatory proceedings. The current regulation has not been substantively updated since it was adopted in 1962 and the NRC's internal procedures have evolved since that time to incorporate technological development. The NRC is not soliciting public comment on this change because the change is limited to an agency rule of procedure and practice that does not affect the rights and responsibilities of outside parties.

DATES:

This final rule is effective on July 20, 2016.

ADDRESSES:

Please refer to Docket ID NRC-2016-0117 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0117. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For other questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Public Document Room (PDR): You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Tison Campbell, Office of the General Counsel, telephone: 301-287-9290, email: [email protected], U.S. Nuclear Regulatory Commission, Washington DC 20555-0001.

SUPPLEMENTARY INFORMATION:

I. Summary of Changes

In 1962, the Atomic Energy Commission (the NRC's predecessor agency) adopted revised rules of practice and procedure to govern the conduct of adjudicatory proceedings before the agency (27 FR 377; January 13, 1962). As part of those regulations, the Commission adopted a paragraph governing the correction of hearing transcripts. That provision, originally at § 2.750(b) of title 10 of the Code of Federal Regulations (10 CFR), provided specific, prescriptive direction to the Commission's staff regarding the method for recording and showing corrections to transcripts. For example, the Secretary was directed to make any physical corrections to the official transcript, not by replacing pages, but by drawing a line through the text to be changed in the original transcript and writing the correct text immediately above.

The current agency practice varies. In Commission proceedings, an appendix listing the transcript corrections and a clean version of the transcript are attached to the order adopting the parties' proposed transcript corrections. In Atomic Safety and Licensing Board Panel proceedings, the boards generally issue an order adopting the parties' joint proposed transcript corrections, with or without an appendix listing the corrections. The Secretary does not prepare transcripts of board proceedings.

The NRC is, therefore, updating the regulation that governs the correction of official transcripts for agency adjudicatory proceedings, currently at § 2.327(d), to reflect advancements in technology and to bring its regulations in line with current agency practice. The revision to § 2.327(d) removes prescriptive requirements from the regulation and allows presiding officers flexibility in determining the method to prepare corrected transcripts. This change allows the presiding officer to list transcript changes in a table included in or appended to an order; issue a marked-up version of the transcript; issue a clean, revised version of the transcript; or select another method that ensures a clear and concise description of transcript changes.

II. Rulemaking Procedure

Under the Administrative Procedure Act (5 U.S.C. 553(b)(A)), notice and comment requirements do not apply “to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” Because this revision affects the NRC's rules of agency procedure and practice, the notice and comment provisions of the Administrative Procedure Act do not apply. Moreover, the final rule does not change the substantive responsibilities of any person or entity regulated by the NRC.

The amendments are effective upon publication in the Federal Register. Good cause exists under 5 U.S.C. 553(d) to dispense with the usual 30-day delay in the effective date of the final rule because the amendments are of a minor and administrative nature dealing with changes to certain sections that do not require action by any person or entity regulated by the NRC.

III. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

IV. National Environmental Policy Act

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

V. Paperwork Reduction Act

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

VI. Congressional Review Act

This final rule is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

VII. Availability of Guidance

The NRC will not be issuing guidance for this rulemaking because the revised rule applies to the NRC only and does not affect the rights and responsibilities of outside parties.

List of Subjects in 10 CFR Part 2

Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Confidential business information, Freedom of information, Environmental protection, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 2.

PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 2 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note. Section 2.205(j) also issued under Sec. 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).

2. In § 2.327, revise paragraph (d) to read as follows:
§ 2.327 Official recording; transcript.

(d) Transcript corrections. Corrections ordered or approved by the presiding officer must be included in the record through the issuance of an order by the presiding officer or the Secretary, as appropriate under the regulations in this part. The order shall reflect the corrections to the transcript through the use of a table, the issuance of a corrected or new transcript, or some other method selected by the presiding officer that will ensure a clear and concise description of the corrections.

Dated at Rockville, Maryland, this 14th day of July, 2016.

For the Nuclear Regulatory Commission.

Cindy Bladey, Chief, Rules, Announcements, and Directives Branch. Office of Administration.
[FR Doc. 2016-17072 Filed 7-19-16; 8:45 am] BILLING CODE 7590-01-P
FEDERAL RESERVE SYSTEM 12 CFR Part 263 [Docket No. R-1543] RIN 7100 AE-55 Rules of Practice for Hearings AGENCY:

Board of Governors of the Federal Reserve System.

ACTION:

Interim final rule.

SUMMARY:

The Board of Governors of the Federal Reserve System (the “Board”) is issuing an interim final rule amending its rules of practice and procedure to adjust the amount of each civil monetary penalty (“CMP”) provided by law within its jurisdiction to account for inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

DATES:

This interim final rule is effective on August 1, 2016. Comments on the interim final rule must be received on or before August 30, 2016.

ADDRESSES:

When submitting comments, please consider submitting your comments by email or fax because paper mail in the Washington, DC area and at the Board may be subject to delay. You may submit comments, identified by Docket No. R-1543 and RIN 7100 AE 55, by any of the following methods:

Agency Web site: www.federalreserve.gov. Follow the instructions for submitting comments at www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.

Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

Email: [email protected] Include the docket number in the subject line of the message.

Fax: (202) 452-3819 or (202) 452-3102.

Mail: Address to Robert deV. Frierson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551.

All public comments will be made available on the Board's Web site at www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons. Accordingly, comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper form in Room 3515, 1801 K Street NW. (between 18th and 19th Streets), Washington, DC 20551) between 9:00 a.m. and 5:00 p.m. on weekdays.

FOR FURTHER INFORMATION CONTACT:

Katherine H. Wheatley, Associate General Counsel (202/452-3779), or Mehrnoush Bigloo, Senior Attorney (202/475-6361), Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Ave. NW., Washington, DC 20551. For users of Telecommunication Device for the Deaf (TDD) only, contact 202/263-4869.

SUPPLEMENTARY INFORMATION: Federal Civil Penalties Inflation Adjustment Act

The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“FCPIA Act”), requires Federal agencies to adjust, by regulation, the CMPs within their jurisdiction to account for inflation. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act” or the “Act”) 1 amended the FCPIA to require the adjustment to be made annually rather than every four years, and to direct federal agencies to make the “catch-up” adjustment—the first inflation adjustment after the date of enactment of the 2015 Act—through an interim final rulemaking, to take effect no later than August 1, 2016.2 The Board is issuing this interim final rule to set the new civil monetary penalty levels pursuant to the required catch-up adjustment. The Board will apply these adjusted maximum penalty levels to any penalties assessed on or after August 1, 2016. Penalties assessed prior to August 1, 2016, will be subject to the amounts set in the Board's last adjustment pursuant to the FCPIA.3

1 Pub. L. 114-74, 129 Stat. 599 (2015) (codified at 28 U.S.C. 2461 note).

2 28 U.S.C. 2461 note, section 4(b)(1).

3 77 FR 68,680 (Nov. 16, 2012).

Under the 2015 Act, the initial catch-up adjustment is the percentage for each civil monetary penalty by which the Consumer Price Index for the month of October 2015 exceeds the Consumer Price Index for the month of October of the calendar year during which the amount of the penalty was established or adjusted other than pursuant to the FCPIA. On February 24, 2016, as directed by the 2015 Act, the Office of Management and Budget (OMB) issued guidance to agencies on implementing the required catch-up adjustment which included the relevant inflation multipliers per calendar year.4 Using OMB's multipliers, the Board calculated the adjusted penalties for its civil monetary penalties, rounding the penalties to the nearest dollar. Under the 2015 Act, the amount of any increase may not exceed 150 percent of the amount of the penalty on the date of the enactment of the 2015 Act, which is November 2, 2015.5 Accordingly, in a few cases where the calculated penalties exceeded the statutory maximum, the Board adjusted the respective penalty amount to 250 percent of the prior penalty. The Board also determined that none of the increases resulting from application of the 2015 Act's formula would have a negative economic impact and that any social costs of increasing those penalty limits would not outweigh the benefits of the increase. For this reason, the Board did not seek an exception from the application of the formula as permitted by section 4(c) of the 2015 Act.

4 OMB Memorandum M-16-06, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Feb. 24, 2016).

5 28 U.S.C. 2461 note, section 4(b)(2)(C).

Administrative Procedure Act

Pursuant to the Administrative Procedure Act (the “APA”), notice of proposed rulemaking and opportunity for public comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 6 As discussed above, the Board calculated the initial catch-up adjustment strictly in accordance with the requirements of the 2015 Act and OMB's implementing guidance. Moreover, the 2015 Act expressly requires the Board to publish the new catch-up penalty levels through an interim final rule, meaning that the rule can become effective prior to the receipt of public comments.7 For these reasons, the Board finds good cause to determine that publishing a notice of proposed rulemaking and providing opportunity for public comment prior to adopting a final rule are unnecessary.8 Nevertheless, because the Board is required to publish the catch-up penalty levels through an interim final rulemaking, the Board is inviting comments on this interim final rule. In view of the fact that the Board has calculated the catch-up adjustments strictly in accordance with OMB's implementing guidance, the Board specifically encourages comments identifying any issues with the Board's calculations under that guidance. The Board also invites comments regarding its determination that the bases for an exception under section 4(c) of the 2015 Act were not met.

6 5 U.S.C. 553(b)(3)(B).

7 28 U.S.C. 2461 note, section 4(b)(1).

8 5 U.S.C. 553(b).

Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires a regulatory flexibility analysis only for rules for which an agency is required to publish a general notice of proposed rulemaking. Because the 2015 Act requires agencies' catch-up adjustments to be made through an interim final rule, the Board is not publishing a notice of proposed rulemaking. Therefore, the Regulatory Flexibility Act does not apply.

Paperwork Reduction Act

There is no collection of information required by this interim final rule that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

List of Subjects in 12 CFR Part 263

Administrative practice and procedure, Claims, Crime, Equal access to justice, Lawyers, Penalties.

Authority and Issuance

For the reasons set forth in the preamble, the Board of Governors amends 12 CFR part 263 as follows:

PART 263—RULES OF PRACTICE FOR HEARINGS 1. The authority citation for part 263 is revised to read as follows: Authority:

5 U.S.C. 504, 554-557; 12 U.S.C. 248, 324, 334, 347a, 504, 505, 1464, 1467, 1467a, 1817(j), 1818, 1820(k), 1829, 1831o, 1831p-1, 1832(c), 1847(b), 1847(d), 1884, 1972(2)(F), 3105, 3108, 3110, 3349, 3907, 3909(d), 4717; 15 U.S.C. 21, 78l(i), 78o-4, 78o-5, 78u-2; 1639e(k); 28 U.S.C. 2461 note; 31 U.S.C. 5321; and 42 U.S.C. 4012a.

2. Section 263.65 is revised to read as follows:
§ 263.65 Civil monetary penalty inflation adjustments.

(a) Inflation adjustments. In accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990, the Board has set forth in paragraph (b) of this section the adjusted maximum amounts for each civil monetary penalty provided by law within the Board's jurisdiction. The authorizing statutes contain the complete provisions under which the Board may seek a civil monetary penalty. The adjusted civil monetary penalties apply only to penalties assessed on or after August 1, 2016.

(b) Maximum civil monetary penalties. The maximum civil monetary penalties as set forth in the referenced statutory sections are set forth in the table in this paragraph (b).

Statute Adjusted civil monetary
  • penalty
  • 12 U.S.C. 324: Inadvertently late or misleading reports, inter alia $3,787 Other late or misleading reports, inter alia 37,872 Knowingly or reckless false or misleading reports, inter alia 1,893,610 12 U.S.C. 334 275 12 U.S.C. 374a 275 12 U.S.C. 504: First Tier 9,468 Second Tier 47,340 Third Tier 1,893,610 12 U.S.C. 505: First Tier 9,468 Second Tier 47,340 Third Tier 1,893,610 12 U.S.C. 1464(v)(4) 3,787 12 U.S.C. 1464(v)(5) 37,872 12 U.S.C. 1464(v)(6) 1,893,610 12 U.S.C. 1467a(i)(2) 47,340 12 U.S.C. 1467a(i)(3) 47,340 12 U.S.C. 1467a(r): First Tier 3,787 Second Tier 37,872 Third Tier 1,893,610 12 U.S.C. 1817(j)(16): First Tier 9,468 Second Tier 47,340 Third Tier 1,893,610 12 U.S.C. 1818(i)(2): First Tier 9,468 Second Tier 47,340 Third Tier 1,893,610 12 U.S.C. 1820(k)(6)(A)(ii) 311,470 12 U.S.C. 1832(c) 2,750 12 U.S.C. 1847(b) 47,340 12 U.S.C. 1847(d): First Tier 3,787 Second Tier 37,872 Third Tier 1,893,610 12 U.S.C. 1884 275 12 U.S.C. 1972(2)(F): First Tier 9,468 Second Tier 47,340 Third Tier 1,893,610 12 U.S.C. 3909(d) 2355 12 U.S.C. 3110(a) 43,275 12 U.S.C. 3110(c): First Tier 3,462 Second Tier 34,620 Third Tier 1,730,990 15 U.S.C. 78u-2(b)(1): For a natural person 8,908 For any other person 89,078 15 U.S.C. 78u-2(b)(2): For a natural person 89,078 For any other person 445,390 15 U.S.C. 78u-2(b)(3): For a natural person 178,156 For any other person 890,780 15 U.S.C. 1639e(k)(1) 10,875 15 U.S.C. 1639e(k)(2) 21,749 42 U.S.C. 4012a(f)(5) 2056
    By order of the Board of Governors of the Federal Reserve System, July 13, 2016. Robert deV. Frierson, Secretary of the Board.

    Billing Code: 6210-01-P

    [FR Doc. 2016-16969 Filed 7-19-16; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 [Docket No.: FAA-2015-1746; Amdt. No. 91-342] RIN 2120-AK54 Changes to the Application Requirements for Authorization To Operate in Reduced Vertical Separation Minimum Airspace AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action revises the FAA's requirements for an application to operate in Reduced Vertical Separation Minimum (RVSM) airspace and eliminates the burden and expense of developing, processing, and approving RVSM maintenance programs. As a result of this revision, an applicant to operate in RVSM airspace will no longer be required to develop and submit an RVSM maintenance program solely for the purpose of obtaining an RVSM authorization. Because of other, independent FAA airworthiness regulations, all aircraft operators remain required to maintain RVSM equipment in an airworthy condition.

    DATES:

    Effective August 19, 2016.

    ADDRESSES:

    For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    For technical questions concerning this action, contact Charles Fellows, Aviation Safety Inspector, Avionics Branch, Aircraft Maintenance Division, Flight Standards Services, AFS-360, Federal Aviation Administration, 950 L'Enfant Plaza North SW., Washington, DC 20024; telephone (202) 267-1706; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Sections 106(f), 40113, and 44701 authorize the Administrator to prescribe regulations necessary for aviation safety. Section 40103 authorizes the Administrator to prescribe regulations to enhance the efficiency of the national airspace. This rulemaking is within the scope of these authorities because it removes an existing safety and airspace-related regulation that the FAA no longer finds necessary for aviation safety.

    I. Overview of Final Rule

    This action amends Appendix G of part 91 of Title 14 of the Code of Federal Regulations (14 CFR) by removing the requirement that any applicant for a Reduced Vertical Separation Minimum (RVSM) authorization must submit an RVSM maintenance program to the FAA for approval.

    II. Background

    The FAA's vertical separation standards establish the vertical distance that must separate aircraft routes in the national airspace system. In the early 1970's, rising air-traffic volume and fuel costs sparked an interest in reducing vertical separation standards for aircraft operating above flight level (FL) 290 (above 18,000 ft., flight levels are assigned in 500-ft. increments; FL290 represents an pressure altitude of 29,000 ft. referenced to a barometric pressure of 29.92 inches at sea level). At the time, the FAA required aircraft operating above FL290 to maintain a minimum of 2,000 ft. of vertical separation. Use of high-altitude routes was desirable, however, because the diminished atmospheric drag at these altitudes results in enhanced aircraft efficiency and a corresponding decrease in fuel consumption. Operators, therefore, sought and continue to seek not only the most direct routes, but also the most efficient altitudes for operation of their aircraft. Higher demand for these high-altitude routes has resulted in greater congestion.

    In 1981, the FAA initiated the Vertical Studies Program. This program, in conjunction with the RTCA (formerly Radio Technical Commission for Aeronautics) Special Committee (SC)-150 and the International Civil Aviation Organization (ICAO) Review of General Concept of Separation Panel (RGCSP), determined:

    • RVSM is “technically feasible without imposing unreasonably demanding technical requirements on the equipment;”

    • RVSM could provide “significant benefits in terms of economy and en-route airspace capacity;” and

    • Implementation of RVSM would require “sound operational judgment supported by an assessment of system performance based on: Aircraft altitude-keeping capability, operational considerations, system performance monitoring, and risk assessment.”

    In response to the findings made by the Vertical Separation Program, the FAA began a two-phase implementation of RVSM operations for aircraft registered in the United States (U.S.). In 1997, and as the first phase, the FAA published two amendments to part 91 of Title 14 of the Code of Federal Regulations (14 CFR). The first amendment established § 91.706 (Operations within airspace designed as Reduced Vertical Separation Minimum Airspace), which, among other things, allows operators of U.S.-registered aircraft to fly in RVSM airspace outside of the U.S. Appendix G (Operations in Reduced Vertical Separation Minimum (RVSM) Airspace), was added which contained a set of operational, aircraft design, and other standards applicable to those seeking to operate in RVSM airspace. See Reduced Vertical Separation Minimum Operations, (62 FR 17480; Apr. 9, 1997). Appendix G includes the requirement that all applicants for RVSM authorization must submit an approved RVSM maintenance program to the FAA.

    The second phase of RVSM implementation occurred in October 2003, with the publication of a second RVSM-related FAA rulemaking. Reduced Vertical Separation Minimum in Domestic Airspace, (68 FR 61304; Oct. 27, 2003 and 68 FR 70132; Dec. 17, 2003). The 2003 rule introduced RVSM airspace over the U.S. and, like the 1997 rulemaking, required all U.S.-registered RVSM operators to comply with the application, operations, and aircraft design requirements of part 91, appendix G. The FAA's RVSM program allows for 1,000 ft. of vertical separation for aircraft between FL290 and FL410 in U.S. airspace. Before the 2003 rule, air traffic controllers could only assign Instrument Flight Rules (IFR) aircraft flying at FL290 and above to FL290, 310, 330, 350, 370, 390, and 410 since the existing vertical separation standard was 2,000 ft. After the rule changes, IFR aircraft could also fly at FL300, 320, 340, 360, 380, and 400—nearly doubling capacity within this particular segment of airspace, mitigating the fuel penalties attributed to flying at sub-optimum altitudes, and increasing the flexibility of air traffic control.

    In 2008, the FAA reviewed its RVSM authorizations, which applied to more than 15,000 U.S.-registered aircraft. The FAA's evaluation found that the existing processes ensured compliance with RVSM operating requirements. At the same time, FAA representatives began meeting with the National Business Aviation Association (NBAA) to develop ways to streamline the RVSM application process to lower the burden for operators obtaining authorizations and reduce the FAA's workload associated with processing and granting these authorizations. The parties formed the RVSM Process Enhancement Team (PET) to focus on changes that could be accomplished without rulemaking. The PET completed its tasks in 2013. Among other things, it revised existing policies and guidance to facilitate more efficient processing of operator requests to change existing authorizations, and created a job aid to assist inspectors and standardize their review of operator applications. In a separate initiative, the FAA with input from industry determined that eliminating the redundant maintenance program component of the RVSM application would improve efficiency and reduce costs for both the agency and operators while maintaining the same high level of safety.

    The requirement for an applicant to submit a maintenance program with the application for an RVSM authorization was promulgated in 1997 when most aircraft required significant design changes or inspections to qualify for RVSM operation. RVSM operations have become much more common since then. RVSM systems are now incorporated into aircraft type designs or have been incorporated through modifications performed using supplemental type designs or amended type designs. Operators must properly maintain those systems as part of their airworthiness obligations, making a separate RVSM maintenance program redundant and unnecessary.

    A. Summary of the NPRM

    In May 2015, the FAA issued an NPRM, (15 FR 30394; May 28, 2015) that proposed to amend the requirements for an application to operate in RVSM airspace. The FAA proposed to remove and reserve paragraph (b)(1), of section 3 of Appendix G of part 91, to eliminate the requirement that any operator seeking RVSM authorization under § 91.180 and § 91.706 had to develop and submit an RVSM maintenance program for FAA approval.

    B. General Overview of Comments

    The comment period for the NPRM closed on July 27, 2015. The FAA received 38 comments. The commenters included the National Air Transportation Association (NATA) and the National Business Aviation Association (NBAA). Twenty commenters supported the rule change in its entirety, twelve commenters provisionally supported the change while supplying additional comments, and eight commenters opposed the rule change. The FAA divided the issues raised in the comments into three categories addressing: (1) Safety concerns; (2) further enhancements to the RVSM authorization process; and (3) miscellaneous comments or recommendations.

    III. Discussion of Public Comments and Final Rule Safety Concerns

    Although there were slight variations, many of the comments submitted in opposition to the proposal claimed that reducing the regulatory requirements for an RVSM authorization would reduce aviation safety.

    The FAA reiterates that this final rule eliminates an application requirement, and leaves intact FAA requirements to maintain RVSM equipment and operate RVSM authorized aircraft in an airworthy condition. As described in the NPRM, the requirement to submit a maintenance program as part of an RVSM application was promulgated in an environment where RVSM technology was not firmly established and RVSM maintenance procedures were unproven. As RVSM equipment was installed on more aircraft, and confidence in established maintenance procedures increased, the requirement for each applicant to develop its own RVSM-specific maintenance procedures ceased to produce any appreciable safety benefit.

    Sections 91.180 and 91.706 will continue to require operators to meet the equipment and performance standards specified in Appendix G to part 91. These performance standards were developed by the RTCA SC-150 and the ICAO RGCSP as the minimum performance standard for aircraft to conduct RVSM operation, and adopted by the FAA. In addition, §§ 91.405 and 91.407 continue to require operators to have their aircraft inspected and approved for return to service by authorized persons and otherwise maintained in accordance with part 43. Moreover, each person performing maintenance and preventive maintenance is required to do so using the methods, techniques, and practices prescribed in the manufacturer's maintenance manual, Instructions for Continued Airworthiness (ICA), or other means acceptable to the Administrator. The primary effect of this final rule is to remove the requirement for an applicant to submit an RVSM-specific maintenance program to the FAA as part of its application for an RVSM authorization.

    One commenter stated that the requirement to maintain an aircraft in a condition for safe flight, as codified in § 91.7, applies only to a pilot, as opposed to an operator. The commenter stated that an operator is only required to maintain RVSM equipment because of its maintenance program obligations.

    The FAA disagrees. As previously described, although this final rule eliminates an operator's obligation to submit a maintenance program as part of an RVSM application, operators will nevertheless continue to be required to maintain their RVSM equipment in accordance with applicable airworthiness standards. In particular, §§ 43.13, 91.405, and 91.407 continue to require aircraft to be inspected and approved for return to service in accordance with manufacturers' maintenance information or other material acceptable to the Administrator. Operators with maintenance programs, such as air carriers conducting operations under part 121, will continue to be required to maintain RVSM equipment in accordance with those programs.

    Two commenters raised the issue of identifying required maintenance information. One commenter stated that most RVSM applicants do not have the latest RVSM maintenance information until they acquire that information in the course of preparing to apply for an RVSM authorization. Another commenter stated that ICA may not be available for all RVSM designs. As an example, the commenter referred to aircraft modified to meet RVSM performance standards under a supplemental type certificate (STC), rather than with equipment installed under a type certificate (TC), and also to aircraft modifications classified as minor changes to type design.

    To the extent that these commenters assert that the requirement to submit a maintenance program as part of an RVSM application is necessary for operators to access or determine the appropriate maintenance instructions, the FAA disagrees. For many newer aircraft, RVSM capability is incorporated into the original type design. For other aircraft, incorporating alterations to meet RVSM performance requirements is classified as a major change to type design, and as such must be incorporated through an STC or an amended type certificate. In either case, § 21.50(b) requires, among other things, a TC or STC holder to make ICA available to any person required to comply with those ICA, including owners and operators. Each owner or operator should, therefore, have access to all required maintenance and preventive maintenance information.

    One commenter stated that he services aircraft that have been upgraded to RVSM capability by way of STCs, and removing the RVSM maintenance program requirement would remove the information from the aircraft records that identifies which STC is installed. The FAA disagrees. When STCs are incorporated into aircraft they constitute major changes to the aircraft type design. Identification of the design change and associated ICA are recorded in the appropriate aircraft records. Section 21.50 requires design approval holders to make ICA available to any owner, operator, or other person required to comply with their terms.

    Another commenter stated that submission of an RVSM maintenance program is necessary to identify necessary repairs to RVSM and other aviation data equipment and that the FAA has a statutory obligation, under 49 U.S.C. 44701, to promote the safe flight of civil aircraft. The FAA disagrees that submission of an RVSM maintenance program with an RVSM application for authorization is necessary to identify repairs for the reasons previously stated. Removal of the requirement will not negatively impact the safe flight of civil aircraft or conflict with the FAA's obligations under 49 U.S.C. 44701.

    Among the commenters who raised safety concerns, several recommended alternatives. One commenter recommended that the FAA require operators to “identify practices” for the maintenance of RVSM equipment (alternative 2 considered in the proposal), but without requiring that these practices be submitted as part of an application. The same commenter also recommended that the FAA modify the alternative to specifically require each operator to identify the TC or STC holder's ICA and ensure each is listed in the operator's maintenance tracking system.

    The FAA believes that adopting the proposed alternative would provide no greater safety benefit and would do less to reduce the unnecessary burden on industry than eliminating the requirement to submit an RVSM maintenance program for approval. The commenter's recommendation would continue to require operators to provide redundant paperwork as part of each RVSM application. The FAA also believes that requiring an applicant to identify maintenance practices, in addition to the existing requirements to follow those practices, would not meaningfully contribute to aviation safety. As stated previously, § 21.50 requires design approval holders to make ICA available to any owner, operator, or other person required to comply with the terms of those ICA.

    With respect to the recommendation to require operators to track RVSM-specific information in a maintenance tracking system, the FAA agrees that any operator using a maintenance tracking system should use that system to track the maintenance of RVSM equipment as identified in the appropriate ICA. However, some operators—such as part 91 operators—are not required to develop maintenance tracking systems. To the extent that the commenter is recommending that the FAA require part 91 operators to implement maintenance tracking systems, the recommendation is outside the scope of this rulemaking.

    One commenter observed that the FAA often rejects, for various reasons, maintenance programs that accompany operators' applications for RVSM authorizations. The commenter stated that the existence of these rejections is evidence that continued FAA oversight is necessary to maintain safety. The FAA disagrees. The FAA often rejects a program submission or requests that additional revisions be made to an application for reasons related to an operator's lack of familiarity with the process for developing a program and submitting an application. These issues may be unrelated to the adequacy of a particular maintenance program. Moreover, many part 91 operators applying for RVSM authorizations do not perform maintenance themselves—RVSM or otherwise—and are reproducing plans developed by an original equipment manufacturer. Regardless of who performs the maintenance, §§ 91.405 and 91.407 require each aircraft owner or operator to have the aircraft inspected and approved for return to service by an individual or entity authorized by § 43.7.

    One commenter stated that the expense and effort required to create an RVSM maintenance program helps to ensure each operator's commitment to safety. Another commenter stated that the requirement to develop and submit a maintenance program encourages operators to adhere to the appropriate maintenance information. The FAA believes that imposing a requirement on operators to submit a maintenance program for approval imposes a significant cost on operators that is not an effective or appropriate means of obtaining an operators' commitment to safety. As previously described, operators will continue to be required to maintain their aircraft in an airworthy condition in accordance with existing regulations.

    Further Enhancements to the RVSM Authorization Process

    Three comments were received that the proposal “did not go far enough,” and recommended that the FAA eliminate RVSM approvals entirely. For example, one commenter stated that the industry's experience in safely installing, maintaining, and operating RVSM equipment demonstrates that there is no longer a need for RVSM approvals. The FAA proposed only to remove the requirement to submit a maintenance program from the application for RVSM approval. The FAA did not propose to eliminate RVSM approvals entirely. The commenter's recommendation is outside the scope of this rulemaking.

    One individual commenter recommended that, in cases where an operator was applying to operate an aircraft which was previously listed on an authorization, the FAA should issue a temporary, interim RVSM approval. The commenter stated that the NPRM underestimated the costs of compliance with the FAA's RVSM approval program, because an operator awaiting RVSM authorization consumes significant additional funds flying below optimal altitudes. Operators are required to apply for a new authorization whenever an aircraft changes ownership or registration, regardless of whether the underlying aircraft is modified. The FAA did not propose to introduce interim RVSM authorizations. The commenters' recommendation is, therefore, outside the scope of this rulemaking.

    Miscellaneous Comments or Recommendations

    One commenter stated that a reduction to the FAA's workload is not a legitimate rationale for FAA rulemaking and that the FAA's goal and statutory obligation is to promote safe flight of civil aircraft. The FAA notes that this final rule eliminates a requirement that is no longer necessary to provide the level of safety required for these operations. The FAA is required by numerous statutes and executive orders to consider both the costs and benefits of its regulations and to adopt proposals that are cost justified. Costs incurred by the FAA are a legitimate factor to be considered in accomplishing this analysis. See, e.g., 5 U.S.C. 601-612 (Regulatory Flexibility Act); Executive Order 13563; Executive Order 12866.

    One individual commenter stated that the industry assumes this rule change would allow an operator to obtain RVSM approval by submitting no more than a letter to the FAA. The FAA disagrees. The requirement to submit an RVSM maintenance program, a requirement eliminated by this rule, was only one of three components of an RVSM application. Under §§ 91.180, 91.706, and Appendix G to part 91, the FAA continues to require an applicant to submit documentation establishing that its aircraft is RVSM compliant, and that the applicant's crew has adequate knowledge of RVSM requirements, policies, and procedures as set forth in § 3(c)(2) of Appendix G. For part 121 and part 135 operators, this requires initial and recurring pilot training as specified in § 3(b)(2) of Appendix G.

    One individual commenter recommended that the FAA eliminate the requirement for maintenance program approval only with respect to aircraft that are RVSM capable “under a TC.” The commenter recommended that the FAA continue to require maintenance program approval for any aircraft that is RVSM capable as a result of an alteration performed in accordance with an STC because an STC indicates a major deviation from the aircraft's original type design and maintenance procedures would not be listed in the manufacturer's recommended procedures.

    The FAA disagrees that aircraft with RVSM equipment installed pursuant to an STC should be treated differently from aircraft with RVSM equipment installed as part of an original or amended type design. Both TC and STC holders must develop ICA, and § 43.13 continues to require maintenance and preventive maintenance to be performed in accordance with the current manufacturer's maintenance manual, ICA, or other methods, techniques, and practices acceptable to the Administrator. Because ICA are available regardless of whether RVSM equipment is installed under a TC or an STC, and because all operators are equally obligated to maintain their equipment in accordance with this maintenance information, the FAA finds no reason to differentiate between these two kinds of operators.

    One individual commenter stated that avionics technology has undergone a major transformation in the last 15 years, moving away from discrete components and towards more fully integrated systems. The commenter recommended that authorizations should similarly be analyzed and approved in a more unified manner, to reduce the number of individual performance-based approvals. The commenter's recommendation that the FAA review all performance-based approvals in a single application is outside the scope of this rulemaking.

    Several individual commenters, both supporting and opposing the proposal, stated that the burden on operators to obtain approval of an RVSM maintenance program could be reduced substantially by standardizing what is required by FAA inspectors in an RVSM application. The FAA has published and continues to provide guidance to its inspectors on the requirements for the issuance of an RVSM authorization. In addition to the guidance, the FAA has developed job aids to assist in the development of an RVSM program manual. The agency believes these ongoing efforts will continue to increase standardization in the application process.

    IV. Regulatory Notices and Analyses A. Regulatory Evaluation

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

    Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. Because this rulemaking is a retrospective regulatory review, the expected outcome would be a cost savings with positive net benefits. The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and procedures. Such a determination has been made for this final rule. The reasoning for this determination follows:

    This rulemaking responds to requests from industry and FAA program offices. The rule removes the requirement that operators seeking RVSM authorization must submit an RVSM maintenance program for FAA approval. It eliminates the considerable burden and expense to operators and FAA safety inspectors of developing, processing, and approving RVSM maintenance programs.

    When the former requirement was established, RVSM systems were yet to be incorporated into initial aircraft type designs. This is no longer the case. RVSM systems are now incorporated into initial aircraft type designs, and operators must properly maintain these systems as part of their airworthiness obligation. In light of these developments, the requirement for RVSM applicants to submit specialized maintenance programs is redundant. Removing this redundancy has no effect on aviation safety.

    One commenter stated the NPRM underestimated the cost of compliance, because an operator awaiting RVSM authorization incurs cost flying below optimal altitudes. As the operators are already required to incur this cost, this rule does not change this cost. The FAA did not propose to introduce interim RVSM authorization, therefore no new cost are required. The FAA notes that no other comments were received on our NPRM cost-savings determination or methodology. While the same methodology is used here, the FAA has updated the number of maintenance programs expected to be submitted and the wage for the safety inspector to 2015 dollars.

    The relief to part 91 operators and FAA safety inspectors from the streamlining of regulations equals the number of RVSM maintenance programs approved (including growth) multiplied by the costs per operator of submitting an RVSM maintenance program for FAA approval. To that result, the FAA added the number of RVSM maintenance programs approved multiplied by the cost of an FAA safety inspector to review and approve an RVSM maintenance program multiplied by the average number of hours FAA safety inspectors expend reviewing and approving each RVSM maintenance program. The value for these variables is shown below.

    CY 2015—Number of maintenance programs submitted to FAA for approval 1 Average annual
  • growth
  • (2010-2015) in the number of
  • maintenance
  • programs
  • submitted to FAA
  • for approval
  • (used as forecast
  • of 2016-2020
  • growth)
  • Operator cost for
  • submitting a
  • maintenance
  • program to the
  • FAA for approval 2
  • Hours expended by
  • FAA safety
  • inspectors
  • reviewing
  • maintenance
  • programs for
  • approval 3
  • 2,437 4.46% 4 $5,000 12

    Applying these estimates, the FAA anticipates that operators would experience cost savings of approximate $12.7 million in year one of implementation. The FAA calculated this figure by multiplying the estimated number of maintenance programs expected to be submitted to the FAA for approval during CY 2016 (2,546 approvals) by each operator's cost for submitting a RVSM maintenance program to the FAA for approval ($5,000).

    1 FAA National Program Tracking and Reporting Subsystem (NPTRS).

    2 National Business Aviation Association—Part 91 Operator Cost for Submitting an RVSM Approval.

    3 FAA Safety Inspectors involved in RVSM authorization processing at FAA Flight Standards District Offices (FSDO).

    4 This amount consists of $3,123 in operator costs for submitting an application form and supporting documentation to a RVSM manual preparation service, and then reading, understanding, signing, and submitting the completed RVSM maintenance program manual to the FAA for approval. The remaining $1,977 is an approximation of the amount paid by an operator for RVSM manual preparation services. The estimate of $1,977 is an average of quotes provided on the Internet by seven companies providing this service. These seven quotes ranged from $795 to $3,850.

    In addition to the cost savings realized by operators, eliminating the requirement would free 30,552 hours for FAA safety inspectors to perform alternative tasks during year one of implementation. The hours are calculated by multiplying the average number of hours FAA safety inspectors expend reviewing and approving each RVSM maintenance program submitted (12 hours) by the number of RVSM maintenance program approvals estimated for CY 2016 (2,546 approvals). The annual cost savings of $1.4 million to the FAA equals the 30,552 hours multiplied by the FAA fully-burdened wage of $45.96.5 As per Department of Transportation (DOT) guidance, the FAA assumes that there will be a 1.2 percent projected annual increase in real wages.6

    5 Source: 2015 General Schedule Salary Table as published by the U. S. Office of Personnel Management. The salary used for calculating costs savings is the fully-burdened hourly wage for a GS 12 Step 5, which is the mid-range salary for this position.

    6 Office of the Secretary of Transportation Memorandum, “Revised Departmental Guidance on Valuation of Travel Time in Economic Analysis”, July 2014.

    Based on these calculations, the cost savings to operators and the FAA during the first five years of the rule's implementation will be approximately $77.5 million ($67.6 million present value). The results are presented below:

    BILLING CODE 4910-13-P ER20JY16.002 BILLING CODE 4910-13-C B. Regulatory Flexibility Determination

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

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

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

    Under the RFA, the FAA must determine whether a rule significantly affects a substantial number of small entities. This determination is typically based on small entity size and revenue thresholds that vary depending on the affected industry.7 In most cases, the FAA cannot determine the size of part 91 operators because financial and employment data for privately held entities is sparse. Nevertheless, the FAA believes the number of small business entities is substantial. The FAA estimates that this rulemaking will save each affected small entity $5,000 per RVSM authorization.

    7 Thresholds are based on the North American Industry Classification System (NAICS). The NAICS is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy.

    Based on the criteria used in the initial regulatory flexibility analysis and used again here, this rule will impact a substantial number of part 91 operators. Accordingly, the FAA prepared a final regulatory flexibility analysis for part 91 operators, as described in the next section. The FAA received no comments to the initial regulatory flexibility analysis for this rule.

    Regulatory Flexibility Analysis

    Under section 603(b) of the RFA (as amended), each regulatory flexibility analysis is required to address the following points: (1) Reasons the agency considered the rule, (2) the objectives and legal basis for the rule, (3) the kind and number of small entities to which the rule will apply, (4) the reporting, recordkeeping, and other compliance requirements of the rule, and (5) all Federal rules that may duplicate, overlap, or conflict with the rule.

    Reasons the FAA Considered the Rule

    All part 91 operator RVSM-related obligations are required by FAA airworthiness regulations to maintain RVSM equipment in an airworthy condition. Thus, the requirement that operators seeking RVSM authorization to develop and submit an RVSM maintenance program for FAA approval, is redundant.

    The Objectives and Legal Basis for the Rule

    The FAA's authority to issue rules regarding aviation safety is found in §§ 106, 40113, and 44701 of 49 U.S.C., which authorize the FAA Administrator to prescribe regulations necessary for aviation safety. Section 40103 authorizes the Administrator to prescribe regulations to enhance the efficiency of the national airspace. This rulemaking is within the scope of these authorities because it removes existing safety and airspace-related regulations that the FAA no longer finds necessary to protect aviation safety.

    The Kind and Number of Small Entities to Which the Rule Will Apply

    This final rule will affect a substantial number of part 91 operators. The FAA estimates that this proposed rulemaking would save each affected small entity $5,000 per RVSM authorization.

    The Reporting, Recordkeeping, and Other Compliance Requirements of the Rule

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

    All Federal Rules That May Duplicate, Overlap, or Conflict With the Rule

    This final rule eliminates an application requirement for submission of an RVSM maintenance program and leaves intact current requirements to maintain RVSM equipment and operate RVSM authorized aircraft in an airworthy condition. Sections 43.13, 91.405, and 91.407 continue to require aircraft to be inspected and approved for return to service in accordance with manufacturers' maintenance information or other material acceptable to the Administrator. Operators with approved maintenance programs will continue to be required to maintain RVSM equipment in accordance with their approved programs.

    Other Considerations Alternatives

    Alternative 1: Retain the current requirement for submission of an RVSM maintenance program for approval.

    Analysis: Without changes to Appendix G of part 91, any operator seeking RVSM authorization would continue to be required to submit an RVSM maintenance program. A non-commercial operator with no requirement to hold a maintenance program for any other performance-based authorization would nevertheless be required to submit an RVSM maintenance program for approval—despite the fact that the operator is already required by FAA regulations to maintain RVSM equipment in accordance with its type design and in a condition for safe operation. Furthermore, the review and approval of this information would continue to consume FAA resources.

    Alternative 2: Replace the current Appendix G requirement that operators include an “approved RVSM maintenance program” with a requirement that operators “identify practices” for the maintenance of RVSM equipment.

    Analysis: Relaxing Appendix G application requirements to allow operators to “identify practices” for the maintenance of RVSM equipment would allow a non-commercial operator to cite the applicable manufacturer's maintenance manual or ICA. This alternative would likely reduce the time and resources spent by operators and the FAA in compiling and reviewing RVSM applications. This alternative is undesirable, however, because it fails to address the absence of any safety benefits associated with continuing to require an RVSM maintenance program as a component of an RVSM application.

    The FAA expects this rule will save each affected small entity $5,000 per RVSM authorization. Over a 5-year period, the number exceeds $10,000 per RVSM authorization. While the rule may not have a significant economic impact, it would have a positive impact on a substantial number of small entities.

    C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact and, therefore, no effect on international trade.

    D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

    E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

    F. International Compatibility and Cooperation

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

    G. Environmental Analysis

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

    V. Executive Order Determinations A. Executive Order 13132, Federalism

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

    B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

    VI. How To Obtain Additional Information A. Rulemaking Documents

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

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

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

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

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

    B. Comments Submitted to the Docket

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

    C. Small Business Regulatory Enforcement Fairness Act

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

    List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Aviation safety.

    The Amendment

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

    PART 91—GENERAL OPERATING AND FLIGHT RULES 1. The authority citation for part 91 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

    2. Amend Appendix G, Section 3 by removing and reserving paragraph (b)(1). Issued under authority provided by 49 U.S.C. 106(f), 40103, 40113, and 44701(a) in Washington, DC, on July 12, 2016. Michael Huerta, Administrator.
    [FR Doc. 2016-17155 Filed 7-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 417, 420, 431, and 435 [Docket No.: FAA-2014-0418; Amdt. Nos. 417-4, 420-7, 431-4 and 435-3] RIN 2120-AK06 Changing the Collective Risk Limits for Launches and Reentries and Clarifying the Risk Limit Used To Establish Hazard Areas for Ships and Aircraft AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    The FAA is amending its regulations concerning the collective risk limits for commercial launches and reentries. These changes include: Separating the risk limits for commercial launches and reentries; aggregating the risk posed by impacting inert and explosive debris, toxic release, and far field blast overpressure; limiting the aggregate risk for these three hazards to 1 × 10−4; reducing the number of significant digits used in launch and reentry risk analysis; and various non-substantive clarifying revisions. These changes update FAA regulations to reflect the United States Government's greater experience with commercial launch and reentry and to align more closely the FAA's risk standards with those of other United States Federal agencies, while continuing to protect public safety.

    DATES:

    Effective September 19, 2016.

    ADDRESSES:

    For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    For technical questions concerning this action, contact Rene Rey, AST-300, Office of Commercial Space Transportation, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-7538; email [email protected].

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The Commercial Space Launch Act of 1984, as amended and codified at 51 United States Code (U.S.C.) Subtitle V—Commercial Space Transportation, Ch. 509, Commercial Space Launch Activities, 51 U.S.C. 50901-50923 (the Act), authorizes the Secretary of Transportation and thus the FAA, through delegations, to oversee, license, and regulate commercial launch and reentry, and the operation of launch and reentry sites as carried out by U.S. citizens or within the United States. 51 U.S.C. 50904, 50905. The Act directs the FAA to exercise this responsibility consistent with public health and safety, safety of property, and the national security and foreign policy interests of the United States. 51 U.S.C. 50905. Section 50901(a)(7), in relevant part, directs the FAA to regulate private sector launches, reentries, and associated services only to the extent necessary to protect the public health and safety and safety of property. The FAA is also responsible for encouraging, facilitating, and promoting commercial space launches and reentries by the private sector. 51 U.S.C. 50903.

    I. Overview of Final Rule

    The FAA is adopting this final rule to revise certain regulations related to the collective risk limits for commercial launches and reentries in part 417 (Launch Safety), part 420 (License to Operate a Launch Site), part 431 (Launch and Reentry of a Reusable Launch Vehicle (RLV)), and part 435 (Reentry of a Reentry Vehicle Other Than a Reusable Launch Vehicle (RLV)) of Title 14 of the Code of Federal Regulations (14 CFR).

    This final rule divides the risk analysis for launch and reentry, providing a separate risk budget for each. For all launches, regardless of vehicle type, this final rule requires a single expected number of casualties (Ec) be calculated by aggregating the risk posed to the collective members of the public from three hazards: Impacting and inert explosive debris, toxic release, and far field blast overpressure. This final rule also revises the acceptable risk threshold for launch from an Ec of 30 × 10−6 for each hazard to an Ec of 1 × 10−4 for all three hazards combined. Furthermore, this final rule expresses the revised Ec limit using the correct number of significant digits to properly represent the uncertainty in Ec calculations. This final rule changes the FAA's collective risk limits for launch and reentry to more closely match the Ec standard currently used by the United States (U.S.) Air Force and the National Aeronautics and Space Administration (NASA) for government missions, and to account for the level of uncertainty that exists in the Ec calculations.

    This final rule also makes two revisions to § 417.107 to clarify the launch and reentry regulations. The first revision removes the phrase “including each planned impact” from § 417.107(b)(1) to clarify that public risk is assessed from lift-off through orbital insertion for orbital launches and from lift-off to final impact for suborbital launches. The second revision modifies § 417.107(b)(3) and (b)(4) to make transparent the criteria for establishing hazard areas by replacing the references to equivalent levels of safety for water borne and aircraft hazard areas required for launch from a federal launch range with the actual levels of safety provided by hazard areas for launches from a federal range in 2006, the year the FAA promulgated § 417.107. Under § 417.107(b)(3), a hazard area for water borne vessels satisfies part 417 if the probability of impact with debris capable of causing a casualty on any potential water borne vessel within the hazard area does not exceed 0.00001 (1 × 10−5). Under § 417.107(b)(4), a hazard area for aircraft will satisfy part 417 if the probability of impact with debris capable of causing a casualty on any potential aircraft within that hazard area does not exceed 0.000001 (1 × 10−6). These clarifying edits do not change the risk requirement for launch licensees or launch license applicants.

    Summary of the Costs and Benefits of the Final Rule

    The final rule will result in net benefits for both the commercial space transportation industry (industry) and government by reducing the number of waivers that must be prepared by the industry and processed by the government for launches with an aggregate Ec between 90 × 10−6 and 149 × 10−6, and by averting unnecessary mission delays and scrubs. The resulting savings for both the industry and the FAA from reducing the number of waivers range from a low estimate of approximately $8.3 million to a high estimate of $16.7 million ($5.8 million and $11.7 million present value at a 7% discount rate, respectively).

    II. Background

    An operator conducts a launch using an expendable launch vehicle (ELV) or a reusable launch vehicle (RLV). An ELV is a launch vehicle whose propulsive stages are flown only once. 14 CFR 401.5. An RLV is a launch vehicle that is designed to return to Earth substantially intact and, therefore, may be launched more than one time or that contains vehicle stages that may be recovered by a launch operator for future use in the operation of a substantially similar launch vehicle. Id. Reentry is conducted with RLVs or other reentry vehicles. A reentry vehicle is a vehicle designed to return from Earth orbit or outer space to Earth substantially intact, and includes a reentering RLV. Id.

    Parts 417, 420, 431, and 435 (collectively, the collective risk regulations) limit the collective risk that a commercial launch or reentry may pose to the public. The FAA's collective risk regulations, as originally promulgated, were based primarily on Ec limits that the U.S. Air Force imposed on launches from federal launch ranges at the time the FAA began establishing its own Ec limits.1 In addition to imposing Ec limits on risk posed by launches and reentries to collective members of the public, these regulations also impose separate limits on the risk posed by these operations to individual members of the public.

    1See, e.g., Commercial Space Transportation Licensing Regulations, Final Rule (Launch Licensing Rule), 64 FR 19586, 19605 n.11 (Apr. 21, 1999).

    In July 2014, the FAA published in the Federal Register a notice of proposed rulemaking (2014 NPRM) proposing various revisions to the FAA's launch and reentry regulations.2 This final rule adopts the proposal outlined in the 2014 NPRM, with minor modifications and clarifications in response to comments from the public.

    2Changing the Collective Risk Limits for Launches and Reentries and Clarifying the Risk Limit Used to Establish Hazard Areas for Ships and Aircraft, 79 FR 42241 (July 21, 2014).

    A. Statement of the Problem

    Prior to the 2014 NPRM, developments in the industry and among U.S. Government agencies led the FAA to question its collective risk regulations. In 2010, the U.S. Air Force, after conducting over 5,000 launches under a 30 × 10−6 Ec limit, determined that it could increase its Ec limit from 30 × 10−6 per hazard to 100 × 10−6 for the aggregate public risk associated with debris, toxicity, and far field blast overpressure without harming public safety. The U.S. Air Force's new Ec standards also apply a separate Ec limit to reentry, limiting reentry Ec to 100 × 10−6 for the aggregate public risk associated with all hazards, which typically include debris, toxicity, and far field blast overpressure. In addition, in 2010 NASA also revised its risk acceptability policy to limit the Ec from launch and reentry missions to 100 × 10−6 each.

    Because the FAA's collective risk regulations were based on the U.S. Air Force's former 30 × 10−6 limit—a limit that both the U.S. Air Force and NASA, after considerable experience, have now revised—the FAA questioned in the 2014 NPRM whether its collective risk limits, revised by this final rule, continued to represent appropriate public risk criteria for commercial ELV and RLV operations. In addition, the FAA's own experience led the agency to question whether those Ec limits created an obstacle to NASA's implementation of the National Space Policy (e.g., NASA proposed commercial flights to the International Space Station that would not meet FAA's current Ec limits).3

    3See National Space Policy of the United States of America (June 28, 2010), available at https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf.

    Finally, the FAA also sought to address in the 2014 NPRM whether its former collective risk regulations sufficiently distinguished between commercial launch and reentry risk. Instead of regulating risk based on whether the operation in question was a launch or a reentry, the former collective risk regulations focused on the type of vehicle used in the operation, namely whether the vehicle was an ELV, RLV, or a reentry vehicle.

    B. Summary of the 2014 NPRM

    The 2014 NPRM proposed several revisions to the FAA's risk framework. These proposals included: Aggregating launch hazards and establishing an Ec limit of 1 × 10−4, thus reducing the number of significant digits in a launch or reentry risk analysis; separating the risk limits for the launch and reentry of a reentry vehicle; including toxic release as a hazard in the risk analysis for reentries; and clarifying the acceptable risk threshold for impact with ships and aircraft in hazard areas. For more detailed information, interested parties may consult the preamble of the 2014 NPRM.

    C. General Overview of Comments

    The comment period for the July 2014 NPRM closed on October 20, 2014. The FAA received comments from nine commenters, including ACTA Inc. (ACTA), Blue Origin, LLC (Blue Origin), Lockheed Martin Corporation (Lockheed Martin), Orbital Sciences Corporation (Orbital Sciences), Sierra Nevada Corp. (Sierra Nevada), Space Exploration Technologies Corp. (SpaceX), XCOR Aerospace (XCOR), and two individual commenters. Most of the commenters supported the proposed changes, and some suggested additional changes that are discussed more fully below. Several commenters fully supported the proposed changes, and one commenter opposed the proposed changes. The comments focused on the following general areas of the proposal:

    • Individual risk limits • Separation of launch and reentry • Significant figures • Ship and aircraft hazard areas • Including toxic release in the reentry risk analysis III. Discussion of Public Comments and Final Rule A. Individual Risk

    As discussed in the 2014 NPRM, this final rule does not substantively revise the FAA's limitation on risk posed to individuals found in §§ 417.107, 431.35, and 435.35.4 The individual risk limits in § 417.107(b)(2) prohibit launch risk to an individual from exceeding 1 × 10−6 for each hazard (debris, toxic release, and far field blast overpressure) for launch of an ELV. For the launch of a RLV or other reentry vehicle, §§ 431.35(b)(1)(ii) and 435.35 continue to prohibit the risk to an individual from exceeding 1 × 10−6 per mission. The FAA proposed no change to this risk limit, so any change now would be outside the scope of the proposal. Nonetheless, the comments raise issues of interest and are addressed below.

    4 However, it should be noted that the FAA made a non-substantive change to 417.107(b)(2) to improve consistency and clarity.

    XCOR agreed that no change is necessary because it is easier for launch operators to mitigate risk to a particular individual than the collective public, and because the FAA has never waived individual risk for launches in the past. On the other hand, Orbital Sciences recommended that the FAA “[e]xamine historical data for all U.S. launches to determine the highest level of risk realized by any individual member of the public and propose a more realistic . . . risk [figure] based on this successful precedent.” Orbital Sciences also recommended that the FAA adopt “identical risk limits for individual members of the public” for U.S. Government and commercial launches.

    The FAA disagrees with Orbital Sciences' recommendation to revise the individual risk threshold. Unlike the FAA's collective risk limitation, the FAA is aware of only a small number of historical U.S. government launches for which the predicted individual risk for any one member of the public exceeded 1 × 10−6. From a statistical perspective, this casualty-free launch record is the expected outcome because 1 × 10−6 corresponds to a one-in-a-million chance of a particular person being a casualty and there have been no more than a few thousand launches from the United States. The FAA therefore finds insufficient evidence at this time to justify relaxing the current individual risk limits, which are an integral part of an interdependent set of safety requirements that have produced a flawless public safety record for U.S. launches and reentries. Furthermore, the FAA notes that limiting risk to individual members of the public at the 1 × 10−6 level is consistent with the consensus standard produced by U.S. range safety organizations as adopted by NASA and the U.S. Air Force.

    ACTA stated that maintaining the current individual risk thresholds perpetuates inconsistent individual risk standards for ELVs, RLVs, and reentry vehicles. ACTA observed that § 417.107(b)(1)(ii) limits individual risk to 1 × 10−6 for each hazard for ELVs. ACTA stated that this was inconsistent with the risk threshold for RLVs and reentry vehicles in § 431.35(b)(2)(ii), which limits total risk to an individual to 1 × 10−6 over the course of the entire mission, without any reference to specific hazards. As a result, ACTA argued, ELV missions would have a different individual risk criterion than missions involving an RLV or other reentry vehicle.

    ACTA's recommendation to harmonize all individual risk limits is outside the scope of the current rulemaking. Also, the FAA has insufficient data to justify a change to the individual risk criteria for either launch or reentry, and thus no change was proposed. Finally, the current regulatory framework governing individual risk for launch and reentry risk has successfully protected the public since 2000.

    B. Separating Ec for Launch and Reentry

    The FAA proposed to separate the Ec limits for the launch and reentry of all reentry vehicles, instead of applying a single risk limit to both phases of a mission.5

    5 The separation of Ec limits for launch and reentry affects §§ 431.35(b) and 435.35.

    Blue Origin, Lockheed Martin, Orbital Sciences, and SpaceX fully supported the proposal to separate launch and reentry risk. ACTA supported the proposal to separately assess launch and reentry risk if reentry occurs after a health check, but noted that “separation of risk budgets for launch and reentry ignores the risk contribution from a failure to initiate a planned reentry.” In particular, ACTA noted that “[t]here does not appear to be any consideration for consequences if the health check prior to reentry fails. . . . [The vehicle's] orbit will eventually degrade and re-enter . . . [and the] risk of this potentially uncontrolled re-entry (if the health of the vehicle can never be restored) appears to be neglected.”

    ACTA is correct that the FAA does not regulate the risk associated with reentry vehicles or parts of reentry vehicles that do not initiate or attempt to initiate a purposeful reentry. As the FAA has explained, the Act limits the FAA's licensing of reentry to scenarios involving purposeful reentry; 6 therefore, the FAA is prohibited from considering the “possibility of a random uncontrolled reentry that occurs as a result of a reentry vehicle ceasing to function upon arrival in orbit.” 7

    6 Waiver of Acceptable Mission Risk Restriction for Reentry and a Reentry Vehicle, 75 FR 75619, 75620 (Dec. 6, 2010).

    7 The Waiver explained that “[b]ecause a random uncontrolled reentry arising out of a reentry vehicle ceasing to function upon arrival in orbit is not purposeful and is thus not licensed, an interpretation that section 431.35 applies to this type of reentry would conflict with” limitations on the FAA's authority.

    Although the 2014 NPRM did not propose to change the requirement that suborbital launches and reentries be subject to a single launch Ec, the FAA invited comment on the issue. Sierra Nevada commented that suborbital flights also should have separate risk limits for launch and reentry because each phase of flight required independent operational decisions.

    XCOR, on the other hand, commented that suborbital vehicles should continue to have a single risk limit because, for a suborbital launch, “reentry is a physical inevitab[ility]”; there is “no intervening event between launch and reentry”; and that “reentry is closely proximate in time—four minutes, for most concepts to launch.”

    The FAA agrees with XCOR that a suborbital mission should continue to be analyzed using a single risk budget for the entire mission, from launch through final impact, because there is no intervening event between launch and reentry and because reentry is a physical inevitability. Moreover, separating launch and reentry risk limits for suborbital flights is beyond the scope of this final rule because it would require revising the definitions of “reentry” and “launch” found in § 401.5, changes the NPRM did not propose.

    The FAA will require separate analysis of the risks associated with launch and reentry because the two are separate events. A launch may not always be successful, and a single risk limit that encompasses both launch and reentry makes reentry risk calculations unnecessarily dependent on the probability of failure associated with launch. The FAA leaves unchanged, however, the requirement that suborbital launches and reentries must comply with a single launch Ec limit that encompasses the entire operation from launch through final impact.

    C. Revising the Acceptable Risk Standard

    The FAA proposed to revise the acceptable risk limit for launch to 1 × 10−4, encompassing all three hazards—debris, toxic release, and far field blast overpressure. This would amend the risk framework's three components by aggregating the analysis of debris, toxics, and far field blast overpressure; establishing a new, unified risk standard for the three primary hazards combined; and revising the risk standard to be expressed using one significant figure. The commenters addressed each of these issues separately.

    1. Aggregating Ec for Debris, Toxics, and Far Field Blast Overpressure

    ACTA, Orbital Sciences, and SpaceX supported the proposal to aggregate risk calculations. The FAA received no negative comments on this component of the proposal. Therefore, this final rule replaces the prior requirement to satisfy three separate Ec criteria (one each for debris, toxics, and far field blast overpressure) with a single Ec criterion accounting for all three primary hazards.

    2. Revising the Number of Significant Figures

    Numerous commenters, including Blue Origin, Lockheed Martin, Orbital Sciences, and SpaceX, supported the FAA's proposal to express the risk threshold using one significant figure. Lockheed Martin stated that the proposal “would improve efficiency and maintain a level of safety for commercial launches that is commensurate with the current high level of safety associated with civil and military launches.”

    ACTA and an individual commenter advocated against changing the number of significant figures. An individual commenter recommended that one significant figure would be more appropriate at the level of 1 × 10−5. ACTA agreed with the proposal to increase the risk limitations insofar as “it is reasonable to apply a higher acceptability limit (around 100 × 10−6),” but also stated the FAA's proposal to both raise the limit and reduce the number of significant figures resulted in an effective increase of “the acceptable risk limit to 50% above current Air Force and NASA practice.” Referring to the effects of revising the number of significant figures, ACTA stated that “the difference between 100 × 10−6 and 149 × 10−6 is real and significant.” ACTA also stated that, because of this “effective” 50% increase, the FAA's proposal would not maintain safety levels for commercial space transportation commensurate with the current requirements for civil and military reentries. Finally, ACTA also disagreed with the FAA's rationale for increasing the acceptable risk limit. In particular, ACTA stated that it is inappropriate to exceed the Range Commanders Council (RCC) 321 consensus standard; the success of a relatively small number of missions operated under waivers is statistically irrelevant; and the continued use of waivers is reasonable in a developing industry.

    The FAA disagrees that the difference between 100 × 10−6 and 149 × 10−6 is real and significant because the uncertainty associated with many of the variables that go into determining Ec are too large to justify using more than one significant digit. The FAA and others, including ACTA, have performed extensive uncertainty analyses for both launch area and downrange overflight. These analyses accounted for aleatory— irreducible—and epistemic—modeling—sources of uncertainty, including the inherent variability in the impact distribution due to wind and lift effects for irregular debris following failure; probability of failure; casualty area for people in shelters that are impacted by debris; size of the debris impact probability distribution; yield from exploding propellant and propellant tanks; probability of injury from a blast wave for people in buildings or unsheltered; and population density. Uncertainty also exists in the Ec estimate for overflight because of the uncertainty in the time of launch,cargo debris, and different methods to characterize the normal trajectory dispersions based on input data provided by the launch operator.

    A standard public risk analysis for launch or reentry produces a single Ec value, but these state-of-the-art analyses demonstrate that the modeling uncertainties are too large to justify calculating Ec to more than one significant figure.8 In fact, the uncertainty in a vehicle's probability of failure alone is generally large enough to render meaningless any calculated differences involving more than one significant digit, such as a calculated difference of 100 × 10−6 compared to 149 × 10−6 in Ec estimates for a commercial launch.9 Specifically, during SpaceX's third Falcon 9 mission (F9-003), two probability of failure analysis approaches applied by the two major federal ranges for commercial launches, which the FAA deemed equally valid based on the requirements in § 417.224, produced mean probability of failure estimates during Eurasian over-flight that varied by approximately 40 percent. Also, the uncertainty in the Ec estimate scales linearly with the statistical uncertainty associated with any probability of failure analysis method, even when the assumptions of the model are absolutely true. For example, applying the binomial approach in part 417, appendix A, § 417.25(b)(5)(iii), to a new vehicle with a record of no failures in the first two flights produces a reference probability of failure estimate of 0.28. Even if the assumption of Bernoulli trials 10 inherent in the binomial approach is absolutely true, which is doubtful given the evolutionary nature of expendable launch vehicles, particularly during the first several flights, there is about a 20 percent chance that the true probability of failure is at least twice the reference probability of failure estimate. It is impossible to know the true probability of failure for any launch vehicle flight. The FAA believes that the uncertainty in the probability of failure alone always renders meaningless any more than one significant digit in any commercial launch or re-entry Ec estimate.

    8 In fact, an uncertainty analysis produces a set of point estimates, each of which is an equally valid result, to quantify the uncertainty in the Ec estimate. ACTA itself developed a tool that computes the uncertainty in the point estimate of Ec by using multiple input data sets within the range of feasibility given the uncertainty associated with the input data, together with a multiple sets of factors applied to each sub-model to account for the estimated biases and uncertainties in the applicable sub-models.

    9 Of course, the probability of failure uncertainty is very large for relatively new vehicles, which are most likely to have risk estimates near the 1 × 10−4 Ec limit. However, even vehicles with extensive flight history, such as the Delta II, have probability of failure estimates that vary by a factor of two or more based on the analysis approaches applied by the two major federal ranges where commercial launches most often occur. For example, the Delta II demonstrated nine failures in 227 launches in advance of the GRAIL mission. Valid probability of failure analysis methods produced mean estimates of probability of failure for the GRAIL launch between less than 2% to more than 4%, depending on whether and how reliability growth was accounted for.

    10 All expendable launch vehicle failure probability analysis methods used by Federal ranges today assume that launches may be treated as Bernoulli trials: That the vehicle has a constant “true probability” of failure for each and every launch, and that the outcome of each launch is statistically independent of all others. A toss of an evenly weighted coin is a classic example of a Bernoulli trial. Of course, launches are not exactly Bernoulli trials because no two launches are precisely the same. For example, the vehicle may be modified or improved as needed during a sequence of launches, particularly if it has failed on previous launches, and there are natural variations due to environmental conditions during the vehicle manufacturing, processing, and launch.

    ACTA provided three alternatives to the FAA's July 2014 proposal. These alternatives included (1) using “the approach specified in RCC 321-10” in which increasing degrees of analysis and mitigation are required as the risk increases above 30 × 10−6 and again at 100 × 10−6; (2) “[e]xpress[ing] the limit that log10(EC) is less than −4.0 (to two significant figures”; and (3) “[a]pply[ing] a limit of 9 × 10−5 rather than 1 × 10−4 which results in an effective limit of 95 × 10−6.”

    The FAA appreciates the potential value in using the RCC 321-10 approach, in which increasing degrees of analysis and mitigation are required as the risk increases. Such a dramatic change, however, is beyond the scope of this rulemaking. The FAA disagrees with ACTA's recommendations to “[e]xpress the limit that log10(EC) is less than −4.0 (to two significant figures” or “[a]pply[ing] a limit of 9 × 10−5 rather than 1 × 10−4 which results in an effective limit of 95 × 10−6” because either of those approaches would still imply more significant digits in the Ec estimate than justified based on the Ec uncertainty analyses summarized above.

    3. Establishing an Acceptable Risk Limit of 1 × 10−4

    Under the 2014 NPRM, §§ 417.107(b)(1), 431.35(b)(1)(i), and 435.35(b) would establish an acceptable collective risk limit of 1 × 10−4. Two commenters, Lockheed Martin and SpaceX, supported the proposal without additional significant comment. SpaceX noted that the proposal would align the FAA's risk limit with the standards set by other organizations within the U.S. Government.

    Orbital Sciences supported the proposal but also recommended that the FAA “[e]xamine historical data for all U.S. launches and determine the highest level of collective risk realized by the public [to] propose a more realistic . . . collective risk [number] based on this successful precedent.” Similarly, Blue Origin recommended that the collective risk number be revised higher than proposed, to 1 × 10−3. Blue Origin noted that Federal ranges have, in the past, waived risks associated with non-commercial reentry to as high as 1 × 10−3, and stated, “[t]he commercial spaceflight industry should be held to the standard that the nation's civil and military programs are held to in practice.”11 Blue Origin suggested that reducing the need for waivers would increase transparency and “more closely reflect FAA's regulatory practice, rather than relying on a waiver process such as practiced by NASA and” the U.S. Air Force. Blue Origin further stated that, if the FAA adopts “a risk level that differs from [the FAA's] actual practice, the commercial spaceflight industry will be left not knowing what the real, actual risk level will be in practice,” suggesting that reducing the agency's reliance on waivers would provide an important measure of stability and predictability to the commercial space industry.

    11 Emphasis in original.

    The FAA disagrees with Orbital Sciences' and Blue Origin's recommendations to increase the Ec limit beyond 1 × 10−4. The United States has achieved a flawless public safety record for orbital launch and re-entry missions in part because of a comprehensive and interdependent set of public safety requirements developed and implemented by numerous, cooperating entities within the U.S. government. Three U.S. government entities, the U.S. Air Force, NASA, and the FAA, have oversight of the safety of launches. Both the U.S. Air Force and NASA, working alone and collaborating through organizations such as the RCC and the Common Standards Working Group, have examined the available data and determined that 100 × 10−6, also expressed as 1 × 10−4, is an appropriate standard for acceptable risk.12 There are an insufficient number of casualty-free launches and reentries with Ec greater than 1 × 10−4 to justify departing from the standard adopted by the U.S. Air Force and NASA. In the few cases where waivers were granted by the FAA, prior to and including 2014, the respective Ec was always less than the risk levels previously approved for government launches. Hence, any precedent for granting waivers for prior non-commercial reentries is not sufficient justification for implementing a more lenient risk limit, especially in light of the increased scrutiny given to each waiver applicant.

    12 See Range Commanders Council Risk Committee of the Range Safety Group, Common Risk Criteria for National Test Ranges, RCC 321-10, White Sands Missile Range, New Mexico, 2010.

    Moreover, a fundamental tenent of risk management, both as applied to the regulation and general safety management of various industries, is to set acceptability criteria for collective risk that are below the level that may be acceptable in unusual circumstances or on a short term basis. For aviation risk management, the FAA has identified risk-informed Continued Airworthiness Assessment Methodologies (CAAM) that include short term acceptable risks that are orders of magnitude greater than long term acceptable risk levels.13 Thus, AC 39-8 is another example of the FAA adopting a risk management approach where basic acceptability criteria are more stringent than may be acceptable in unusual circumstances or on a short term basis. Note that the FAA's use of quantitative risk analysis results is consistent with the risk-informed approach to regulatory decision-making adopted by the Nuclear Regulatory Commission (NRC). In 1999, the NRC wrote that “a `risk-informed' approach to regulatory decision-making represents a philosophy whereby risk insights are considered together with other factors to establish requirements that better focus licensee and regulatory attention on design and operational issues commensurate with their importance to public health and safety.” 14

    13 Federal Aviation Administration, Advisory Circular No. 39-8, Continued Airworthiness Assessments of Powerplants and Auxiliary Power Unit Installations of Transport Category Planes, Washington, DC, September 2003.

    14 U.S. Nuclear Regulatory Commission, Commission Issuance of White Paper on Risk-informed and Performance-based Regulation, Yellow Announcement # 019, Washington, DC, dated March 11, 1999.

    In light of these considerations and all currently available data, the FAA finds that a collective Ec limit of 1 × 10−4 reflects an appropriate consensus safety risk standard for launch and re-entry. Consistent with Executive Orders 13563 and 13610, the FAA plans to periodically review and revise this public risk standard, if warranted, based upon factors such as the quantity of launch and reentry activities, demonstrated reliability and safety record and benefits provided, technological capabilities, and maturity of the industry.

    ACTA and an individual commenter cautioned against justifying any increase to the acceptable risk standards by reference to either a relatively small number of successful launches or the uncertainty of launch risk calculations. The individual commenter recommended that any increase to the acceptable risk limits be premised on a determination that higher numbers still adequately ensure public safety.

    The FAA disagrees with ACTA's and the individual commenter's premise concerning the basis of this final rule. Contrary to their assertion, the FAA is not relying on the historical success of a relatively small number of past launches as a justification for increasing the acceptable risk standard. Rather, the FAA, by statute, is authorized to regulate “only the extent necessary” to protect public health and safety. 51 U.S.C. 50901(a)(7). The U.S. Air Force and NASA, two federal agencies with significant expertise in this area, have both examined the currently available data and concluded that it does not justify an aggregated Ec limit lower than 100 × 10−6. Furthermore, there are published materials that explain the rationale for the collective risk limit adopted both by the U.S. Air Force and NASA.15 16 17 The currently available data does not justify a regulatory restriction on Ec for commercial licensees that is more stringent than the standards adopted both by the U.S. Air Force and NASA.

    15 See Range Commanders Council Risk Committee of the Range Safety Group, Common Risk Criteria for National Test Ranges, RCC 321-10, White Sands Missile Range, New Mexico, 2010.

    16 Wilde P., Public Risk Criteria and Rationale for Commercial Launch and Reentry, 5th IAASS Symposium, Versailles, France, October 2011.

    17 Wilde, P. Public Risk Tolerability Criteria for Space Launch and Reentry, Presented at the 51st Scientific and Technical Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, Vienna, Austria, 18 Feb. 2014.

    D. Clarifying Hazard Areas for Ships and Aircraft

    Prior to this final rule, § 417.107(b)(3) and (4) required the launch operator of an ELV to implement and establish ship and aircraft hazard areas providing an equivalent level of safety to that provided by the ship and aircraft hazard areas implemented for launch from a Federal launch range. 71 FR 50508. The FAA proposed to amend § 417.107(b)(3) and (4) to clarify the requirements for hazard areas for ships and aircraft, respectively, by removing references to an “equivalent level of safety to that provided by [ship or aircraft] hazard areas implemented for launch from a Federal range” and replacing them with a numeric limit on the probability of impact with debris capable of causing a casualty.

    Orbital Sciences recommended that no change be made to the hazard area regulations. Orbital Sciences stated that the proposal to implement a specific risk standard, even if it is quantitatively the same as the Federal launch ranges' standard, creates the possibility that the Federal launch ranges will change their standard and the FAA's regulation will become obsolete. The FAA disagrees with Orbital Sciences' recommendation. Regardless of whether the Federal launch ranges change their risk criteria for ships and aircraft, the Administrative Procedure Act, with limited exceptions, prohibits the FAA from changing its regulatory requirements without notice and comment. 5 U.S.C. 553. Therefore, even if the FAA maintained these provisions using a purportedly outdated standard, a change to the Federal launch range requirements would not automatically flow through to FAA regulations, and licensed launch operators would have to abide by the Federal launch range standard in effect when the FAA first promulgated the regulation. Accordingly, if the Federal launch ranges change their standard, the FAA will have to initiate its own rulemaking in order to harmonize its water-borne vessel and aircraft hazard areas limits with the Federal launch ranges'. To prevent this confusion, the FAA is revising § 417.107(b)(3) and (4) to identify the numeric requirements.

    An individual commenter questioned the proposed clarifications regarding the ship and aircraft hazard areas. Specifically, the individual commenter pointed out that the proposal, which is based on the probability of impact with debris capable of causing a casualty, could be either excessively conservative or non-conservative depending on the details of the analysis, such as the threshold characteristics of the debris and the size of the area considered vulnerable to such debris impact. ACTA provided similar comments, stating the regulations (1) do “not define the area for computing impact” with a vessel or aircraft, and (2) do not clarify that operators must account for “the near-field explosive effects of propellants impacting in the vicinity of [a] ship.”

    The individual commenter's recommendation to substantively amend the hazard area risk standards is outside the scope of this rulemaking. As described in the 2014 NPRM, this final rule does not substantively change the hazard area risk standards. 79 FR 42241, 42249-50. The hazard area revisions only clarify the FAA's standards by using a specific number, rather than an unquantified reference to Federal launch range standards. The FAA therefore rejects the commenter's recommendations to make substantive changes to the rule.

    ACTA's comments also included numerous additional observations related to the hazard area regulations. ACTA stated that the regulations do not “specify how (or even if) hazard areas are to be used to implement mitigation” to protect specific individuals or the general public. This observation, however, ignores other sections of the regulations that do address how hazard areas are to be used to implement mitigation techniques, such as issuing public warnings and performing surveillance. To meet the public risk criteria of § 417.111(b), § 417.223 requires “a flight hazard area analysis that identifies any regions of land, sea, or air that must be surveyed, publicized, controlled, or evacuated in order to control the risk to the public from debris impact hazards.” Furthermore, § 417.111(j) requires a launch operator to “implement a plan that defines the process for ensuring that any unauthorized persons, ships, trains, aircraft or other vehicles are not within any hazard areas identified by the flight safety analysis or the ground safety analysis,” and explicitly includes hazard areas identified under §§ 417.107 and 417.223.

    ACTA also criticized the proposal for failing to justify “why the acceptable risk limit to the general public on ships is higher than for people on land.” The premise of this comment is not correct. Specifically, § 417.107(b)(2) provides that a launch operator may initiate flight only if the risk to any individual member of the public does not exceed a 1 × 10−6 probability of casualty, regardless of the location of that individual member of the public. Thus, the FAA's risk criteria provide equal protection to each individual member of the public, on ships or on land. Moreover, to the extent ACTA is criticizing the water-borne vessel hazard areas requirement, the FAA is not changing the water-borne vessel hazard area requirement; it is merely clarifying the requirement by removing a reference to where the requirement can be found and replacing it with the actual requirement.

    ACTA also was concerned that the criteria for ship and aircraft do not explicitly exclude “mission-support vessels and aircraft,” creating an inconsistency with the remainder of the regulation. Although ACTA is correct that the criteria do not apply to vessels and aircraft that support the launch, the FAA's launch and reentry regulations address only public safety, which § 401.5 defines as “for a particular licensed launch, the safety of people and property that are not involved in supporting the launch . . .” It, therefore, is unnecessary to explicitly exclude “mission-support vessels and aircraft” from the public safety criteria for launch.

    Finally, ACTA recommended that § 417.107(b)(3) and (4) state that “a launch operator must make reasonable effort to ensure that the probability of casualty to members of the public on water borne vessels or in aircraft does not exceed the limit specified in [§ 417.107(b)(2)].” ACTA stated that this revision would establish a “specific risk value” while at the same time giving operators flexibility as to “the method of protection” or risk mitigation. The regulations already allow a launch operator to employ different methods of mitigating risk so the FAA will not adopt ACTA's proposal.

    E. Including Toxic Release in the Reentry Risk Analysis

    The FAA proposed to include the risks associated with toxic release in the Ec limitations for the reentry of an RLV or other reentry vehicle. Blue Origin opposed the proposal to include toxic release in the reentry risk calculation. Blue Origin, quoting from the regulatory evaluation in the 2014 NPRM, stated that “toxic release risks for reentry vehicles are `expected to remain a minor factor in Ec calculations,' because most of the propellant will have been used during the mission . . .” The FAA is revising its position, and disagrees with Blue Origin's assertion, because the FAA is aware of plans that involve the return to land with a significant hypergolic, highly toxic, propellant load carried until touchdown. The FAA therefore continues to include toxic release in the reentry risk analysis at this time.

    F. Miscellaneous

    Sierra Nevada recommended that the FAA define orbital insertion to help “reduce misinterpretation of the regulations” because “[s]etting a specific boundary would allow commercial space companies to clearly understand the boundaries for expected casualty limits.”

    The FAA agrees with Sierra Nevada's comments that § 417.107(b)(1) can be amended to prevent potential misinterpretation.18 The FAA takes this opportunity to clarify that risk associated with planned impacts after orbital insertion should not be included in an Ec analysis governed by § 417.107. Accordingly, to minimize confusion, the FAA is removing the phrase “including each planned impact” from § 417.107(b)(1) to state only that the operator account for risk through orbital insertion. The risk assessment conducted under § 417.107(b)(1) must only include impacts through—meaning up to and including—the moment of orbital insertion. More specifically, Ec encompasses risks associated with planned events occurring from launch through the moment of orbital insertion, but not the risks associated with on-orbit activities. For example, the § 417.107 risk analysis must include the planned impact of a first stage jettisoned prior to orbital insertion regardless of whether the actual impact of the first stage occurs before or after orbital insertion.19 This is true whether the first stage makes a controlled or uncontrolled impact. In contrast, the § 417.107 risk analysis does not require accounting for the planned impact of an upper stage jettisoned after the vehicle has achieved orbital insertion.

    18 The FAA notes that its 2014 waiver for the Orion Exploration Test Flight 1, which authorized an Ec of up to 218 × 10−6, improperly accounted for public risks outside the scope of § 417.107(b)(1) by considering public risk associated with planned impacts after orbital insertion in the Ec calculation. Notice of Waiver, Mar. 10, 2014 (79 FR 13375); Notice of Amended Waiver, Dec. 5, 2014, (79 FR 72240).

    19 For example, the return to Earth and successful landing of the first stage of SpaceX's Falcon 9 launch vehicle was considered part of launch and was accounted for in the calculation of launch risk.

    An individual commenter observed that the 2014 NPRM proposed to revise the Ec requirements in parts 417, 431, and 435, but neglected to revise the corresponding Ec requirements in part 420, License to Operate a Launch Site. This was an oversight. This final rule revises §§ 420.19(a)(1); 420.23(a)(2), (b)(3), and (c)(1)(ii); 420.25(b); 431.43(d)(2); paragraph (d) of Appendix C to part 420; and paragraphs (a)(5), (e)(2), and (e)(3) of Appendix D to part 420 to account for the Ec revisions made throughout chapter III of title 14 of the Code of Federal Regulations.

    Previously, § 417.107(b)(2) referenced Ec when describing the risk limit to any individual member of the public. This reference may cause confusion because Ec is a measure of collective risk to public safety, not individual risk. To prevent any potential confusion, this final rule makes a non-substantive change to § 417.107(b)(2) to remove the reference to Ec.

    The FAA is streamlining the terminology in the collective risk requirements. Specifically, we are removing the colloquial term “average” from “expected average,” which is redundant and unnecessary. In statistics there are three measures of central tendency or “averages”: The median, mode, and mean. The expected value is synonymous with the mean value specifically, thus the term “expected” is technically precise and sufficient.

    G. Differences Between the 2014 NPRM and the Final Rule

    As described above, there are two differences between the FAA's proposal in the 2014 NPRM and this final rule as adopted. These changes include: (1) removing the phrase “including each planned impact” from § 417.107(b)(1) and (2) revising part 420 to account for revisions to the Ec standard in parts 417, 431, and 435.

    IV. Regulatory Notices and Analyses A. Regulatory Evaluation

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

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

    Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. Based on the facts and methodology explained for the NPRM, the FAA provided cost-savings estimates for the proposed rule and requested comments. The FAA did not receive any comments on the estimates and thus the FAA follows the same approach herein. These analyses are summarized below.

    Parties Potentially Affected by This Rulemaking • Satellite owners • License applicants for launches and reentries • Commercial space transportation suppliers • The Federal Aviation Administration and the general public Principal Assumptions and Sources of Information Benefit-Cost Analysis for the collective risk limits during launches and reentries (GRA study 2013 20 by GRA, Incorporated)

    20 GRA study can be found in the docket.

    • FAA Office of Commercial Space Transportation forecast of suborbital launches using subject experts' judgments • All monetary values are expressed in 2014 dollars • Projected impacts for a 10-year period from 2016 to 2025 Cost-Benefit Analysis

    The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR parts 417, 431, and 435 by changing the collective risk limits for launches and reentries and clarifying the risk limit used to establish hazard areas for ships and aircraft. The NPRM was published in the Federal Register on July 21, 2014 (79 FR 42241).

    Prior to this final rule, the FAA prohibited the expected casualty (Ec) for each physically distinct source of risk (impacting inert and explosive debris, toxic release and far field blast overpressure) from exceeding 30 × 10−6 or an expected average number of 0.00003 casualties per launch. The aggregate Ec equals the sum of these risks, i.e., (30 × 10−6) + (30 × 10−6) + (30 × 10−6), for a total of 90 × 10−6. However, launches were not subject only to this single aggregate Ec limit. If there was a reentry using a reentry vehicle, an additional regulatory provision became applicable that prohibited the combined Ec of the launch and reentry from exceeding 30 × 10−6 for vehicle or vehicle debris impact hazards.21

    21 This limit is specified in 14 CFR 431.35, which applies only to reusable launch vehicles. However, 14 CFR 435.35 incorporates and applies 14 CFR 431.35 to all reentry vehicles.

    Under this final rule, the FAA separates its expected casualties (Ec) for launches and reentries. The final rule adopts an aggregate Ec requirement for a launch not to exceed 1 × 10−4 posed by the following hazards: (1) Impacting inert and explosive debris, (2) toxic release, and (3) far field blast overpressure. The FAA also finalizes a separate aggregate Ec requirement for a reentry not to exceed 1 × 10−4 posed by the hazards of debris and toxic release.

    An Ec value of 1 ×x 10−4 mathematically equals 100 × 10−6, which is the Ec value currently used on federal ranges for civil and military launch and reentry missions. However, because the aggregate Ec limit uses only one significant digit in the format of 1 × 10−4, this final rule, in practice, allows a commercial launch or reentry with an aggregate Ec limit up to 149 × 10−6 to proceed without requiring the applicant to seek an FAA waiver.

    Based on analysis of the historical data, the FAA found the criteria are supported by the commercial mission experiences and post-mission safety data available since 1989. The FAA's launch data indicate during this time there were 45 suborbital launches and 193 orbital launches, for a total of 238 launches.22 At least four of these launches used an Ec that was allowed to go above the existing 30 × 10−6 Ec limits. None of those four launches resulted in any casualties or other adverse impacts on the public safety.

    22 AST/FAA launch data as of Feb 1, 2013, excluding 21 failed launches. This data can be found at http://www.faa.gov/about/office_org/headquarters_offices/ast/launch_license. See also Appendix A in GRA study, which can be found on the docket for this rule.

    As discussed in the preamble above, the FAA believes managing the precision of rounding digits below and above the Ec limit (i.e., 1 × 10−4) is unrealistic and unnecessary for administering launch or reentry licenses. By using only one significant digit, the Ec limit for launches become less restrictive than the three existing launch Ec limits combined (i.e., 90 × 10−6). The regulatory-compliance difference between 90 × 10−6 and 149 × 10−6 falls under the accepted FAA commercial launch safety margin because the level of imprecision associated with Ec calculations means that there is no substantive difference between these two Ec figures. However, changing the regulations to use only one significant digit will improve efficiency to license applicants in the launch approval process. In addition, using a single Ec limit that applies to an aggregate risk in place of three separate hazard-specific Ec limitations will further increase efficiency. As a result, the FAA believes the final rule maintains a level of safety for commercial launches commensurate with the current level of safety associated with civil and military counterparts, but will be cost-relieving by eliminating some waiver processes necessary prior to this rule.

    The criteria also separately address the public risk limits of toxic release and inert and explosive debris risks for reentry operations by establishing public safety requirements similar to current practice. Based on past practices of administering reentry licenses, the FAA found it was unrealistic and unnecessary to administer reentry licenses with a strict Ec limit of 30 × 10−6 for the combination of launch and reentry debris hazards. Aggregating Ec limits of toxic release and inert and explosive debris risks, the Ec limit for reentry will be commensurate with the safety requirements applied to civil and military reentries, and more conservative than past federal ranges' practices that gave waivers to allow non-commercial reentry missions to proceed with Ec risks on the order of 1 × 10−3.

    The final rule revises reentry Ec limits for toxic release and inert and explosive debris risks to be close to the current FAA reentry licensing practice, on which we assess the current economic baseline of the revised Ec limits. The FAA expects that the nominal increase in the debris Ec limit on reentry in this rule will impose no or minimal societal costs. This is because the FAA has historically issued a number of waivers to commercial launches that allowed those launches to exceed the regulatory Ec limits as long as those launches did not exceed the 100 × 10−6 Ec limits imposed by the federal ranges. The FAA has issued waivers to commercial reentries that allowed the Ec for those reentries to be considered separately from the Ec for launch. While the FAA, as part of its waiver process, has not yet had to consider whether a reentry operation should be issued a waiver to exceed the 30 × 10−6 Ec limit on reentry, the FAA expects that its launch waiver analysis will apply equally to future reentry operations. Consequently, the FAA anticipates that many of the future reentry operations would be eligible for an FAA waiver in the absence of this rule. Therefore, this rule will eliminate extra expenses of processing such waivers.

    The FAA finalizes the NPRM's proposal to include the risks associated with toxic release in the Ec limitations for the reentry of a reentry vehicle. By including toxic release risks during a reentry operation, the final rule provides an incremental margin of safety to the public that did not exist prior to this final rule.

    The propellant load for a reentry vehicle using parachutes to land is generally minimal because most of the propellant will have been used before landing. The Ec risk for reentry vehicles landing in the ocean will likely be below the collective Ec limit. Toxic release risks for reentry will remain a minor factor in Ec calculations until a licensee plans to land a reentry vehicle on the ground, under power, using highly toxic hypergolic propellants carried all the way to touchdown. Currently, toxic release risk during launch generally exceeds an Ec of 1 × 10−4 when a reentry vehicle with hypergolic propellants on board has to separate from its launch vehicle during an abort-to-orbit, forcing an unplanned landing on land. Hence, a reentry vehicle planning to land on the ground in such an abort-to-orbit scenario will not get a government launch license under current U.S. Air Force regulations. The FAA has not received applications for reentry vehicles that are capable of landing on land without substantial risks of releasing hypergolic propellants, although the FAA learned through conversations with the U.S. Air Force that the industry is in the early planning stage of developing this type of vehicle. However, if a reentry risk analysis found the reentry vehicle imposed a substantial toxic release risk to a launch site or outside of the hazard area, the reentry operator is required under proposed regulation to choose an alternative landing site to ensure any potential toxic release does not exceed the collective Ec of 1 × 10−4. Because operators were required to do a reentry risk analysis prior to this final rule, there will be no additional compliance costs resulting from this final rule. The necessary reentry risk analysis required for toxics only by this final rule can be done within 3 weeks of time by 1.5 analysts being paid at $35 per hour for the total of $6,300 per study. The FAA considers this analysis cost to be minimal.

    The changes in the risk limits apply to all three hazards combined rather than to each individual hazard. This final rule permits launch or reentry operations without requiring operators to seek FAA waivers as long as the aggregated risks will not exceed 0.0001 expected casualties per launch or reentry mission (i.e., 1 × 10−4). Both the commercial space transportation industry and the government will receive savings attributable to less paperwork by avoiding some waiver-application process expenses.

    Based on historical records of requests and FAA-issued waivers from the previous Ec limits, the FAA estimates that launch operators would seek additional 38 waivers from 2016 to 2025 in the absence of this rule.23 After the promulgation of this final rule, the FAA expects these 38 waivers will not be needed. Thus, this final rule will result in savings for both the industry and the FAA, as the industry does not have to expend resources to request waivers and the FAA will not have to expend resources to evaluate waiver requests.

    23 GRA Study 2013, Table 5-7.

    The methodology of this final regulatory impact analysis (RIA) mirrors the RIA associated with the NPRM. The cost of a formal waiver request to industry ranges from $137,097 for 1,717 hours to $195,094 for 2,443 hours of aerospace engineering time to prepare and submit the necessary documentation to the FAA for approval.24 Multiplying the forecasted 38 waivers for the 10-year period by the lower and upper bound costs yields cost savings ranging from $5.2 million to $7.4 million. The estimates for the FAA's cost savings are based on the costs of FAA personnel time ranging from $81,231 for 1,040 hours to $243,693 for 3,120 hours 25 to process each waiver request. This range is related to the characteristics of the individual launch or reentry request. Multiplied by the forecasted 38 waivers granted, the total estimated savings of FAA personnel time to review requests and issue waivers range from $3.1 million to $9.3 million. The resulting savings for both the industry and the FAA with an estimated mid-point will be approximately $12.5 million ($8.8 million present value at a 7% discount rate). The lower and the higher estimates are approximately $8.3 million and $16.7 million ($5.8 million and $11.7 million present value at a 7% discount rate), respectively.

    24 Basis is provided in GRA Study 2013, Appendix C, Table C-3.

    25 GRA Study 2013, Appendix C, Tables C-1 and C-2 for the basis of this value.

    The final rule may also result in cost-saving by reducing launch delays and mission scrubs. The FAA currently does not have sufficient data to quantify these savings, but believes the possible reduction of launch delays and mission scrubs may increase the overall capacity of the U.S. space transportation industry. Accordingly, the FAA sought comments on cost-savings in the NPRM and did not receive comments on the estimated benefits of reduced launch delays and mission scrubs. Therefore, the FAA maintains the same benefit determination.

    In summary, the final rule maintains safety levels for commercial space transportation commensurate with the current requirements applied to launches and reentries. In addition, the final rule will result in net benefits for both industry and government. The net benefit will be achieved by avoiding costs pertaining to applying and granting waivers with Ec limits between 90 × 10−6 and 149 × 10−6. Further, related industries may also benefit by averting unnecessary mission delays and scrubs.

    B. Regulatory Flexibility Determination

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

    Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required.

    The FAA expects many small entities will benefit from this final rule because the regulatory revisions to the collective Ec limits are cost-relieving. The FAA solicited comments in the NPRM and did not receive comments with regard to this certification. Therefore, the FAA Administrator certifies that this rule does not have a significant economic impact on a substantial number of small entities.

    C. International Trade Impact Assessment

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

    D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a final rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

    E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

    F. International Compatibility and Cooperation

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

    V. Executive Order Determinations A. Executive Order 13132, Federalism

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

    B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

    VI. How To Obtain Additional Information A. Rulemaking Documents

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

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

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

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

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

    B. Comments Submitted to the Docket

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

    C. Small Business Regulatory Enforcement Fairness Act

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

    List of Subjects 14 CFR Part 417

    Launch and reentry safety, Aviation safety, Reporting and recordkeeping requirements, Rockets, Space transportation and exploration.

    14 CFR Part 420

    Environmental protection, Launch safety, Reporting and recordkeeping requirements, Space transportation and exploration.

    14 CFR Parts 431 and 435

    Launch and reentry safety, Aviation safety, Reporting and recordkeeping requirements, Rockets, Space transportation and exploration.

    The Amendment

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

    PART 417—LAUNCH SAFETY 1. The authority citation for part 417 continues to read as follows: Authority:

    51 U.S.C. 50901-50923.

    2. In § 417.107, revise paragraphs (b)(1) through (4) to read as follows:
    § 417.107 Flight safety.

    (b) * * *

    (1) A launch operator may initiate the flight of a launch vehicle only if the total risk associated with the launch to all members of the public, excluding persons in water-borne vessels and aircraft, does not exceed an expected number of 1 × 10−4 casualties. The total risk consists of risk posed by impacting inert and explosive debris, toxic release, and far field blast overpressure. The FAA will determine whether to approve public risk due to any other hazard associated with the proposed flight of a launch vehicle on a case-by-case basis. The Ec criterion applies to each launch from lift-off through orbital insertion for an orbital launch, and through final impact for a suborbital launch.

    (2) A launch operator may initiate flight only if the risk to any individual member of the public does not exceed a casualty expectation of 1 × 10−6 per launch for each hazard.

    (3) A launch operator must establish any water borne vessel hazard areas necessary to ensure the probability of impact (Pi) with debris capable of causing a casualty for water borne vessels does not exceed 1 × 10−5.

    (4) A launch operator must establish any aircraft hazard areas necessary to ensure the probability of impact (Pi) with debris capable of causing a casualty for aircraft does not exceed 1 × 10−6.

    PART 420—LICENSE TO OPERATE A LAUNCH SITE 3. The authority citation for part 420 continues to read as follows: Authority:

    51 U.S.C. 50901-50923.

    4. In § 420.19, revise paragraph (a)(1) to read as follows:
    § 420.19 Launch site location review—general.

    (a) * * *

    (1) A safe launch must possess a risk level estimated, in accordance with the requirements of this part, not to exceed an expected number of 1 × 10−4 casualties (Ec) to the collective members of the public exposed to hazards from the flight.

    5. In § 420.23, revise paragraphs (a)(2), (b)(3), and (c)(1)(ii) to read as follows:
    § 420.23 Launch site location review—flight corridor.

    (a) * * *

    (2) Includes an overflight exclusion zone where the public risk criteria of 1 × 10−4 would be exceeded if one person were present in the open; and

    (b) * * *

    (3) Includes an overflight exclusion zone where the public risk criteria of 1 × 10−4 would be exceeded if one person were present in the open; and

    (c) * * *

    (1) * * *

    (ii) An overflight exclusion zone where the public risk criteria of 1 × 10−4 would be exceeded if one person were present in the open.

    6. In § 420.25, revise paragraph (b) to read as follows:
    § 420.25 Launch site location review—risk analysis.

    (b) For licensed launches, the FAA will not approve the location of the proposed launch point if the estimated expected casualty exceeds 1 × 10−4.

    7. In Appendix C to part 420, revise paragraphs (a)(2) and (d)(1) and (2) to read as follows: Appendix C to Part 420—Risk Analysis

    (a) * * *

    (2) An applicant shall perform a risk analysis when a populated area is located within a flight corridor defined by either appendix A or appendix B. If the estimated expected casualty exceeds 1 × 10−4, an applicant may either modify its proposal, or if the flight corridor used was generated by the appendix A method, use the appendix B method to narrow the flight corridor and then redo the overflight risk analysis pursuant to this appendix. If the estimated expected casualty still exceeds 1 × 10−4, the FAA will not approve the location of the proposed launch point.

    (d) * * *

    (1) If the estimated expected casualty does not exceed 1 × 10−4, the FAA will approve the launch site location.

    (2) If the estimated expected casualty exceeds 1 × 10−4, then an applicant may either modify its proposal, or, if the flight corridor used was generated by the appendix A method, use the appendix B method to narrow the flight corridor and then perform another appendix C risk analysis.

    8. In Appendix D to part 420, revise paragraphs (a)(5) and (e)(2) and (3) to read as follows: Appendix D to Part 420—Impact Dispersion Areas and Casualty Expectancy Estimate for an Unguided Suborbital Launch Vehicle

    (a) * * *

    (5) If the estimated Ec is less than or equal to 1 × 10−4, the FAA will approve the launch point for unguided suborbital launch vehicles. If the estimated Ec exceeds 1 × 10−4, the proposed launch point will fail the launch site location review.

    (e) * * *

    (2) If the estimated expected casualty does not exceed 1 × 10−4, the FAA will approve the launch point.

    (3) If the estimated expected casualty exceeds 1 × 10−4, then an applicant may modify its proposal and then repeat the impact risk analysis in accordance with this appendix D. If no set of impact dispersion areas exist which satisfy the FAA's risk threshold, the applicant's proposed launch site will fail the launch site location review.

    PART 431—LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV) 9. The authority citation for part 431 continues to read as follows: Authority:

    51 U.S.C. 50901-50923.

    10. In § 431.35, revise paragraph (b)(1) to read as follows:
    § 431.35 Acceptable reusable launch vehicle risk.

    (b) * * *

    (1) To obtain safety approval, an applicant must demonstrate the following for public risk:

    (i) The risk to the collective members of the public from the proposed launch meets the public risk criteria of § 417.107(b)(1) of this chapter;

    (ii) The risk level to the collective members of the public, excluding persons in water-borne vessels and aircraft, from each proposed reentry does not exceed an expected number of 1 × 10−4 casualties from impacting inert and explosive debris and toxic release associated with the reentry; and

    (iii) The risk level to an individual does not exceed 1 × 10−6 probability of casualty per mission.

    11. In § 431.43, revise paragraph (d)(2) to read as follows:

    (d) * * *

    (2) The expected number of casualties to members of the public does not exceed 1 × 10−4 given a probability of vehicle failure equal to 1 (pf=1) at any time the IIP is over a populated area;

    PART 435— REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH VEHICLE (RLV) 12. The authority citation for part 435 continues to read as follows: Authority:

    51 U.S.C. 50901-50923.

    13. Revise § 435.35 to read as follows:
    § 435.35 Acceptable reusable launch vehicle risk.

    To obtain safety approval for reentry, an applicant must demonstrate the following for public risk:

    (a) The risk to the collective members of the public from the proposed launch meets the public risk criteria of § 417.107(b)(1) of this chapter;

    (b) The risk level to the collective members of the public, excluding persons in water-borne vessels and aircraft, from each proposed reentry does not exceed an expected number of 1 × 10−4 casualties from impacting inert and explosive debris and toxic release associated with the reentry; and

    (c) The risk level to an individual does not exceed 1 × 10−6 probability of casualty per mission.

    Issued under authority provided by 49 U.S.C. 106(f), and 51 U.S.C. 50903, 50905 in Washington, DC, on July 11, 2016. Michael P. Huerta, Administrator.
    [FR Doc. 2016-17083 Filed 7-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0650] RIN 1625-AA00 Safety Zone; Houma Navigation Canal Miles 23 to 23.5, Dulac, LA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all navigable waters surface to bottom, of the Houma Navigation Canal from mile marker 23 to 23.5. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by replacement work of the Falgout Canal Pontoon Bridge. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Morgan City or a designated representative.

    DATES:

    This rule is effective without actual notice from 7:00 a.m. until 7:00 p.m. daily from July 20, 2016 through July 27, 2016. For the purposes of enforcement, actual notice will be used from 7:00 a.m. until 7:00 p.m. daily from July 7, 2016 through July 20, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0650 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, contact MSTC Justin Helton, Marine Safety Unit Houma, U.S. Coast Guard; telephone 985-850-6457, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code MM Mile Marker II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive notice of the bridge repairs until June 21, 2016. Completing the NPRM process would delay the immediate action needed to protect the public from hazards associated with the Falgout Canal Pontoon Bridge replacement. It is impracticable to publish an NPRM because we must establish this safety zone by July 7, 2016.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Providing 30 days notice for this occurrence would unnecessarily delay the effective date and would be impracticable based on the limited time frame, as well as be contrary to public interest because immediate action is needed to respond to the potential safety hazards associated with the replacement of the Falgout Canal Pontoon Bridge.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Morgan City (COTP) has determined that potential hazards associated with the Falgout Canal Pontoon Bridge replacement between 7:00 a.m. and 7:00 p.m. from July 7 through July 27, 2016 will be a safety concern for anyone within the area extending from MM 23 to 23.5 of the Houma Navigation Canal. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the Falgout Canal Pontoon Bridge is being replaced.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 7:00 a.m. until 7:00 p.m. from July 7 through July 27, 2016. The safety zone will cover all navigable waters, surface to bottom, of the Houma Navigation Canal from MM 23 to 23.5. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the Falgout Canal Pontoon Bridge is being repaired. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget. This regulatory action determination is based on the size, location, duration, and specific times of enforcement for the temporary safety zone. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the Falgout Canal Pontoon Bridge is being replaced. This temporary safety zone will be enforced during specific times during daylight hours for bridge replacement operations only, and limits access to a small area on the waterway covering one-half mile. Vessels will be able to request passage through area from the COTP. Additionally, there will be a break in operation allowing any build up of traffic to pass on a once daily basis.

    No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

    While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

    C. Collection of Information

    This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

    Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone, during daylight hours, lasting less than 13 hours per day for 21 days that will prohibit entry into or transit within MM 23 to 23.5 of the Houma Navigation Canal. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T08-0650 to read as follows:
    § 165.T08-0650 Safety zone; Houma Navigation Canal between mile 23 to 23.5, Dulac, LA.

    (a) Location. The following area is a temporary safety zone: All waters of the Houma Navigation Canal, surface to bottom, between mile 23 and mile 23.5, Dulac, LA.

    (b) Enforcement period. This safety zone will be enforced from 7:00 a.m. until 7:00 p.m. daily from July 7 through July 27, 2016.

    (c) Regulations. (1) In accordance with the general regulations in § 165.23, entry into this zone is prohibited unless specifically authorized by the Captain of the Port Morgan City (COTP) or designated personnel. Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 13 and 16 or phone at 504-343-7928.

    (2) Persons and vessels permitted to deviate from this safety zone regulation and enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

    (d) Informational broadcasts. The COTP or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the temporary safety zone as well as any changes in the planned schedule.

    Dated: July 1, 2016. B.E. Welborn, Captain, U.S. Coast Guard, Captain of the Port Morgan City.
    [FR Doc. 2016-17035 Filed 7-19-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2015-0854; FRL-9949-00-Region 10] Air Plan Approval; Oregon; Medford Area Carbon Monoxide Second 10-Year Maintenance Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve a second 10-year carbon monoxide (CO) limited maintenance plan (LMP) for the Medford area in Oregon, submitted by the Oregon Department of Environmental Quality (tODEQ) on December 11, 2015, along with a supplementary submittal on December 30, 2015, as a revision to its State Implementation Plan (SIP). In accordance with the requirements of the Clean Air Act (CAA), the EPA is approving this SIP revision because it demonstrates that the Medford area will continue to meet the CO National Ambient Air Quality Standards (NAAQS) for a second 10-year period beyond redesignation, through 2025.

    DATES:

    This rule is effective on September 19, 2016, without further notice, unless the EPA receives adverse comment by August 19, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2015-0854 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    John Chi, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, 1200 6th Avenue, Seattle, WA 98101; telephone number: 206-553-1185; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    Table of Contents I. This Action II. Background III. Evaluation of Oregon's Submittal A. Base Year Emission Inventory B. Demonstration of Maintenance C. Control Measures D. Monitoring Network and Verification of Continued Attainment E. Contingency Plan F. Transportation and General Conformity IV. Final Action V. Statutory and Executive Order Reviews I. This Action

    The EPA is approving the carbon monoxide limited maintenance plan (CO LMP) submitted by the ODEQ, on December 11, 2015, along with a supplementary submittal on December 30, 2015, (the submittal) for the Medford area. A LMP is a means of meeting Clean Air Act (CAA) requirements for formerly designated nonattainment areas that meet certain qualification criteria. This CO LMP is designed to keep the Medford area in attainment with the CO standard for a second 10-year period beyond redesignation, through 2025.

    II. Background

    Under section 107(d)(1)(c) of the CAA, each CO area designated nonattainment prior to enactment of the 1990 Amendments, such as Medford, was designated nonattainment by operation of law upon enactment of the 1990 Amendments. Under section 186(a) of the CAA, each CO area designated nonattainment under section 107(d) was also classified by operation of law as either “moderate” or “serious” depending on the severity of the area's air quality problem. CO areas with design values between 9.1 and 16.4 parts per million (ppm), such as Medford, were classified as moderate. These nonattainment designations and classifications were codified in 40 CFR part 81 on November 6, 1991 (56 FR 56695).

    On July 24, 2002, the EPA approved the ODEQ's request to redesignate the Medford area to attainment of the CO standard (67 FR 48388). In that action, the EPA also approved the maintenance plan required under CAA section 175A(a) to provide for 10 years of maintenance of the CO standard in the Medford area through the year 2015 (67 FR 48388).

    As required by the CAA section 175A(b), the SIP submittal provides a second 10-year plan for maintaining the CO standard in the Medford area until 2025. For the second 10-year maintenance plan, the ODEQ chose the option as described in an EPA October 6, 1995 memorandum from Joseph Paisie, the Group Leader of the Integrated Policy and Strategies Group, titled, “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas” (LMP Option). To qualify for the LMP Option, the CO design value for an area, based on the eight consecutive quarters (two years of data) used to demonstrate attainment, must be at or below 7.65 ppm (85 percent of the CO NAAQS). In addition, the control measures from the first CO maintenance plan must remain in place.

    The EPA has determined that the LMP Option for CO is also available to all states as part of the CAA 175A(b) update to the maintenance plans, regardless of the original nonattainment classification, or lack thereof. Thus, the EPA finds that although the Medford area was designated as a moderate nonattainment area for the CO NAAQS, redesignation to attainment status in conjunction with meeting all requirements of the October 6, 1995, memorandum, allows the ODEQ to be eligible to submit a LMP as the update to its original maintenance plan per section 175A(b) of the CAA.

    III. Evaluation of Oregon's Submittal

    The requirements of the LMP Option and the EPA's evaluation of how each requirement has been met by the ODEQ's submittal is summarized below.

    A. Base Year Emission Inventory

    The LMP must contain an attainment year emissions inventory to identify a level of CO emissions in the area that is sufficiently low enough to attain the CO NAAQS. The submittal contains a summary of the CO emissions inventory for the Medford area for the base year 2008. The emission inventory lists CO emissions by general source category—stationary point sources, stationary area sources, on-road mobile sources and non-road mobile sources. On-road mobile sources emissions for the 2008 base year inventory were estimated with the EPA's Motor Vehicle Emissions Simulator (MOVES) 2010b.1 The methods used to determine the Medford area CO emission inventory are consistent with the EPA's most recent guidance on developing emission inventories.

    1 MOVES2010b was the most current model available at the time that ODEQ was performing its analysis. The EPA released MOVES2014 on October 7, 2014 (79 FR 60343).

    Historically, exceedances of the CO standard in the Medford area have occurred during the winter months, when cooler temperatures contribute to incomplete combustion, and when CO emissions are trapped near the ground by atmospheric inversions. Sources of carbon monoxide include industry, motor vehicles, non-road mobile sources, (e.g., construction equipment, recreational vehicles, lawn and garden equipment, and area sources (e.g., outdoor burning, woodstoves, fireplaces, and wildfires). The three consecutive months—December through February define the typical CO season. As such, season day emissions in addition to annual emissions are included in the inventory. The unit of measure for annual emissions is in tons per year (tpy), while the unit of measure for season day emissions is in pounds per day (lb/day). The county-wide emissions inventory data is spatially allocated to the Medford urban growth boundary (UGB), and to buffers around the UGB, depending on emissions category.

    2008 Emissions Inventory, Main Source Category Subtotals Main source category Annual
  • emissions
  • tons per year
  • CO emissions
  • pounds per winter day
  • Stationary Point Sources 2.367.1 13,159 On-road Mobile Sources 5,730.0 28,731 Non-road Mobile Sources 4,488.2 10,061 Stationary Area Sources 3,333.1 30,399 Total 15,927.4 82,350
    B. Demonstration of Maintenance

    The CO NAAQS is attained when the annual second highest 8-hour average CO concentration for an area does not exceed a concentration of 9.0 ppm. The last monitored violation of the CO NAAQS in the Medford area occurred in 1991, and CO levels have been steadily in decline. The second highest 8-hour CO concentration in 2009 was 2.4 ppm, which is in attainment with the CO NAAQS.

    For areas that meet the criteria to use the LMP Option, the maintenance plan demonstration requirement is considered to be satisfied. The EPA believes that if the area begins the maintenance period at, or below, 85 percent of the level of the CO 8-hour NAAQS (at or below 7.65 ppm), the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and Federal control measures already in place will provide adequate assurance of maintenance over the maintenance period. Thus, there is no requirement to project emissions of air quality over the upcoming maintenance period. The second highest 8-hour CO concentration for Medford based on the two most recent years of data (2008-2009) is 2.4 ppm, which is significantly below the LMP Option requirement of 7.65 ppm.2 Therefore, the EPA finds that the ODEQ has demonstrated that the Medford area qualifies for the LMP Option and has satisfied the maintenance demonstration requirement.

    2 The years 2008-2009 are the most recent two years for available monitoring data because monitoring was discontinued after 2009. The ODEQ has developed an alternate method to verify continued attainment of the CO NAAQS, discussed in the next section.

    C. Control Measures

    The submittal retains the control measures from the first CO maintenance plan (67 FR 48388). The primary control measure has been the emission standards for new motor vehicles under the Federal Motor Vehicle Control Program. Other control measures have been the Major New Source Review Program with Best Available Control Technology (BACT), Motor Vehicle Inspection Program, and a woodsmoke curtailment program. As stated above, the EPA believes that the Medford area will continue to maintain the standard with the continued implementation of these control measures along with meeting the other requirements to qualify for the LMP option.

    D. Monitoring Network and Verification of Continued Attainment

    Monitored CO levels in the Medford area have declined progressively since 1991. CO levels have declined significantly across the nation through motor vehicle emissions controls and fleet turnover to newer, cleaner vehicle models. Once CO levels declined and continued to stay well below the NAAQS, the ODEQ requested to remove the Medford CO monitor in 2009 and the EPA approved the request on October 14, 2010. The ODEQ now has been using an alternate method of verifying continued attainment with the CO standard based on the regional emissions analysis conducted by the Rogue Valley Metropolitan Planning Organization and by using the Portland CO monitor to track trends in general CO levels. Both the ODEQ report and the EPA network approval letter are included in the materials of this docket.

    Under the Medford CO LMP, the ODEQ will verify continued attainment of the CO NAAQS by conducting a review of CO emissions inventory data for the Medford area. The ODEQ will calculate CO emissions every three years as part of the Statewide Emissions Inventory, which is submitted to the EPA for inclusion in the National Emissions Inventory (NEI). The ODEQ commits to review the NEI estimates to identify any increases over the 2008 emission levels (see the base year emissions inventory in this section) and report on them in the annual monitoring network plan for the applicable year. Because on-road mobile sources and stationary area sources are the predominant sources of CO in Medford, these source categories will be the primary focus of the ODEQ's review. The ODEQ will evaluate any increase in CO emissions to confirm it is not due to a change in emission calculation methodology, an exceptional event, or other factor not representative of an actual emissions increase.

    E. Contingency Plan

    Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions necessary to ensure prompt correction of any violations of the standard that may occur. The ODEQ has submitted a revised contingency plan that has three phase of action. The initial contingency plan trigger is a “significant increase” in the emissions inventory, which is defined as ten percent above the 2008 emissions inventory levels. The three phases of actions are as follows:

    Phase 1. If the three-year review of CO emissions shows a significant increase in emissions, the ODEQ will reestablish ambient CO monitoring in Medford.

    Phase 2. If the monitoring data indicates that the LMP eligibility level of 7.65 ppm (85 percent of the 8-hr standard) is exceeded, the ODEQ will evaluate the cause of the CO increase, and investigate corrective strategies.

    Phase 3. If a validated violation of the CO standard occurs, in addition to Phase 2 above, the ODEQ will replace the BACT requirement for new and expanding industry with Lowest Achievable Emission Rate (LAER); reinstate CO emissions offset requirements for new and expanding industry; and consider other CO emission reduction measures.

    F. Transportation and General Conformity

    Federal transportation conformity rules (40 CFR parts 51 and 93) and general conformity rules (58 FR 63214) continue to apply under a LMP. However, as noted in the LMP Option memo, these requirements are greatly simplified. An area under a LMP can demonstrate conformity without submitting an emissions budget, and as a result, emissions do not need to be capped nor does a regional emissions analysis (including modeling) need to be conducted.

    On April 28, 2016, the EPA found the Medford CO LMP to be adequate for transportation conformity purposes (81 FR 25394). Although regional emissions are no longer required as part of the transportation conformity determinations for CO for the Medford area, other transportation conformity requirements continue to apply to the area, such as consultation, transportation control measures, and project level conformity requirements. The Medford area will continue to be exempt from performing a regional emission analysis, but must meet project-level conformity analyses as well as transportation conformity areas.

    IV. Final Action

    In accordance with the requirements of the CAA, the EPA is approving the Medford CO LMP submitted by the ODEQ on December 11, 2015, and supplemented on December 30, 2015. The ODEQ has adequately demonstrated that the Medford area qualifies for the LMP option and will maintain the CO NAAQS through the second 10-year maintenance period through 2025.

    V. Statutory and Executive Order Reviews

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

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 this action does not involve technical standards; and

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 19, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of the Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: June 30, 2016. Michelle L. Pirzadeh, Acting Regional Administrator, Region 10.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart MM—Oregon
    2. Amend § 52.1970, paragraph (e), table titled “State of Oregon Air Quality Control Program” by revising “Section 4” to read as follows:
    § 52.1970 Identification of plan.

    (e) * * *

    State of Oregon Air Quality Control Program SIP citation Title/subject State
  • effective date
  • EPA
  • approval date
  • Explanation
    *         *         *         *         *         *         * Section 4 Control Strategies for Nonattainment Areas 4.1, 12/19/1980 4.1, 4/12/1982, 47 FR 15587 4.1 Portland-Vancouver TSP Attainment Plan. 4.2, 7/16/1982 4.2, 10/7/1982, 47 FR 44261 4.2 Portland-Vancouver CO Attainment Plan. 4.3, 7/16/1982 4.3, 10/7/1982, 47 FR 44261 4.3 Portland-Vancouver Ozone Attainment Plan. 4.4, 6/20/1979 4.4, 6/24/1980, 45 FR 42265 4.4 Salem CO Attainment Plan. 4.5, 9/19/1980 4.5, 4/12/1982, 47 FR 15587 4.5 Salem Ozone Attainment Plan. 4.6, 1/30/1981 4.6, 4/12/1982, 47 FR 15587 4.6 Eugene-Springfield TSP Attainment Plan. 4.7, 6/20/1979 4.7, 6/24/1980, 45 FR 42265 4.7 Eugene-Springfield CO Attainment Plan. 4.7, 12/9/1988 4.7, 12/6/1993, 58 FR 64161 4.7 Eugene-Springfield CO Maintenance Plan. 4.8, 1/25/85 4.8, 6/4/1986, 51 FR 20285 4.8 Medford-Ashland Ozone, Maintenance Plan. 4.9, 10/15/1982 4.9, 2/13/1987, 52 FR 4620 4.9 Medford-Ashland CO Attainment Plan. 4.10, 4/1983 4.10, 8/15/1984, 49 FR 32574 4.10 Medford-Ashland TSP, Attainment Plan. 4.11, 10/24/1986 4.11, 1/15/1988, 53 FR 1020 4.11 Grants Pass CO, Attainment Plan. 4.12, 8/18/1995 4.12, 4/14/1997, 62 FR 18047 4.12 Klamath Falls PM-10 Attainment Plan. 4.13, 11/13/1991 4.13, 12/17/1993, 58 FR 65934 4.13 Grants Pass PM-10 Attainment Plan. 4.14, 9/9/2005 4.14, 6/19/2006, 71 FR 35163 4.14 Medford PM-10 Attainment and Maintenance Plan. 4.15, 11/8/1991 4.15, 2/15/1995, 60 FR 8563 4.15 La Grande PM-10 Attainment Plan. 4.16, 1/31/1991 4.16, 8/24/1994, 59 FR 43483 4.16 Eugene-Springfield PM-10 Attainment Plan. 4.17, 11/20/2000, (submittal date) 4.17, 9/20/2001, 66 FR 48340 4.17 Klamath Falls CO Maintenance Plan. 4.18, 11/4/1996 4.18, 3/15/1999, 64 FR 12751 4.18 Oakridge PM-10 Attainment Plan. 4.19, 6/1/1995, (submittal date) 4.19, 9/21/1999, 64 FR 51051 4.19 Lakeview PM-10 Attainment Plan. 4.50, 8/14/1996 4.50, 5/19/1997, 62 FR 27204 4.50 Portland/Vancouver Ozone Maintenance Plan. 4.50, 4/12/2007 4.50, 12/19/2011, 76 FR 78571 4.50 Portland-Vancouver AQMA (Oregon portion) & Salem Kaizer Area 8-hour Ozone (110(a)(1) Maintenance Plan. 4.51, 7/12/1996 4.51, 9/2/1997, 62 FR 46208 4.51 Portland CO Maintenance Plan. 4.52, 3/9/2001 4.52, 7/24/2002, 67 FR 48388 4.52 Medford CO Maintenance Plan. 4.53, 9/10/1999 4.53, 8/31/2000, 65 FR 52932 4.53 Grants Pass CO Maintenance Plan. 4.55, 10/4/2002 4.55, 10/27/2003, 68 FR 61111 4.55 Grants Pass PM-10 Maintenance Plan. 4.56, 10/4/2002 4.56, 10/21/2003, 68 FR 60036 4.56 Klamath Falls PM-10 Maintenance Plan. 4.57, 6/28/2007 4.57, 12/30/2008, 73 FR 79655 4.57 Salem-Keizer Area CO, Limited Maintenance Plan. 4.58, 12/15/2004 4.58, 1/24/2006, 71 FR 3768 4.58 Portland Area CO Maintenance Plan 2nd 10-year. 4.58, 12/11/2013 4.58, 5/22/2014, 79 FR 29360 4.58 Portland Area CO Maintenance Plan 2nd 10-year; TCM substitution update 4.58.3.2.2. 4.59, 9/9/2005 4.59, 6/19/2006, 71 FR 35161 4.59 La Grande PM10 Maintenance Plan. 4.60, 9/9/2005 4.60, 6/19/2006, 71 FR 35159 4.60 Lakeview PM10 Maintenance Plan. 4.61, 9/26/2011 4.61, 4/11/2013, 78 FR 21547 4.61 Eugene-Springfield PM10 Limited Maintenance Plan. 4.62, 12/12/2012 4.62, 6/6/2016, 81 FR 36178 4.62, Klamath Falls PM2.5 Attainment Plan. 4.63, 4/16/2015 4.63, 7/28/2015, 80 FR 44867 4.63 Grants Pass Second 10-Year Carbon Monoxide Limited Maintenance Plan. 4.64, 4/16/2015 4.64, 7/30/2015 80 FR 45435 4.64 Grants Pass Second 10-Year PM10 Limited Maintenance Plan. 4.65, 12/11/2015 4.65 7/20/2016 [Insert Federal Register citation] 4.65 Medford Second 10-Year Carbon Monoxide Limited Maintenance Plan. *         *         *         *         *         *         *
    [FR Doc. 2016-17060 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0708; FRL 9949-13-Region 7] Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; 2015 Kansas State Implementation Plan for the 2008 Lead Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a revision to the State Implementation Plan (SIP) for the State of Kansas. This final action will approve Kansas' SIP for the lead National Ambient Air Quality Standard (NAAQS) nonattainment area of Salina, Saline County, Kansas, received by EPA on February 25, 2015. EPA proposed approval of this plan on February 29, 2016. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the Clean Air Act (CAA) identified in EPA's Final Rule published in the Federal Register on October 15, 2008, and will bring the designated portions of Salina, Kansas, into attainment of the 0.15 microgram per cubic meter (ug/m3) lead NAAQS.

    DATES:

    This final rule is effective on August 19, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2015-0708. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Doolan, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7719, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to EPA.

    Table of Contents I. What is being addressed in this document? II. Have the requirements for the approval of a SIP revision been met? III. EPA's Response to Comments IV. What action is EPA taking? I. What is being addressed in this document?

    In this document, EPA is granting final approval of Kansas' attainment demonstration SIP for the lead NAAQS nonattainment area in portions of Salina, Saline County, Kansas. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will bring the area into attainment of the 0.15 microgram per cubic meter (ug/m3) lead NAAQS. EPA's proposal containing the background information for this action can be found at 81 FR 10162, February 29, 2016.

    II. Have the requirements for the approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    III. EPA's Response to Comments

    The public comment period on EPA's proposed rule opened February 29, 2016, the date of its publication in the Federal Register, and closed on March 30, 2016. During this period, EPA received one comment letter from Exide Technologies, dated March 23, 2016. The comment letter contained one comment regarding EPA's process description in section V.A.1 of the proposal which states:

    “The Exide facility in Salina, Kansas, manufactures lead acid batteries for automobiles, trucks, and watercraft. Lead emissions result from breaking open used batteries, re-melting the lead and reformulating new batteries.”

    Exide commented that EPA is in error regarding the description of the facility's processes; the Exide Salina, Kansas, facility does not break open used batteries, but rather, the facility maufactures new batteries at this location. EPA agrees with this comment. EPA misunderstood this portion of the facility operations. This comment does not substantively impact the decision to approve the attainment SIP, and EPA is therefore not changing its proposed action based on this comment.

    IV. What action is EPA taking?

    EPA is taking final action to amend the Kansas SIP to approve Kansas' attainment demonstration SIP for the 2008 lead NAAQS. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008 (73 FR 66964).

    Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the EPA-Approved Kansas Source-Specific Requirements. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    1 62 FR 27968 (May 22, 1997).

    Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 19, 2016. Filing a petition for reconsideration by the Administrator of this rule does not affect the finality of this rulemaking for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such future rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2))

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 8, 2016. Mark Hague, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

    Part 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et. seq.

    Subpart R—Kansas 2. In § 52.870: a. The table in paragraph (d) is amended by adding an entry “(5)” at the end of the table; and b. The table in paragraph (e) is amended by adding an entry “(43)” at the end of the table.

    The additions read as follows:

    § 52.870 Identification of plan.

    (d) * * *

    EPA-Approved Kansas Source-Specific Requirements Name of source Permit or case No. State
  • effective date
  • EPA
  • approval date
  • Explanation
    *         *         *         *         *         *         * (5) Exide Technologies 1690035 8/18/14 7/20/16, [Insert Federal Register citation]

    (e) * * *

    EPA-Approved Kansas Nonregulatory Provisions Name of nonregulatory
  • SIP provision
  • Applicable
  • geographic or
  • nonattainment
  • area
  • State
  • submittal
  • date
  • EPA
  • approval date
  • Explanation
    *         *         *         *         *         *         * (43) Attainment plan for 2008 lead NAAQS Salina 2/3/15 7/20/16, [Insert Federal Register citation] [EPA-R07-OAR-2015-0708; 9949-13-Region 7].
    [FR Doc. 2016-17065 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2015-0015; A-1-FRL-9949-17-Region 1] Air Plan Approval; RI; Regional Haze Five Year Progress Report AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island on January 7, 2015. This SIP revision includes Rhode Island's regional haze progress report and adequacy determination for the first regional haze implementation period. This action is being taken under the Clean Air Act (CAA).

    DATES:

    This direct final rule will be effective September 19, 2016, unless EPA receives adverse comments by August 19, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R01-OAR-2015-0015 by one of the following methods at www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comments received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Anne K. McWilliams, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109—3912, telephone (617) 918-1697, facsimile (617) 918-0697, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Organization of this document. The following outline is provided to aid in locating information in this preamble.

    I. Background II. Requirements for the Regional Haze Progress Report SIPs and Adequacy Determinations III. EPA's Evaluation of Rhode Island's SIP Revision A. Regional Haze Progress Report B. Determination of Adequacy of Existing Regional Haze Plan IV. Final Action V. Statutory and Executive Order Reviews I. Background

    States are required to submit a progress report in the form of a SIP revision every five years which evaluates progress towards the Reasonable Progress Goals (RPGs) for each mandatory Class I Federal area (Class I area) 1 within the state and each Class I area outside of the State which may be affected by emissions from within the state. See 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of the state's existing SIP. See 40 CFR 51.308(h). The first progress report is due five years after submittal of the initial regional haze SIP. On August 7, 2009, Rhode Island submitted the State's first Regional Haze SIP in accordance with the requirements of 40 CFR 51.308.2

    1 Areas designated as mandatory Class I Federal areas consist of national parks exceeding 6000 acres, wilderness areas and national memorial parks exceeding 5000 acres, and all international parks that were in existence on August 7, 1977 (42 U.S.C. 7472(a)).

    2 On May 22, 2012, EPA approved Rhode Island's August 7, 2009 Regional Haze SIP to address the first implementation period for regional haze. See 77 FR 30214.

    On January 7, 2015, the Rhode Island Department of Environmental Management (RI DEM) submitted a revision to the Rhode Island SIP detailing the progress made in the first planning period toward implementing the Long Term Strategy (LTS) outlined in the 2009 Regional Haze submittal. Because Rhode Island is not home to a Class I area, the State's Regional Haze SIP for the first planning period does not establish RPGs. During the consultation process with nearby States with Class I areas, it was determined that Rhode Island's emissions do not cause or contribute to the visibility impairment at any Class I area. See 77 FR 30214. However, the State still adopted a LTS to reduce emissions during the first regional haze planning period. The January 7, 2015 SIP also included a determination that the State's existing Regional Haze SIP requires no substantial revision to achieve the established regional haze visibility improvements and emission reduction goals for 2018.

    II. Requirements for the Regional Haze Progress Report SIPs and Adequacy Determination

    Under 40 CFR 51.308(g), States must submit a regional haze progress report, as a SIP revision, every five years and must address the seven elements found in 40 CFR 51.308(g). As described in further detail in section III of this rulemaking, 40 CFR 51.308(g) requires: (1) A description of the status of measures in the approved regional haze SIP; (2) a summary of emissions reductions achieved; (3) an assessment of the visibility conditions for each Class I area in the state; (4) an analysis of changes in emissions from sources and activities within the state; (5) an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded progress in Class I areas impacted by the state's sources; (6) an assessment of the sufficiency of the approved regional haze SIP; and (7) a review of the state's visibility monitoring strategy.

    Under 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing regional haze SIP and to take one of the following four possible actions based on information in the progress report: (1) Submit a negative declaration to EPA that no further substantive revision to the state's existing regional haze SIP is needed; (2) provide notification to EPA (and other state(s) that participated in the regional planning process) if the state determines that the existing regional haze SIP is, or may be, inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in other state(s) that participated in the regional haze planning process, and collaborated with these other state(s) to develop additional strategies to address deficiencies; (3) provide notification with supporting information to EPA if the state determines that its existing regional haze SIP is, or may be, inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in another county; or (4) revise its regional haze SIP to address deficiencies within one year if the state determines that its existing regional haze SIP is or may be inadequate to ensure reasonable progress in one or more Class I areas due to emission from sources within the state.

    III. EPA's Analysis of Rhode Island's SIP Revision

    On January 7, 2015, Rhode Island submitted the “Rhode Island Regional Haze Five Year Progress Report” (Progress Report) to EPA as a SIP revision.

    A. Regional Haze Progress Report

    This section summarizes each of the seven elements that must be addressed by the Progress Report under 40 CFR 51.308(g); how Rhode Island's Progress Report addressed each element; and EPA's analysis and determination as to whether the State satisfied each element.

    The provision under 40 CFR 51.308(g)(1) requires a description of the status of implementation of all measures included in the regional haze SIP for achieving RPGs for Class I areas both within and outside the state which may be impacted by emissions from the State. During the regional haze planning process, an area-of-influence modeling analysis based on back trajectories was used to assess Rhode Island's contribution to visibility impairment in other states.3 Based on this analysis, Rhode Island was found to not influence visibility impairment at any Class I area. In the 2009 Rhode Island Regional Haze SIP, however, the State agreed to pursue the coordinated course of action agreed to by the Mid-Atlantic/Northeast Visibility Union (MANE-VU) 4 to assure reasonable progress toward preventing any future, and remedying any existing, impairment of visibility in the mandatory Class I areas within the MANE-VU region. Those measures are: Implementation of best available retrofit technology (BART) requirements; a low-sulfur fuel oil strategy; a targeted electricity generating unit (EGU) strategy; and continued evaluation of other control measures.5

    3Contributions to Regional Haze in the Northeast and Mid-Atlantic United States, August 2006 http://www.nescaum.org/documents/contributions-to-regional-haze-in-the-northeast-and-mid-atlantic-united-states/mane-vu_haze_contribution_asessment-2006-0831.pdf/.

    4 MANE-VU is a collaborative effort of State governments, Tribal governments, and various federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility and other air quality issues in the Northeastern United States. Member State and Tribal governments include: Connecticut, Delaware, the District of Columbia, Maine Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Penobscot Indian Nation, Rhode Island, and Vermont.

    5 The MANE-VU “Ask” was structured around the finding that sulfur dioxide (SO2) emissions were the dominate visibility impairing pollutant at the Northeastern Class I areas. See “Regional Haze and Visibility in the Northeast and Mid-Atlantic States,” January 31, 2001.

    In its Progress Report, Rhode Island summarized the status of these measures in accordance with the requirements under 40 CFR 51.308(g)(1). Rhode Island is not home to any BART sources or targeted EGUs. Although Rhode Island did not include a low sulfur fuel oil strategy in its 2009 Regional Haze SIP, the State committed to adopt a low-sulfur fuel strategy during the first planning period. The 2015 Progress Report details the adoption and implementation of the State's revised low sulfur fuel oil regulation 6 that requires fuel sold in the state meet a sulfur in fuel limit of 0.05% for distillate oil by 2014, 0.015% for distillate oil by 2018, and 0.5% for residual oil by 2018. With respect to the continued evaluation of other control measures, Rhode Island reiterates the State's continued participation in MANE-VU consultations.

    6 EPA approved Rhode Island's Regulation No. 8—Sulfur Content of Fuels into the Rhode Island SIP on October 7, 2015. See 80 FR 60541.

    EPA finds that Rhode Island's analysis adequately addresses the provision under 40 CFR 51.308(g)(1). The State documents the implementation of a low sulfur fuel strategy which the State committed to adopt in the 2009 Regional Haze SIP.

    The provision under 40 CFR 51.308(g)(2) requires a summary of the emission reductions achieved in the state through the measures subject to the requirements under 40 CFR 51.308(g)(1). In the Progress Report, RI DEM presents the State's annual sulfur dioxide (SO2) emissions from the 2002 RI Regional Haze SIP baseline and from the 2011 emission inventory.7 SO2 emissions decreased from 8,026 tons per year (tpy) in 2002 to 4,839 tpy in 2011, i.e., approximately a 40% reduction. RI DEM estimates that the adoption of the low sulfur fuel rule, which has compliance dates in 2014 and 2018, will result in an additional 3,000 tpy SO2 reduction in the point and area sectors by 2018. Thus, current projections from 2011 to 2018 would be 4,839 tpy minus 3,000 tpy, or approximately 1,839 tpy. This compares well with the original RI Regional Haze SIP projection of 1,703 tons of SO2 emissions in 2018.

    7 The 2011 data is the 2011 National Emission Inventory (NEI) data. NEI inventory uses state-supplied data or model inputs for area and non-road estimates. The following adjustments were submitted by the state: Emissions for area source industrial and commercial boilers were recalculated using a residual oil sulfur content of 1%, rather than 2.25% to reflect the actual sulfur content of oil sold in the State and sources that RI DEM inventories as point sources were subtracted from the appropriate categories in EPA's non-point (area source) inventory to avoid double counting of those emissions.

    EPA finds that Rhode Island has adequately addressed the provision under 40 CFR 51.308(g)(2). As discussed above, Rhode Island was not found to be contributing to the visibility impairment at any Class I area. However, the State has demonstrated a 40% reduction in the predominant visibility impairing pollutant (SO2) and has adopted a low sulfur fuel strategy to further reduce SO2 emissions from area and point sources by 2018.

    The provisions under 40 CFR 51.308(g)(3) require that states with Class I areas within their borders provide the following information for the most impaired days and least impaired days 8 for each area, with values expressed in terms of five-year averages of these annual values: (1) Current visibility conditions; (2) the difference between current visibility conditions and baseline visibility conditions; and (3) the change in visibility impairment over the past five years.

    8 The “most impaired days” and “least impaired” days in the regional haze rule refers to the average visibility impairment (measured in deciviews) for twenty percent of monitored days in a calendar year with the highest and lowest amount of visibility impairment, respectively, averaged over a five-year period. See 40 CFR 51.301.

    Because Rhode Island does not have any Class I areas within its borders and the state was found not to contribute to any other Class I area, EPA concludes that Rhode Island's progress report is not required to address 40 CFR 51.308(g)(3).

    The provision under 40 CFR 51.308(g)(4) requires an analysis tracking emissions changes of visibility-impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emissions inventory. In its Progress Report to address the requirements of 40 CFR 51.308(g)(4), Rhode Island presents data from the baseline 2002 and 2011 NEI statewide emissions inventories for SO2, oxides of nitrogen (NOX), and fine particulate (PM2.5) for Point, Area, Onroad, and Nonroad sectors. Overall, during this period, SO2 emissions have decreased by 40% and NOX emissions have decreased by 17%. There was a 770 tpy or 26% increase in the PM2.5 inventory during this same time period. RI DEM explained that the increased Area PM2.5 inventory was due to the utilization of a wood combustion calculation tool used for the 201l inventory which was not available for the 2002 inventory. Thus, the resulting emissions for this sub-category is not comparable between the 2002 and 2011 inventory.

    EPA finds that Rhode Island's Progress Report adequately addresses the provision under 40 CFR 51.308(g)(4). RI DEM compared the most recent updated emission inventory data available at the time of the development of the Progress Report with the baseline emissions from the Regional Haze SIP. The Progress Report appropriately details the 2011 SO2, NOX, and PM2.5 reductions achieved, by sector, thus far in the first Regional Haze planning period.

    The provision under 40 CFR 51.308(g)(5) requires an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred over the past five years that have limited or impeded progress in reducing pollutant emissions and improving visibility in the Class I areas impacted by the state's sources. In the Progress Report, RI DEM reiterated that Rhode Island was found not to be causing or contributing to the visibility impairment at any Class I area, and that the State was implementing a low-sulfur fuel oil strategy which will lead to additional reductions in SO2 and PM2.5 emissions. The RI DEM also cited a Northeast States for Coordinated Air Use Management (NESCAUM) report which indicates that the MANE-VU Class I areas are on track to meet all of the 2018 visibility goals.9

    9 NESCAUM for MANE-VU, “Tracking Visibility Progress 2004-2011,” revised May 24, 2013. http://www.nescaum.org/documents/manevu-trends-2004-2011-report-final-20130430.pdf/view.

    EPA finds that Rhode Island adequately addressed the provision under 40 CFR 51.308(g)(5). There have not been any significant changes in anthropogenic emissions within the state which has limited or impeded progress in reducing pollutant emissions and improving visibility at the nearby Class I areas.

    The provision under 40 CFR 51.308(g)(6) requires an assessment of whether the current regional haze SIP is sufficient to enable the state, or other states, to meet the RPGs for the Class I areas affected by emissions from the state. In the Progress Report, Rhode Island reiterated that the State is not home to any Class I area nor were the emissions from Rhode Island found to cause or contribute to the visibility impairment at any nearby Class I area. Rhode Island also showed that SO2 emissions have decreased by 40% as of 2011 and that additional SO2 reductions are expected with the implementation of the adopted low-sulfur fuel oil strategy. Rhode Island found that the Regional Haze SIP submittal was sufficient.

    EPA finds that the state has adequately addressed the provision under 40 CFR 51.308(g)(6) which requires an assessment of whether the Rhode Island Regional Haze SIP submittal is sufficient to enable the state, or other states, to meet the RPGs for the Class I areas affected by emissions from the state.

    The provision under 40 CFR 51.308(g)(7) requires the review of a state's visibility monitoring strategy for Class I areas and an assessment of whether any modifications to the monitoring strategy are necessary. Because Rhode Island does not have any Class I areas within its borders, EPA concludes that Rhode Island's Progress Report is not required to address 40 CFR 51.308(g)(7).

    B. Determination of Adequacy of the Existing Regional Haze Plan

    Under 40 CFR 51.308(h), states are required to take one of four possible actions based on the information gathered and conclusions made in the progress report SIP.

    In the Progress Report SIP, Rhode Island took the action provided for by the provisions under 40 CFR 51.308(h)(1), which allow a state to submit a negative declaration to EPA if the state determines that the existing SIP requires no further substantive revision at this time to achieve the RPGs at nearby Class I areas. The basis for the State's negative declaration is the determination that emissions from Rhode Island do not cause or contribute to the visibility impairment at any Class I area. In addition, the State demonstrated SO2 emission reductions achieved since the 2002 baseline of the Rhode Island Regional Haze SIP and outlined projected additional SO2 emission reductions expected by 2018.

    EPA finds that Rhode Island has adequately addressed the requirements of 40 CFR 51.308(h). Even though Rhode Island does not impact the visibility at any nearby Class I areas, the State has reduced emissions of visibility impairing pollutants and is on track to achieve the long term strategy detailed in its 2009 Regional Haze SIP for the first regional haze planning period. Therefore, the existing Rhode Island Regional Haze SIP requires no substantive revisions to achieve the RPGs for nearby Class I areas.

    IV. Final Action

    EPA is approving Rhode Island's Regional Haze Five Year Progress Report SIP revision, submitted by RI DEM on January 7, 2015, as meeting the applicable regional haze requirements set forth in 40 CFR 51.308(g) and (h).

    The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective September 19, 2016 without further notice unless the Agency receives relevant adverse comments by August 19, 2016.

    If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 19, 2016 and no further action will be taken on the proposed rule. 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.

    V. Statutory and Executive Order Reviews

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

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 5, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart OO—Rhode Island 2. In § 52.2070, paragraph (e) table is amended by adding a new entry at the end of the table to read as follows:
    § 52.2070 Identification of plan.

    (e) * * *

    Rhode Island Non Regulatory Name of non regulatory SIP provision Applicable
  • geographic or nonattainment area
  • State submittal date/effective date EPA approved date Explanations
    *         *         *         *         *         *         * Rhode Island Regional Haze Five Year Progress Report Statewide Submitted 1/7/2015 7/20/2016 [Insert Federal Register citation]
    [FR Doc. 2016-16941 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0270; FRL-9949-34-Region 3] Finding of Failure To Submit a State Implementation Plan; Maryland; Interstate Transport Requirements for the 2008 8-Hour National Ambient Air Quality Standards for Ozone AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action finding that Maryland has failed to submit an infrastructure state implementation plan (SIP) to satisfy certain interstate transport requirements of the Clean Air Act (CAA) with respect to the 2008 8-hour ozone national ambient air quality standard (NAAQS). Specifically, these requirements pertain to the obligation to prohibit emissions which significantly contribute to nonattainment, or interfere with maintenance, of the 2008 8-hour ozone NAAQS in other states. This finding of failure to submit establishes a 2-year deadline for EPA to promulgate a federal implementation plan (FIP) to address the interstate transport SIP requirements pertaining to significant contribution to nonattainment and interference with maintenance of the 2008 ozone NAAQS in other states unless, prior to EPA promulgating a FIP, the state submits, and EPA approves, a SIP that meets these requirements.

    DATES:

    This final rule is effective on August 19, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0270. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through www.regulations.gov or may be viewed during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

    FOR FURTHER INFORMATION CONTACT:

    Marilyn Powers, (215) 814-2308, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: Notice and Comment Under the Administrative Procedure Act (APA)

    Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this final agency action without prior proposal and opportunity for comment because no significant EPA judgment is involved in making a finding of failure to submit SIPs, or elements of SIPs, required by the CAA, where states have made no submissions, or incomplete submissions, to meet the requirement. Thus, notice and public procedures are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

    I. Background and Overview A. Interstate Transport SIPs

    CAA section 110(a) imposes an obligation upon states to submit SIPs that provide for the implementation, maintenance and enforcement of a new or revised NAAQS within 3 years following the promulgation of that NAAQS. Section 110(a)(2) lists specific requirements that states must meet in these SIP submissions, as applicable. EPA refers to this type of SIP submission as the “infrastructure” SIP because it ensures that states can implement, maintain and enforce the air standards. Within these requirements, section 110(a)(2)(D)(i) contains requirements to address interstate transport of NAAQS pollutants. A SIP revision submitted for this sub-section is referred to as an “interstate transport SIP.” In turn, section 110(a)(2)(D)(i)(I) requires that such a plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS in any other state (prong 1) or interfere with maintenance of the NAAQS in any other state (prong 2). Interstate transport prongs 1 and 2, also called the “good neighbor” provisions, are the requirements relevant to this findings document.

    Pursuant to CAA section 110(k)(1)(B), EPA must determine no later than 6 months after the date by which a state is required to submit a SIP whether a state has made a submission that meets the minimum completeness criteria established per section 110(k)(1)(A). EPA refers to the determination that a state has not submitted a SIP that meets the minimum completeness criteria as a “finding of failure to submit.” If EPA finds a state has failed to submit a SIP to meet its statutory obligation to address 110(a)(2)(D)(i)(I), pursuant to section 110(c)(1) EPA has not only the authority, but the obligation, to promulgate a FIP within 2 years to address the CAA requirement. This finding therefore starts a 2-year clock for promulgation by EPA of a FIP, in accordance with CAA section 110(c)(1), unless prior to such promulgation the state submits, and EPA approves, a submittal from the state to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. EPA notes this action does not start a mandatory sanctions clock pursuant to CAA section 179 because this finding of failure to submit does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).

    B. Finding of Failure To Submit for States That Did Not Submit a SIP

    On March 12, 2008, EPA strengthened the NAAQS for ozone. EPA revised the 8-hour primary ozone standard from 0.08 parts per millions (ppm) to 0.075 ppm. EPA also revised the secondary 8-hour standard to the level of 0.075 ppm making it identical to the revised primary standard. Infrastructure SIPs addressing the revised standard, including the interstate transport requirements, were due March 12, 2011.

    On December 27, 2012, Maryland submitted an infrastructure SIP for the 2008 ozone NAAQS. EPA determined the December 27, 2012 SIP submittal as complete on January 2, 2013. On May 2, 2014, EPA proposed approval of Maryland's infrastructure SIP submittal for the 2008 ozone NAAQS, but did not propose to take action on the portion of the submittal related to section 110(a)(2)(D)(i)(I), stating that EPA would take separate action on this part of the submittal. See 79 FR 25054.

    On July 13, 2015, EPA published a rule finding that 24 states failed to submit complete SIPs that addressed the “good neighbor” provision for the 2008 Ozone NAAQS. See 80 FR 39961 (July 13, 2015).1 The finding action triggered a 2-year clock for the EPA to issue FIPs to address the “good neighbor” requirements for those states by August 12, 2017. Prior to issuance of the finding action, Maryland made a submission addressing the “good neighbor” provision for the 2008 ozone NAAQS on December 27, 2012, therefore, the state was not included in EPA's July 2015 finding notice. Following Maryland's submittal of its infrastructure SIP and EPA's July 2015 finding notice, EPA proposed a rule on November 16, 2015 2 to address the “good neighbor” requirements for the 2008 ozone NAAQS. The rule proposed to promulgate FIPs in 23 eastern states, including Maryland, to reduce interstate ozone transport for the 2008 ozone NAAQS. EPA proposed to issue FIPs only for those states that either failed to submit a SIP or for which the EPA disapproved the state's SIP addressing the “good neighbor” provision by the date the rule was finalized. EPA expects to finalize the rule and respective FIPs, as applicable, later this year.

    1 This finding is included in the docket for this action and available online at www.regulations.gov.

    2 See “Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS; Proposed Rules,” 80 FR 75706 (December 3, 2015).

    On April 20, 2016, EPA received a letter, dated April 12, 2016,3 from the Maryland Department of the Environment acknowledging that the transport component of the December 27, 2012 infrastructure SIP submittal needed to be updated with additional control measures and withdrawing from EPA's consideration the section 110(a)(2)(D)(i)(I) portion of Maryland's infrastructure SIP submittal dated December 27, 2012. The letter also states that Maryland plans to submit to EPA an updated good neighbor SIP in the future.

    3 Maryland's April 12, 2012 letter inadvertently referred to an incorrect submittal date of December 31, 2012. The only infrastructure SIP submission from Maryland addressing section 110(a)(2) for the 2008 ozone NAAQS is the December 27, 2012 submittal.

    II. Final Action

    With the withdrawal of the good neighbor portion of the December 27, 2012 infrastructure SIP submittal, Maryland has not submitted to EPA a SIP to address CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA is therefore finding that Maryland has failed to submit a complete good neighbor SIP to meet the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. This finding starts a 2-year clock for promulgation by EPA of a FIP after the effective date of this final rule, in accordance with section 110(c)(1), unless prior to such promulgation that Maryland submits, and EPA approves, a submittal that meets the requirements of CAA section 110(a)(2)(D)(i)(I). This finding of failure to submit does not impose sanctions, and does not set deadlines for imposing sanctions as described in section 179, because it does not pertain to the elements of a CAA title I, part D plan for nonattainment areas as required under section 110(a)(2)(I), and because this action is not a SIP call pursuant to section 110(k)(5).

    III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This final rule does not establish any new information collection requirement apart from what is already required by law.

    C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements because the agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).

    D. Unfunded Mandates Reform Act of 1995 (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in the CAA under section 110(a) without the exercise of any policy discretion by the EPA.

    E. Executive Order 13132: Federalism

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

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. This rule responds to the requirement in the CAA for states to submit SIPs under section 110(a) to address CAA section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. No tribe is subject to the requirement to submit an implementation plan under section 110(a) within 3 years of promulgation of a new or revised NAAQS. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

    J. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    K. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 19, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

    This action finding that Maryland has failed to submit a CAA section 110(a)(2)(D)(I)(I) SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental relations, Ozone.

    Dated: July 8, 2016. Shawn M. Garvin, Regional Administrator, Region III.
    [FR Doc. 2016-17057 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0149; FRL-9948-64] 2-Propenoic Acid, Butyl Ester, Polymer With Ethenyl Acetate and Sodium Ethenesulfonate; Tolerance Exemption AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate (CAS Reg. No. 66573-43-1) when used as an inert ingredient in a pesticide chemical formulation. Celanese Ltd submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate on food or feed commodities.

    DATES:

    This regulation is effective July 20, 2016. Objections and requests for hearings must be received on or before September 19, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0149, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

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

    C. Can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0149 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 19, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0149, by one of the following methods.

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

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

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

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

    II. Background and Statutory Findings

    In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9944-86), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-10900) filed by Celanese Ltd, 222 W Las Colinas Blvd., Suite 900N, Irving, TX 75039. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate (CAS No. 66573-43-1). That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any comments.

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

    III. Risk Assessment and Statutory Findings

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

    Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

    1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

    2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.

    3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

    4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

    5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

    6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

    7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as specified in 40 CFR 723.250(d)(6).

    Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

    8. The polymer's number average MW of 20,500 is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

    Thus, 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.

    IV. Aggregate Exposures

    For the purposes of assessing potential exposure under this exemption, EPA considered that 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate is 20,500 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

    V. Cumulative Effects From Substances With a Common Mechanism of Toxicity

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

    EPA has not found 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate to share a common mechanism of toxicity with any other substances, and 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    VI. Additional Safety Factor for the Protection of Infants and Children

    Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

    VII. Determination of Safety

    Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.

    VIII. Other Considerations A. Existing Exemptions From a Tolerance

    There are no existing exemptions from a tolerance for 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.

    B. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

    C. International Residue Limits

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

    The Codex has not established a MRL for 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate.

    IX. Conclusion

    Accordingly, EPA finds that exempting residues of 2-propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate from the requirement of a tolerance will be safe.

    X. Statutory and Executive Order Reviews

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

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

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

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

    XI. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: July 11, 2016. Daniel Kenny, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.960, add alphabetically the polymer “2-Propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate, minimum number average molecular weight (in amu), 20,500” in the table to read as follows:
    § 180.960 Polymers; exemptions from the requirement of a tolerance. Polymer CAS No. *         *         *         *         *         *         * 2-Propenoic acid, butyl ester, polymer with ethenyl acetate and sodium ethenesulfonate, minimum number average molecular weight (in amu), 20,500 66573-43-1 *         *         *         *         *         *         *
    [FR Doc. 2016-17165 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 457 [CMS-2390-F2] RIN-0938-AS25 Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability; Correcting Amendment AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Final rule; correcting amendment.

    SUMMARY:

    This document corrects a technical error that appeared in the final rule published in the May 6, 2016 Federal Register (81 FR 27498 through 27901) entitled, “Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability.” The effective date for the rule was July 5, 2016.

    DATES:

    Effective Date: This correcting document is effective July 18, 2016.

    Applicability Date: The corrections indicated in this document are applicable beginning July 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Williams, (410) 786-4435, CHIP.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc. 2016-09581 (81 FR 27498 through 27901), the final rule entitled, “Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability” there was a technical error that is identified and corrected in this correcting document. The correction is applicable as of July 5, 2016.

    II. Summary of Errors in the Regulations Text

    On page 27896 of the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule, we made a technical error in the regulation text of § 457.10. In this paragraph, we inadvertently omitted an amendatory instruction to add the definition of “Federally Qualified HMO” in alphabetical order. Accordingly, we are revising the amendatory instruction for § 457.10 to add this definition as it was published in the May 6, 2016 Federal Register.

    III. Waiver of Proposed Rulemaking and Delay in Effective Date

    Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. In addition, section 553(d) of the APA mandates a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the APA notice and comment, and delay in effective date requirements. Section 553(b)(B) of the APA authorizes an agency to dispense with normal notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest; and includes a statement of the finding and the reasons for it in the notice. In addition, section 553(d)(3) of the APA allows the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and the agency includes in the rule a statement of the finding and the reasons for it.

    In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects technical errors in the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were adopted subject to notice and comment procedures in the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule. As a result, the corrections made through this correcting document are intended to ensure that the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule accurately reflects the policies adopted in that rule.

    Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule accurately reflects our final policies as soon as possible following the date they take effect. Further, such procedures would be unnecessary, because we are not altering the payment methodologies or policies or making any substantive revision to the description of the definition as proposed or purported to be finalized in the preamble of the final rule, but rather, we are simply correcting the Federal Register document to reflect the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, and Revisions Related to Third Party Liability final rule accurately reflects these policies. For these reasons, we believe there is good cause to waive the requirements for notice and comment and delay in effective date.

    List of Subjects in 42 CFR Part 457

    Administrative practice and procedure, Grant programs-health, Health insurance, Reporting and recordkeeping requirements.

    Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendment to part 457:

    PART 457—ALLOTMENTS AND GRANTS TO STATES 1. The authority citation for part 457 continues to read as follows: Authority:

    Section 1102 of the Social Security Act (42 U.S.C. 1302).

    2. Section 457.10 is amended by adding the definition of “Federally Qualified HMO” in alphabetical order to read as follows:
    § 457.10 Definitions and use of terms.

    Federally qualified HMO means an HMO that CMS has determined is a qualified HMO under section 2791(b)(3) of the Public Health Service Act.

    Dated: July 14, 2016. Madhura Valverde, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2016-17157 Filed 7-18-16; 4:15 pm] BILLING CODE 4120-01-P
    AGENCY FOR INTERNATIONAL DEVELOPMENT 48 CFR Part 752 RIN 0412-AA82 Agency for International Development Acquisition Regulation (AIDAR): Preference for Privately Owned U.S.-Flag Commercial Vessels. AGENCY:

    U.S. Agency for International Development.

    ACTION:

    Direct final rule.

    SUMMARY:

    The U.S. Agency for International Development (USAID) is revising the Agency for International Development Acquisition Regulation (AIDAR) clause to conform to the current requirements of the Cargo Preference Act of 1954 and provide up-to-date submission instructions to the Maritime Administration (MARAD).

    DATES:

    This rule is effective October 18, 2016 without further action, unless adverse comments are received by September 19, 2016. If adverse comments are received, USAID will publish a timely withdrawal of this rule in the Federal Register. Submit comments on or before September 19, 2016.

    ADDRESSES:

    Address all comments concerning this notice to Lyudmila Bond, Bureau for Management, Office of Acquisition and Assistance, Policy Division (M/OAA/P), Room 867J, SA-44, Washington, DC 20523-2052. Submit comments, identified by title of the action and Regulation Identifier Number (RIN) by any of the following methods:

    1. Through the Federal eRulemaking Portal at http://www.regulations.gov by following the instructions for submitting comments.

    2. By Email: Submit electronic comments to [email protected] See SUPPLEMENTARY INFORMATION for file formats and other information about electronic filing.

    3. By Mail addressed to: USAID, Bureau for Management, Office of Acquisition & Assistance, Policy Division, Room 867J, SA-44, 1300 Pennsylvania Ave. NW., Washington, DC 20523-2052.

    FOR FURTHER INFORMATION CONTACT:

    Lyudmila Bond, Telephone: 202-567-4753 or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    A. Instructions

    All comments must be in writing and submitted through one of the methods specified in the ADDRESSES section above. All submissions must include the title of the action and RIN for this rulemaking. Please include your name, title, organization, postal address, telephone number, and email address in the text of the message.

    Comments submitted by email must be included in the text of the email or attached as a PDF file. Please avoid using special characters and any form of encryption. Please note that USAID recommends sending all comments to the Federal eRulemaking Portal because security screening precautions have slowed the delivery and dependability of surface mail to USAID/Washington.

    After receipt of a comment and until finalization of the action, all comments will be made available at http://www.regulations.gov for public review without change, including any personal information provided. We recommend you do not submit information that you consider Confidential Business Information (CBI) or any information that is otherwise protected from disclosure by statute.

    USAID is publishing this revision as a direct final rule as the Agency views this as a conforming and administrative amendment and does not anticipate any adverse comments. This rule will be effective on the date specified in the DATES section above without further notice unless adverse comment(s) are received by the date specified in the DATES section above.

    USAID will only address substantive comments on the rule. Comments that are insubstantial or outside the scope of the rule may not be considered.

    If adverse comments are received on the direct final rule, USAID will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect. If no adverse comments are received, this final rule will become final after the designated period. Additionally, USAID is publishing a separate document in the “Proposed Rules” section of this Federal Register that will serve as the proposal to approve these AIDAR revisions if adverse comments are received.

    USAID will address all public comments in a subsequent final rule based on the proposed rule. USAID will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    B. Background

    USAID is revising AIDAR section 752.247-70, Preference for privately owned U.S.-flag commercial vessels to conform to the current requirements of the Cargo Preference Act of 1954. The Act mandates that at least 50 percent of the gross tonnage of all Government generated cargo be transported on privately owned, U.S.-flag commercial vessels, to the extent such vessels are available at fair and reasonable rates. Other changes to the clause include up-to-date submission requirements to the Maritime Administration (MARAD). The changes will not impose any additional requirements on contractors.

    C. Impact assessment (1) Regulatory Planning and Review

    Under E.O. 12866, USAID must determine whether a regulatory action is “significant” and therefore subject to the requirements of the E.O. and subject to review by the Office of Management and Budget (OMB). USAID has determined that this Rule is not an “economically significant regulatory action” under Section 3(f)(1) of E.O. 12866. This rule is not a major rule under 5 U.S.C. 804.

    (2) Regulatory Flexibility Act

    The rule will not have an impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Therefore, an Initial Regulatory Flexibility Analysis has not been performed.

    (3) Paperwork Reduction Act

    The rule does not establish a new collection of information that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 752

    Government procurement.

    For the reasons discussed in the preamble, USAID amends 48 CFR part 752 as set forth below:

    PART 752—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 1. The authority citation for part 752 continues to read as follows: Authority:

    Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 1979 Comp., p. 435.

    2. Amend 752.247-70: i. In paragraph (a), by removing the words “46 U.S.C. 1241(b)” and adding in their place the words “46 U.S.C. 55305)” and removing the words “at least 75 percent” and adding in their place the words “at least 50 percent”; ii. In paragraph (b), by removing the words “programs or activities” and adding in their place the word “program” and removing the words “50 or 75 percent” and adding in their place the words “50 percent”; iii. In paragraph (c)(1) introductory text, by removing the words “the Division of National Cargo, Office of Cargo Preference, Maritime Administration, U.S. Department of Transportation, Washington, DC 20590” and adding in their place the words “Office of Cargo and Commercial Sealift, Maritime Administration (MARAD), U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590”; and iv. By adding paragraph (c)(1)(iii).

    The addition reads as follows:

    752.247-70 Preference for privately owned U.S.-flag commercial vessels.

    (c)(1) * * *

    (iii) For all shipments, scanned copies for MARAD must be sent to: [email protected]

    Dated: July 6, 2016. Mark Walter, Acting Chief Acquisition Officer.
    [FR Doc. 2016-17137 Filed 7-19-16; 8:45 am] BILLING CODE 6116-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2016-0028; 4500030113] RIN 1018-BB67 Endangered and Threatened Wildlife and Plants; Lesser Prairie-Chicken Removed From the List of Endangered and Threatened Wildlife AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service, are issuing a final rule to comply with a court order that vacated the final rule listing the lesser prairie-chicken (Tympanuchus pallidicinctus) as a threatened species under the Endangered Species Act of 1973, as amended (Act). This final rule amends our regulations by removing the lesser prairie-chicken from the Federal List of Endangered and Threatened Wildlife and by removing the rule issued under section 4(d) of the Act for the lesser prairie-chicken.

    DATES:

    This rule is effective July 20, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Debra Bills, Field Supervisor, Arlington Ecological Services Field Office, 2005 NE. Green Oaks Blvd., Suite 140, Arlington, TX 76006; by telephone 817-277-1100; or by facsimile 817-277-1129. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Background

    On April 10, 2014, we published in the Federal Register a final rule (79 FR 19974) listing the lesser prairie-chicken (Tympanuchus pallidicinctus) as a threatened species under the Act (16 U.S.C. 1531 et seq.) in part 17 of title 50 of the Code of Federal Regulations (50 CFR 17.11(h)). On the same day, we published a final rule under section 4(d) of the Act (“4(d) rule”) for the lesser prairie-chicken (79 FR 20074) at 50 CFR 17.41(d). Please see the April 10, 2014, final listing rule for a complete discussion of previous Federal actions.

    On June 9, 2014, the Permian Basin Petroleum Association; Chaves County, New Mexico; Roosevelt County, New Mexico; Eddy County, New Mexico; and Lea County, New Mexico (plaintiffs) filed a lawsuit challenging the Service's final rule to list the lesser prairie-chicken as a threatened species under the Act. On September 1, 2015, the U.S. District Court for the District of West Texas issued an order vacating the final listing rule for the lesser prairie-chicken. By invalidating the rule listing the species, the court decision also had the effect of invalidating the 4(d) rule.

    Administrative Procedure

    This rulemaking is necessary to comply with the September 1, 2015, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are unnecessary. Because the court order had legal effect immediately upon being filed on September 1, 2015, the Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make this rule effective immediately upon publication.

    Effects of the Rule

    This rule is an administrative action to remove the lesser prairie-chicken from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to reflect the court's order to vacate the final rule listing this species. Consequently, this rule also removes the regulations specific to the lesser prairie-chicken at 50 CFR 17.41(d).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, for the reasons given in the preamble, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below.

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    § 17.11 [Amended]
    2. Amend § 17.11(h) by removing the entry for “Prairie-chicken, lesser” from the List of Endangered and Threatened Wildlife.
    § 17.41 [Amended]
    3. Amend § 17.41 by removing and reserving paragraph (d). Dated: July 7, 2016. Daniel M. Ashe, Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-17149 Filed 7-19-16; 8:45 am] BILLING CODE 4333-15-P
    81 139 Wednesday, July 20, 2016 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 532 RIN 3206-AN29 Prevailing Rate Systems; Redefinition of the New York, NY, and Philadelphia, PA, Appropriated Fund Federal Wage System Wage Areas AGENCY:

    U.S. Office of Personnel Management.

    ACTION:

    Proposed rule with request for comments.

    SUMMARY:

    The U.S. Office of Personnel Management (OPM) is issuing a proposed rule that would redefine the geographic boundaries of the New York, NY, and Philadelphia, PA, appropriated fund Federal Wage System (FWS) wage areas. The proposed rule would redefine the Joint Base McGuire-Dix-Lakehurst portions of Burlington County, NJ, and Ocean County, NJ, that are currently defined to the Philadelphia wage area to the New York wage area so that the entire Joint Base is covered by a single wage schedule. This change is based on a majority recommendation of the Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on the administration of the FWS.

    DATES:

    We must receive comments on or before August 19, 2016.

    ADDRESSES:

    You may submit comments, identified by “RIN 3206-AN29,” using any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Brenda L. Roberts, Deputy Associate Director for Pay and Leave, Employee Services, U.S. Office of Personnel Management, Room 7H31, 1900 E Street NW., Washington, DC 20415-8200.

    Email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Madeline Gonzalez, by telephone at (202) 606-2838 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    OPM is issuing a proposed rule to redefine the geographic boundaries of the New York, NY, and Philadelphia, PA, appropriated fund FWS wage areas. The proposed rule would redefine the Joint Base McGuire-Dix-Lakehurst portions of Burlington County, NJ, and Ocean County, NJ, that are currently defined to the Philadelphia wage area to the New York wage area so that the entire Joint Base is covered by a single FWS wage schedule.

    Presently, portions of the Joint Base are defined to the Philadelphia and to the New York FWS wage areas as follows:

    (1) The portion of the Joint Base formerly known separately as McGuire Air Force Base (AFB) is in Burlington County, NJ, and is defined to the Philadelphia wage area;

    (2) The portion of the Joint Base formerly known separately as Fort Dix is in Burlington and Ocean Counties, NJ, and is defined to the Philadelphia wage area; and

    (3) The portion of the Joint Base formerly known separately as Naval Air Engineering Station (NAES) Lakehurst is in Ocean County, NJ, and is defined to the New York wage area.

    History of Burlington and Ocean Counties, NJ

    When the Coordinated Federal Wage System (CFWS) established a uniform system of wage areas applicable to all Federal agencies in the late 1960s, Burlington County was defined to the Philadelphia survey area and Ocean County was defined to the Philadelphia area of application. Since both Burlington and Ocean Counties were defined to the Philadelphia wage area, employees at McGuire AFB, Fort Dix, and NAES Lakehurst were paid from the same Philadelphia wage schedule.

    OPM reviewed the geographic definition of the New York and Philadelphia FWS wage areas in the mid-1990s as part of a comprehensive review of many FWS wage areas. After careful consideration of OPM's regulatory criteria for defining FWS wage areas, FPRAC recommended by majority vote that OPM redefine Ocean County (excluding the portion occupied by Fort Dix) from the area of application of the Philadelphia wage area to the area of application of the New York wage area. FPRAC recommended this change because Ocean County was part of the New York-Northern New Jersey-Long Island, NY-NJ-PA MSA (now called New York-Newark-Jersey City, NY-NJ-PA MSA) and the transportation facilities and commuting patterns regulatory criteria favored defining Ocean County (excluding the portion occupied by Fort Dix) to the New York wage area rather than to the Philadelphia wage area. Although NAES Lakehurst was adjacent to Fort Dix, the Committee heard local testimony that there was little workforce interaction between NAES Lakehurst and Fort Dix or McGuire AFB.

    Currently, Burlington County continues to be defined to the Philadelphia survey area, and FWS employees stationed in Burlington County at the Joint Base are paid from the Philadelphia wage schedule. FWS employees stationed in Ocean County at the portion of the Joint Base formerly known separately as NAES Lakehurst are paid from the New York wage schedule. Local testimony to FPRAC from Joint Base employees and local managers indicates that the Joint Base has been presented with morale and management challenges by having employees at the Joint Base paid from two different FWS wage schedules. This poses challenges to the efficient operation of the installation. To address this anomalous situation affecting the Joint Base, OPM is proposing to add an additional criterion for defining FWS wage areas to 5 CFR 532.211.

    Regulatory Criteria Under 5 CFR 532.211

    OPM considers the following regulatory criteria under 5 CFR 532.211 when defining FWS wage area boundaries:

    (i) Distance, transportation facilities, and geographic features;

    (ii) Commuting patterns; and

    (iii) Similarities in overall population, employment, and the kinds and sizes of private industrial establishments.

    When measuring distances from the portion of the Joint Base formerly known separately as McGuire AFB, the distance criterion favors the Philadelphia wage area more than the New York wage area. When measured to nearby survey areas, the commuting patterns criterion for Burlington County favors the Philadelphia wage area more than the New York wage area. The overall population and employment and the kinds and sizes of private industrial establishments criterion favors the Philadelphia wage area more than the New York wage area.

    When measuring distances from the portion of the Joint Base formerly known separately as NAES Lakehurst, the distance criterion favors the Philadelphia wage area more than the New York wage area. When measured to nearby survey areas, the commuting patterns criterion for Ocean County favors the New York wage area more than the Philadelphia wage area. The overall population and employment and the kinds and sizes of private industrial establishments criterion favors the Philadelphia wage area more than the New York wage area.

    OPM regulations at 5 CFR 532.211 do not permit splitting Metropolitan Statistical Areas (MSAs) for the purpose of defining a wage area, except in very unusual circumstances. The status of the Joint Base presents an unusual circumstance that has in the past necessitated defining the New York and Philadelphia wage areas so that MSAs are split between the two wage areas. In addition, FPRAC has a longstanding policy of recommending that OPM avoid splitting individual installations between two separate wage areas. However, OPM has not previously regulated such a policy. OPM has previously determined that Burlington County is appropriately defined to the Philadelphia wage area and Ocean County, with the exception of the Fort Dix portion, is appropriately defined to the New York wage area.

    FPRAC recently completed an exhaustive review to determine the best method to treat FWS employees at the Joint Base equitably. As an exception to the regular criteria for defining FWS wage areas, FPRAC has recommended by majority vote that the Joint Base be defined entirely as a single installation. In addition, FPRAC has recommended that the Joint Base be defined to the New York wage area. OPM agrees with FPRAC's assessment to treat the Joint Base as a single installation for purposes of defining FWS wage areas. However, OPM finds that a standard analysis of the current regulatory criteria indicates that the proper definition for the entire Joint Base would be the Philadelphia wage area. To address the anomalous situation with the Joint Base and define it to the New York wage area requires an amendment to OPM's current regulatory criteria for defining FWS wage area boundaries. Therefore, OPM is proposing that 5 CFR 532.211 be amended by adding a new paragraph (f). This new paragraph would read: “(f) A single contiguous military installation defined as a Joint Base that would otherwise overlap two separate wage areas shall be included in only a single wage area. The wage area of such a Joint Base shall be defined to be the wage area with the most favorable payline based on an analysis of the simple average of the 15 nonsupervisory second step rates on each one of the regular wage schedules applicable in the otherwise overlapped wage areas.” This new criterion would not impact any current wage areas other than the New York and Philadelphia wage areas which are currently overlapped by Joint Base McGuire-Dix-Lakehurst.

    As of July 2015, OPM data indicate that around 630 FWS employees will be affected by the wage area changes proposed in this regulation. The New York wage schedule is currently higher than the Philadelphia wage schedule at most grade levels, which means most FWS employees at the Joint Base affected by this proposed regulation would receive higher wage rates. Those employees who would move to the New York wage schedule at grades where rates of pay are lower than on the Philadelphia wage schedule would be entitled to coverage under pay retention rules if otherwise eligible. The changes in this proposed regulation would be effective on the first day of the first applicable pay period beginning on or after 30 days following publication of a final regulation implementing any changes affecting the wage area definition of the Joint Base.

    Regulatory Flexibility Act

    I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees.

    Executive Order 13563 and Executive Order 12866

    This proposed rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 13563 and Executive Order 12866.

    List of Subjects in 5 CFR Part 532

    Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.

    U.S. Office of Personnel Management. Beth F. Cobert, Acting Director.

    Accordingly, OPM is proposing to amend 5 CFR part 532 as follows:

    PART 532—PREVAILING RATE SYSTEMS 1. The authority citation for part 532 continues to read as follows: Authority:

    5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.

    Subpart B—Prevailing Rate Determinations 2. Section 532.211 is revised by adding a paragraph (f) to read as follows:
    § 532.211 Criteria for establishing appropriated fund wage areas.

    (f) A single contiguous military installation defined as a Joint Base that would otherwise overlap two separate wage areas shall be included in only a single wage area. The wage area of such a Joint Base shall be defined to be the wage area with the most favorable payline based on an analysis of the simple average of the 15 nonsupervisory second step rates on each one of the regular wage schedules applicable in the otherwise overlapped wage areas.

    3. Appendix C to subpart B is amended by revising the wage area listing for the New York, NY, and Philadelphia, PA, wage areas to read as follows: Appendix C to Subpart B of Part 532—Appropriated Fund Wage and Survey Areas NEW YORK *    *    *    *    * New York Survey Area New Jersey: Bergen Essex Hudson Middlesex Morris Passaic Somerset Union New York: Bronx Kings Nassau New York Orange Queens Suffolk Westchester Area of Application. Survey area plus: New Jersey: Burlington (Joint Base McGuire-Dix-Lakehurst portion only) Hunterdon Monmouth Ocean Sussex New York: Dutchess Putnam Richmond Rockland Pennsylvania: Pike *    *    *    *    * PENNSYLVANIA *    *    *    *    * Philadelphia Survey Area New Jersey: Burlington (Excluding the Joint Base McGuire-Dix-Lakehurst portion) Camden Gloucester Pennsylvania: Bucks Chester Delaware Montgomery Philadelphia Area of Application. Survey area plus: New Jersey: Atlantic Cape May Cumberland Mercer Warren Pennsylvania: Carbon Lehigh Northampton *    *    *    *    *
    [FR Doc. 2016-17029 Filed 7-19-16; 8:45 am] BILLING CODE 6325-39-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 372 [Docket No. APHIS-2013-0049] RIN 0579-AC60 National Environmental Policy Act Implementing Procedures AGENCY:

    Animal and Plant Health Inspection Service, USDA

    ACTION:

    Proposed rule.

    SUMMARY:

    We are proposing to amend the regulations that set out our National Environmental Policy Act implementing procedures. The amendments include clarifying and amending the categories of action for which we would normally complete an environmental impact statement or an environmental assessment for an action, expanding the list of actions subject to categorical exclusion from further environmental documentation, and setting out an environmental documentation process that could be used in emergencies. The proposed changes are intended to update the regulations and improve their clarity and effectiveness.

    DATES:

    We will consider all comments that we receive on or before September 19, 2016.

    ADDRESSES:

    You may submit comments by either of the following methods:

    • Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0049.

    • Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2013-0049, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0049 or in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Elizabeth E. Nelson, APHIS Federal NEPA Contact, Environmental and Risk Analysis Services, PPD, APHIS, 4700 River Road Unit 149, Riverdale, MD 20737-1238; (301) 851-3089.

    SUPPLEMENTARY INFORMATION: Background

    The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), is the United States' basic charter for protection of the environment. The President's Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of the NEPA, published in 40 CFR parts 1500 through 1508 (referred to below as the CEQ regulations) regulate the implementation of NEPA across Federal agencies.

    The Office of the Secretary of the U.S. Department of Agriculture (USDA) has set forth departmental policy on the implementation of NEPA in 7 CFR part 1b. Within USDA, the Animal and Plant Health Inspection Service (APHIS) has regulations that set out its procedures for implementing NEPA in 7 CFR part 372 (referred to below as the regulations). APHIS' regulations are designed to ensure early and appropriate consideration of potential environmental effects when APHIS programs formulate policy and make decisions. The regulations also promote effective and efficient compliance with NEPA requirements and integration of other environmental review requirements under NEPA (e.g., 40 CFR 1500.2(c) and 40 CFR 1500.4(k)). Consistent with the requirements of the CEQ NEPA implementing regulations, the APHIS regulations supplement the CEQ regulations and the USDA NEPA implementing regulations to take into account APHIS missions, authorities, and decision-making. The APHIS regulations include definitions, categories of actions, major planning and decision points, opportunities for public involvement, and methods of processing different types of environmental documents.

    The APHIS regulations were last amended in a final rule published in the Federal Register on February 1, 1995 (60 FR 6000-6005, Docket No. 93-165-3; corrected on March 10, 1995, at 60 FR 13212). The CEQ regulations at 40 CFR 1507.3(a) indicate that agencies “shall continue to review their policies and procedures and in consultation with the Council to revise them as necessary to ensure full compliance with the purposes and provisions of the Act.” Since 1995, APHIS has begun several new types of actions (e.g., the Plant Protection Act of 2000) that are not covered in the current regulations, and gathered further data on the environmental impacts of those actions that are covered in the regulations. Accordingly, we have evaluated our regulations and identified changes that would reflect those new authorities, activities, and data. The changes we are proposing would also clarify certain areas of the regulations. APHIS has been and is consulting with CEQ regarding these changes, as required. In addition to reflecting APHIS' current responsibilities, the changes we are proposing reflect CEQ NEPA guidance that has been issued since the APHIS regulations were last amended. This guidance describes how Federal agencies can establish, revise, substantiate, and apply categorical exclusions, and how agencies can periodically review categorical exclusions to assure that they remain useful.1

    1 You may view the CEQ guidance document on the Internet at https://ceq.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.

    NEPA and the CEQ regulations require all agencies of the Federal Government to include a detailed statement by the responsible official with every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. This statement must cover:

    • The environmental impact of the proposed action,

    • Any adverse environmental effects which cannot be avoided should the proposal be implemented,

    • Reasonable alternatives to the proposed action,

    • The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

    • Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

    Such a detailed environmental statement is defined in the CEQ regulations as an environmental impact statement (EIS). The EIS is distinguished from the environmental assessment (EA), which is a concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact (FONSI). Actions taken by an agency that do not individually or cumulatively have a significant effect on the human environment, may be categorically excluded from the requirement to prepare either an EA or an EIS.

    Proposed Reorganization

    The CEQ regulations at 40 CFR 1507.3(b)(2) require agencies to develop specific criteria for and identification of those typical classes of action that normally require an EIS or an EA, as well as those that normally do not require further analysis in either an EIS or an EA and are thus categorically excludable actions. APHIS' regulations accomplishing this are currently found in § 372.5, “Classification of actions.”

    Since the last time the regulations were updated in 1995, APHIS has determined that many additional categories of APHIS actions can and should be categorically excluded. In addition, we are proposing to provide examples for broad categories of actions that would be categorically excluded and to further explain the process for using those categorical exclusions. For ease of reading, therefore, we are proposing to differentiate the categorical exclusions currently found in § 372.5 into new sections. These new sections would be numbered §§ 372.8 through 372.10 with 372.5 addressing environmental impact statements, 372.6 addressing environmental assessments, 372.7 addressing categorical exclusions in general, and 372.8 through 372.10 describing categorical exclusions. Consequently, current sections §§ 372.6 through 372.10 would be redesignated. The proposed sections are listed in Table 1, along with the paragraph in current § 372.5 to which they correspond.2

    2 A detailed accounting of the rationale for each of the proposed changes may be found in the document entitled “Proposed Amendments to National Environmental Policy Act Implementing Procedures (7 CFR part 372), Substantiating Document for Proposed Amendments,” which is available on the Internet at http://www.regulations.gov/#!docketDetail;D=APHIS-2013-0049.

    Table 1—Current and Proposed Organization of Categories of Actions in APHIS' NEPA Regulations Proposed section Title Current paragraph(s)
  • in § 372.5
  • 372.5 Actions normally requiring environmental impact statements (a). 372.6 Actions normally requiring environmental assessments but not necessarily environmental impact statements (b). 372.7 Categorical exclusions; general provisions Introductory text of (c) and (d), (d)(1). 372.8 Categorical exclusions; conventional measures (c)(1). 372.9 Categorical exclusions; licensing, permitting, and authorization or approval (c)(3). 372.10 Categorical exclusions; other categories of actions (c)(2), (c)(4).
    Actions Normally Requiring Environmental Impact Statements

    The introductory text of paragraph (a) of current § 372.5 sets out a description of actions APHIS takes that normally require environmental impact statements.

    We are proposing to make several changes to the introductory text. First, we are proposing to refer to a category of actions rather than a class of actions. This change would be consistent with the CEQ regulations that use the phrase “category of actions.” We would make this change in the rest of our regulations as well.

    Second, rather than referring to policymakings and rulemakings, we are proposing to simply refer to “actions.” APHIS takes actions that are not policymakings or rulemakings but which could nevertheless have a significant impact on the human environment and thus warrant an EIS. For example, APHIS' Wildlife Services (WS) program prepared an EIS for gull hazard management actions at John F. Kennedy International Airport. These actions were not part of a policymaking or a rulemaking.

    We also are proposing to modify the regulations to add several types of EIS eligible actions. The current text indicates that risks to animal and plant health are the only reasons APHIS takes action. However, APHIS takes other types of actions, including those that protect or preserve property, natural resources, and human health and safety. For example, under the Plant Protection Act (7 U.S.C. 7701 et seq.), APHIS may designate a plant as a noxious weed based on the damage it causes to irrigation, navigation, the natural resources of the United States, the public health, or the environment, and may take action to address the weed's harmful effects. APHIS' Wildlife Services program also undertakes actions to manage wildlife damage in order to promote or protect human health and safety, such as actions to mitigate against the risk of bird strikes on airplanes or rabies in wildlife. We would add these actions to the regulations.

    The current text states that actions in this category are characterized by their broad scope and potential effect. We are proposing to qualify this statement by indicating that these characteristics typically characterize actions in this category. Sometimes, APHIS takes actions that have a broad scope, but whose impacts on the environment are not significant. The program to reduce the spread of rabies in wildlife is one example of such an action. The action may have a broad scope, but we can easily determine and characterize the likely potential effects as not significant.

    We are proposing to provide more detail on what we mean by potential effects on the human environment. We would specify that, for the purposes of determining whether an action warrants an EIS, we are interested in the intensity of the potential effects, which refers to the severity of impact and is defined in 40 CFR 1508.27(b) where the regulations state that the following 10 factors should be considered in evaluating intensity: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial; (2) The degree to which the proposed action affects public health or safety; (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas; (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial; (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks; (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration; (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts; (8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources; (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973; and (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. Instead of referring to environmental quality values, we would refer to environmental components, and give the examples of air, water, soil, plant communities, and animal populations. This change would add clarity to the regulations, as “environmental quality values” has proven to cause confusion. It would also increase transparency regarding those environmental elements we consider when writing an EIS. We would also provide an example of an indicator, including, but not limited to the dissolved oxygen content of water. These would help the reader to understand the types of effects we consider to determine when to prepare an EIS.

    We would remove the sentence that states that the use of new or untried methodologies, strategies, or techniques to deal with pervasive threats to animal and plant health would lead us to complete an EIS. The fact that a method is novel does not by itself mean its use will have significant environmental impacts warranting an EIS. For example, APHIS may develop a new method that involves noninvasive procedures or whose potential impacts, either positive or negative, are well understood. Neither of these actions would necessarily warrant an EIS.

    We would also remove the sentence stating that, for actions that warrant an EIS, alternative means of dealing with a threat to animal and plant health usually have not been well developed. The presence or absence of alternatives by themselves does not determine the potential impacts an agency action would have on the human environment.

    Paragraph (a)(1) of § 372.5 currently lists “formulation of contingent response strategies to combat future widespread outbreaks of animal and plant diseases” as an action that might normally requires an EIS. This category of actions is still appropriate, and we would retain it. Paragraph (a)(2) of § 372.5 would be slightly modified to read as follows: “Adoption of strategic or other long-range plans that prescribe a preferred course of action for future actions implementing the plan.” This modification more fully captures our intent that both the overarching strategic or long-range plan itself and actions taken to implement that plan should be considered in an EIS.

    The current categories of action that normally require an EIS would be found in paragraphs (a) and (b) of proposed § 372.5.

    Actions Normally Requiring Environmental Assessments But Not Necessarily Environmental Impact Statements

    The introductory text of paragraph (b) of current § 372.5 sets out a description of actions APHIS takes that normally require environmental assessments but not necessarily environmental impact statements. We are proposing to make this text the introductory text of a new § 372.6 and to make several changes to it.

    The current text explains that “limited scope” means actions involving particular sites, species, or activities. We would expand this explanation to add State-wide or district-wide programs. We have found that agency actions of this scope can typically be adequately assessed in an EA. We would also indicate that activities may involve a specific species or similar species. We have found that impacts associated with actions involving multiple, similar species are not significantly different than actions involving a particular species.

    We would expand the current discussion of potential effects. To contrast with our proposed text regarding actions that normally require an EIS, we would state that any effects of the action on environmental resources (such as air, water, soil, plant communities, animal populations, or others) or indicators (such as dissolved oxygen content of water) can be reasonably identified, and mitigation measures are generally available and have previously been successful. Again, the intensity and likelihood of the potential effects are our primary concern.

    We would remove the sentences discussing the novelty of methodologies, strategies, and techniques used to deal with issues and the alternative means of dealing with those issues, for the same reasons we would remove them in our discussion of the actions that normally require an EIS.

    Finally, the regulations currently list several categories of actions as actions that normally require an EA but not necessarily an EIS. However, within those general categories, there are several specific categories of action that we have determined should be subject to categorical exclusions.

    In current § 372.5, paragraphs (b)(1) through (b)(5) list specific categories of actions that normally require an EA but not necessarily an EIS. Along with our proposed move of these categories to § 372.6, we are proposing to remove one category, amend two of the other current categories, and add two new categories.

    Current paragraph (b)(1) lists policymakings and rulemakings that seek to remedy specific animal and plant health risks or that may affect opportunities on the part of the public to influence agency environmental planning and decisionmaking as actions that would normally require an EA. We would move this category to paragraph (a) in proposed § 372.6 and add the word “actions” to “policymakings and rulemakings.” This change would ensure that the regulations reflect the broad range of activities for which APHIS prepares environmental compliance documentation.

    Paragraph (b)(2) of § 372.5 lists planning, design, construction, or acquisition of new facilities, or proposals for modifications to existing facilities as actions that would normally require an EA. We would move it to paragraph (b) of proposed § 372.6, but would otherwise leave it unchanged apart from specifying that the substantial modifications to existing facilities under discussion are also included.

    Paragraph (b)(3) of § 372.5 lists the disposition of waste and other hazardous toxic materials at laboratories and other APHIS facilities, except when categorically excluded, as normally requiring an EA. We would move it to paragraph (c) of proposed § 372.6, but would otherwise leave it unchanged.

    Paragraph (b)(4) of current § 372.5 lists approvals and issuance of permits for proposals involving genetically engineered or nonindigenous species, except for actions that are categorically excluded, as normally requiring an EA but not necessarily an EIS. We are proposing to amend this category of action to include issuance of licenses, as well as permits, to reflect the terminology used by APHIS animal health and biotechnology programs as well as to specify that we are referring only to regulated genetically engineered or nonindigenous species. We would also move this category of action to paragraph (d) of proposed § 372.6.

    We are proposing to add a new category of actions as paragraph (e) of proposed § 372.6. This paragraph would indicate that programs to reduce damage or harm by a specific wildlife species or group of species (such as deer or birds), or to reduce a specific type of damage or harm, such as protection of agriculture from wildlife depredation and disease, management of rabies in wildlife, or protection of threatened or endangered species, normally require an EA but not necessarily an EIS. Such programs are managed by APHIS' WS program. Since 1994, WS has prepared and worked under hundreds of EAs for these types of program activities. WS' EAs for program activities include review of potential environmental impacts on target species, nontarget species including threatened and endangered species, aesthetic values, and any additional issues identified through the NEPA process. WS monitors impacts of actions taken under these EAs to ensure that the EAs' analyses continue to adequately evaluate program goals, actions, and impacts. In no instance have WS' monitoring evaluations indicated that WS' actions under these types of EAs had impacts warranting preparation of an EIS.3 For these reasons, we believe it is appropriate to establish this category of actions as requiring an EA but not necessarily an EIS.

    3 For a current list and examples of active WS EAs, see http://www.aphis.usda.gov/regulations/ws/ws_nepa_environmental_documents.shtml.

    Paragraph (b)(5) of § 372.5 currently lists two examples of research and testing actions that normally require an EA: Research and testing that will be conducted outside of a laboratory or other containment area, and research and testing that reaches a stage of development (e.g., formulation of premarketing strategies) that forecasts an irretrievable commitment to the resulting products or technology. We are proposing to retain this category of action, as paragraph (f) of proposed § 372.6.

    We would add a new category of action as paragraph (g): Determination of nonregulated status for genetically engineered organisms. Under current paragraph (b)(4) of § 372.5, APHIS has been preparing EAs when it determines a genetically engineered organism is not a plant pest risk and does not present significant environmental impacts. However, determining that a genetically engineered organism should not be regulated is not an action that fits within the category of an approval or an issuance of a permit or license; such actions are addressed in the corresponding proposed paragraph (d) of § 372.6. Adding this example as a separate paragraph would provide transparency and clarification about how APHIS addresses potential environmental impacts associated with actions on petitions for nonregulated status of genetically engineered organisms as described in 7 CFR 340.6. The significance factors listed in 40 CFR 1508.27 are considered when determining the appropriate environmental documentation for these actions, and our NEPA analyses have repeatedly demonstrated that the level of potential environmental impact is usually not significant, making an EA appropriate for such actions unless the significance factors listed in 40 CFR 1508.27 apply.4

    4 You may view specific examples on the Internet at https://www.aphis.usda.gov/myportal/aphis/resources/lawsandregs/SA_Environmental_Protection/SA_Statutes/SupplementalNEPAAmendments.

    Categorical Exclusions; General Provisions

    The bulk of the changes we are proposing to the regulations relate to categorical exclusions. When experience and monitoring indicate that an action or a type of action does not have a significant or substantial impact on the human environment, establishing a categorical exclusion for that action benefits both APHIS and the public. Most actions APHIS takes are designed to prevent damage or harm to animals, plants, and human enterprises related to those animals and plants. Making these actions subject to a categorical exclusion, when appropriate, in accordance with criteria in §§ 372.7 through 372.10, benefits the human environment by allowing APHIS to take action to prevent or reduce the damage or harm more quickly than would be possible if the agency had to complete an EA or EIS for the action.

    Paragraph (a) of proposed § 372.7 would set out general provisions for APHIS' use of categorical exclusions. Currently, these provisions are found in the introductory text of paragraph (c) of § 372.5. We would make two changes to the current provisions. First, the introductory text of this paragraph currently states that categorically excluded actions are similar to actions that normally require an EA but not necessarily an EIS in terms of their extent of program involvement and the scope and effect of and availability of alternatives to proposed actions. Because we are proposing to remove the text dealing with alternatives from the EIS and EA sections, we are proposing to remove it here as well.

    In addition, paragraph (c) of § 372.5 currently states that the major difference between categorically excluded actions and actions that require an EA, but not necessarily an EIS, is that for categorically excluded actions, the means through which adverse environmental impacts may be avoided or minimized have actually been built into the actions themselves. The paragraph goes on to state that the efficacy of this approach generally has been established through testing and/or monitoring.

    We are proposing to indicate that mitigation measures alone are not the sole key factor. Rather, there are several key factors that we should consider when determining whether a category of actions is categorically excluded, which are (1) the extent to which mitigation measures to avoid or minimize adverse environmental impacts have been built into the actions themselves and, in some cases, standard operating procedures; (2) Agency expertise and experience implementing the actions; and (3) whether testing or monitoring have demonstrated there normally is no potential for significant environmental impacts.

    We would also add evaluation criteria which must be met prior to any determination of categorical exclusion. These would be found in new paragraphs 372.7(a)(1)(i) through (a)(1)(iii). The first evaluation criterion is to determine whether the action has not been segmented in order to meet the definition of a categorical exclusion. Segmentation may occur when an action is intentionally broken down into component parts in order to avoid the appearance of significance of the total action. The second evaluation criterion would be to determine whether any extraordinary circumstances exist that would require us to preclude the use of a categorical exclusion. An example of an extraordinary circumstance would be when a proposed action that is normally categorically excluded may have the potential for significant adverse environmental impacts to nontarget species. The third evaluation criterion would be whether the action occurs in a limited area, does not permanently adversely affect the area, and is performed with well-established procedures (e.g., permits for GE organism field testing under specified conditions).

    These changes would emphasize that actions we take do not individually or cumulatively have a significant effect on the environment, as demonstrated through long-term application or testing and monitoring, without the need to build in means to avoid or minimize environmental impacts. Many examples of such actions will be discussed later in this document.

    Paragraph (d) of current § 372.5 discusses exceptions for categorically excluded actions and lists examples of such exceptions. As part of our reorganization of the list of actions subject to categorical exclusions, we are proposing to list common exceptions to categorical exclusions next to the categorical exclusions themselves in the regulatory text. We hope that this change would highlight the potential exceptions for users of the regulations. We are proposing to refer to such exceptions as “extraordinary circumstances,” consistent with CEQ's instructions in the definition of “categorical exclusion” in 40 CFR 1508.4 to provide for “extraordinary circumstances in which a normally excluded action may have a significant environmental effect.” (In § 372.4, which contains definitions of various terms used in the APHIS NEPA implementing regulations, we would add a definition of extraordinary circumstances, which would be consistent with the CEQ regulations.)

    We would retain the introductory text of paragraph (d) of current § 372.5 as paragraph (b) of proposed § 372.7. It would continue to indicate that, whenever the Agency official responsible for environmental review determines that a categorically excluded action may have the potential to significantly affect the quality of the human environment, an EA or an EIS will be prepared. (In § 372.4, which contains definitions of various terms used in the APHIS NEPA implementing regulations, we would add a definition of Agency official responsible for environmental review, which would be consistent with the CEQ regulations.)

    We are also proposing to add a new paragraph § 372.7(c), which would describe the extraordinary circumstances for individual categorically excluded actions that would preclude the use of a categorical exclusion. A list of specific extraordinary circumstances for these actions would be provided in paragraphs (c)(1) through (c)(17).

    Please note that the following sections include examples of activities that we expect would result in categorical exclusions. These lists are not intended to be comprehensive accounts of all possible categorical exclusions. Any activity not listed would still have to meet the requirements for a categorical exclusion.

    Categorical Exclusions; Conventional Measures

    Paragraph (c)(1) of § 372.5 currently lists various categorically excluded actions under the heading of “routine measures.” We are proposing to list such measures, and explanations and examples of such measures, in a new § 372.8.

    As described in current paragraph (c)(1), routine measures include identifications, inspections, surveys, sampling that does not cause physical alteration of the environment, testing, seizures, quarantines, removals, sanitizing, inoculations, control, and monitoring employed by agency programs to pursue their missions and functions. The designation of these measures as “routine” has caused some uncertainty among agency personnel and the public. Certain actions that APHIS performs on a regular basis may nonetheless require us to prepare an EA or EIS each time we perform them, depending on the potential for the actions to significantly affect the human environment. What the current regulations describe is an action that occurs in a limited area, does not permanently adversely affect the area, and is performed in accordance with well-established procedures. We believe that a better description for such measures is “conventional.” Therefore, we are proposing to refer to such measures as conventional measures both in our proposed description of general extraordinary circumstances for conventional measures in proposed § 372.7(c) and in proposed § 372.8.

    We are proposing to change the current list of conventional measures slightly. The current list includes sampling that does not cause physical alteration of the environment. We are proposing to instead refer to monitoring, including surveys and surveillance, that does not cause physical alteration of the environment. This terminology is more commonly used within and outside APHIS to describe these activities, which will be discussed in more detail later in this document.

    Paragraph (c)(1) of current § 372.5 goes on to describe the appropriate use of chemicals and other products as part of routine measures. Specifically, it states that such measures may include the use—according to any label instructions or other lawful requirements and consistent with standard, published program practices and precautions—of chemicals, pesticides, or other potentially hazardous or harmful substances, materials, and target-specific devices or remedies, provided that such use meets certain criteria.

    In paragraph (a) of proposed § 372.8, we are proposing to expand the list of substances that may be used as part of a conventional measure, subject to certain conditions, to include the use of pesticides, chemicals, drugs, pheromones, contraceptives, or other potentially harmful substances, materials, and target-specific devices or remedies.

    APHIS uses contraceptives, such as GonaCon, to manage populations of animals and mitigate their impacts on the environment and natural resources. APHIS uses drugs, such as the nonlethal sedative alpha chloralose, to temporarily immobilize animals for relocation or other management. Previous APHIS NEPA evaluations concluded that normal use patterns of both contraceptives and drugs do not individually or cumulatively have a significant effect on the human environment based on the limited duration and scope of their use and the design of the contraceptives and drugs, which limit effects on nontarget species.

    APHIS uses pheromones to control plant pests; the pheromones mask the chemical scent of the target organism, making it difficult for the organism to find mates and reproduce. As long as pheromones are used in accordance with Environmental Protection Agency (EPA) labeling requirements, we have found that they do not individually or cumulatively have a significant effect on the human environment. In practice, we expect pheromones to have substantially less potential for adverse impacts than other chemical controls, given that they are highly species-specific and have extremely low toxicity to people and organisms (including target and nontarget organisms).

    The introductory text of current § 372.5(c)(1) indicates that potentially harmful substances must be used according to any label instructions or other lawful requirements and consistent with standard, published program practices and precautions. We would retain this language in proposed § 372.8(a).

    Paragraphs (c)(1)(ii)(A) through (c)(1)(ii)(C) of current § 372.5 contain three examples of routine measures. To assure clarity, we are proposing to explain in proposed § 372.8 every conventional measure listed in the introductory text and to provide examples of each conventional measure. These explanations and examples can be found in paragraphs (b) through (l) of proposed § 372.8. The proposed lists of examples are intended to illustrate each of the conventional measures, not to be exhaustive. The proposed conventional measures and their explanations and examples are discussed below.

    Identifications. Identifications would include detection and identification of premises or animals, or identification of organisms, diseases, or species causing damage or harm. These processes in and of themselves do not have any significant impacts on the human environment. Examples would include, but would not be limited to: Issuance of a specific identification number and application of commodity labels, animal tags, radio transmitters, microchips, and chemicals (such as tetracycline or rhodamine B ingestion).

    Inspections. Inspections would include inspections of articles (including fruits and vegetables) to determine if there are any plant pests present, which could involve cutting fruit for inspection; the physical inspection of animals upon entry into the United States; facility and records inspections; or inspections of commodities, facilities, or fields, including paperwork and records, for approval and to assure compliance with regulations and program standards. Inspections usually follow a prescribed protocol and document findings on an inspection report form. Examples would include, but would not be limited to, the physical examination of plants, plant products, and animals at the port of entry; review of containment facilities; and review of paperwork and records to assure compliance with program regulations and standards.

    Inspection methods typically rely on visual observation or destruction of a small number of subsamples (for example, cutting of fruit to detect larvae) and do not individually or cumulatively have a significant effect on the human environment. Inspection of animals usually involves restraint, which is performed following established animal care and animal welfare guidelines. Inspection may also involve visual inspection of facilities, such as inspection of facilities holding animals covered under the Animal Welfare Act to verify that the animals are being held in compliance with the regulations promulgated under that act, inspection of packinghouses to verify compliance with plant health regulations, or inspections of facilities performing animal health work. These activities are not expected to have any impact on the human environment, and years of data have indicated that they do not.

    Monitoring, including surveys, surveillance, and trapping, that does not cause physical alteration of the environment. Surveys would include questionnaires to collect information and data to assess a current state or trend in activities, to determine compliance, or to determine whether a pest or disease exists in a specific area. Surveys are administrative processes only and thus do not individually or cumulatively have a significant effect on the human environment.

    Surveillance would include activities to collect test samples from part or all of the target population using routine collection techniques. Monitoring and surveillance generally involves limited numbers of animals (relative to State and regional populations) and a limited area. If warranted, inspection may involve the collection of a biological sample for submission to a laboratory for diagnostic testing. The quantity of any biologic samples collected is negligible (for example, 2 to 5 milliliters of blood, a punch biopsy, or a swab). Monitoring chemical residue involves the collection of small samples of environmental components (for example, water, leaves, or soil) to test for the presence of a chemical. Sample collection occurs at limited locations and times. These are standard practices used by scientists daily with no impact to the environment being sampled or to people.

    Trapping would be described as the use of capture devices that are designed to efficiently capture, restrain, or kill targeted individual animals or a group of animals (e.g., fruit flies and other insects, a raccoon, a sounder of feral swine). Capture devices used in trapping would be described as foothold; cage; drive; quick-kill; pit (for insects and some small rodents, reptiles and amphibians); insect and sticky traps; snares and other cable restraints; nets; hands; contained animal drugs (e.g., dart guns, tranquilizer tab devices); and insecticides. Attractants used with some types of trapping are food, odor baits or lures, pheromones, shapes, and colors. Only organisms that become caught in the trap are affected. While some nontarget captures may be inevitable, the design of the traps minimizes this effect. Nevertheless, the capture of even a small number of federally listed threatened or endangered species is of concern. To address such captures, APHIS would conduct an Endangered Species Act (ESA) analysis. If the ESA analysis and other NEPA reviews indicate that the viability of a nontarget species population could be affected, we would prepare an EA for trapping.

    Examples of these activities would include, but would not be limited to:

    • Collection of biological or environmental samples such as tissue, soil, or water samples and samples of fecal matter.

    • Continual checking, by testing, trapping, or observing for the presence, absence, or prevalence of animals, pests, or disease. This information may be used to support a pest or disease status (such as pest-free or disease-free status).

    • Surveying and monitoring for disease may or may not require the lethal removal of the animal and can often be conducted using nonlethal methods, such as collection of samples from animals killed or removed for reason related to disease monitoring (i.e., damage management action addressed in an EA, or hunter-killed animals).

    • Randomly selecting animals and obtaining blood samples to survey for disease, or collection of test samples.

    Testing. Testing would be described as the examination or analysis of a collected sample. This activity often occurs in a laboratory, but also includes nonlethal tests that require animal-side or chute-side injection and observation in the field. Testing may require the use of specialized equipment and/or diagnostic test kits. APHIS programs conduct testing using standard operating procedures that are designed to eliminate the potential for harmful environmental effects, and years of monitoring have indicated that testing itself does not have any effect on the human environment. Examples would include, but would not be limited to, intradermal tuberculosis testing of livestock and germplasm testing of plant material for viral infections.

    Seizures. Seizures would include taking possession of conveyances, materials, regulated articles, plants and plant products, animals and animal products, other articles infested with a pest or determined to be diseased or exposed to a disease, a regulated article that is mixed in a commodity, or contaminated shipping material. APHIS programs seize articles to prevent the importation or interstate movement of articles that could introduce or spread pests or diseases, or to prevent the movement of articles whose movement is not authorized because its risk has not been determined. The act of seizing an article simply results in a change of the entity with control of the article and, in itself, has no significant impacts on the environment. Examples of seizures would include, but would not be limited to:

    • Confiscation of a commodity that could be a vector for a plant or animal disease or pest, or an animal or plant determined to be infested, infected, exposed, or not in compliance with APHIS regulations (such as one moved illegally or without proper paperwork).

    • Seizure of a nonregulated commodity, seed, or propagative material containing regulated genetically engineered material.

    Quarantines. Quarantines would be described as actions to restrict or prohibit movement from an area, including the creation, expansion, removal, or modification of quarantines. Stopping or otherwise restricting the movement of animals, plants, or other regulated articles has no impact on human health or the environment and therefore falls within the definition of “categorical exclusion” in 40 CFR 1508.4.

    The proposed regulations would state that the establishment of a quarantine can include mitigations to allow for movement of animals or commodities while preventing the spread of the animal or plant pest or disease; for example, we may require chemical treatment of regulated articles that are moved from the quarantined area to ensure that the articles do not spread a pest. Such mitigations would be evaluated separately from the establishment of the quarantine itself, which would be covered by this categorical exclusion.

    Examples of quarantines are:

    • Quarantine of an area in which a pest or disease is known to occur to prevent movement of animals, plants, or other articles whose movement could spread the pest or disease.

    • Changes in pest or disease status for an area or country, such as expansion or rescission of existing quarantines.

    • Removal of quarantine restrictions when APHIS determines that it is appropriate to do so.

    Removals. Removals would include the relocation or lethal removal of living organisms, or destruction of materials. Only when the magnitude and scope of the removal is limited would a removal qualify as a categorical exclusion, among other things. In such circumstances, removals do not individually or cumulatively have a significant impact on the human environment. (As noted earlier, an EA or EIS would be prepared when any conventional measure, the incremental impact of which, when added to other past, present, and reasonably foreseeable future actions, has the potential for significant environmental impact.)

    Some of the examples for removals would indicate the specific circumstances in which a removal would qualify for a categorical exclusion. In addition, a few of the proposed examples of removals have extraordinary circumstances in which they would not be eligible for a categorical exclusion.

    Examples of removals that qualify for a categorical exclusion would include, but would not be limited to:

    • Removal of animals in accordance with permits and agreements from the appropriate management agencies, or otherwise in accordance with regulations governing management of a species, for the purpose of approved research studies, surveillance and monitoring, or disease or damage management, or due to pest concerns. Such movement is typically for quarantine or testing purposes. Most confirmed cases of disease involve a very limited number of animals; therefore, the impact to the total population is negligible, especially in comparison to the potential number of animals that could be affected if the diseased animals are not removed.

    • Removal of animals or material from premeses.

    • Removal of trees or shrubs and plants.

    • Disposal or destruction of materials for which the Agency has regulatory authority due to, for example, completion of acknowledged or permitted activities, completion of regulated activities, or noncompliance and disposal of animals. This could include disposal of regulated articles (fruit, meat, regulated genetically engineered organisms, etc.) at ports of entry designated by U.S. Customs and Border Protection. Approved methods of disposal would range from burial, feeding to animals, composting, to co-burning for power generation. These removals would be considered on a case-by-case basis and only when they are standalone actions, not tied to additional control activities on a larger scale.

    • Routine disposal of carcasses using other approved methods, such as donation for human consumption, composting, chemical digestion, burial, and incineration. Carcass and waste material disposal is conducted in appropriately licensed and approved facilities, or in accordance with appropriate Federal, State and local restrictions and regulations, so any impact to human health, animal health, or the environment has been mitigated.

    • Depopulation of domestic livestock and captive wildlife due to the presence of an animal disease or the reasonable suspicion of the presence of an animal disease. An extraordinary circumstance would apply, and we would prepare an EIS, if an outbreak of an animal disease would require the depopulation of a large number of animals potentially resulting in substantial or significant adverse impacts on the human environment.

    Sanitizing, cleaning, and disinfection. This category of actions would include treatment of an infested commodity (such as fruits or vegetables), cleaning and disinfection that occurs when a disease is found or there is an emergency disease outbreak, treatment of a regulated article, or treatment of carcasses for disposal. Any treatment or cleaning and disinfection that uses chemicals, pesticides, or other products would have to be conducted in accordance with the criteria for the use of such substances at the beginning of proposed § 372.8 in order to be eligible for a categorical exclusion. Since such products are used in accordance with applicable label instructions, there should be no significant impact on the human environment. Nonchemical treatments, such as cold treatment or hot water dip treatment, are conducted in enclosed, temperature-controlled environments that do not affect the natural environment. Examples of sanitizing, cleaning, and disinfection would include, but would not be limited to:

    • Treatment of regulated articles at existing facilities, such as irradiation treatment and methyl bromide special use treatment. For example, irradiation treatment is conducted in approved facilities that must be approved by other Federal and State agencies as sufficiently isolated from the surrounding environment that the use of irradiation does not have a significant impact.

    • Treatment of a facility, container, or cargo hold at the port of entry to mitigate pest threats.

    • Cleaning and disinfection of equipment, cages, facilities, or premises.

    • Treatment of animal carcasses, using methods such as incineration, alkaline digestion, or rendering as a method to devitalize infectious material.

    Inoculations. An inoculation would be described as the introduction of a pathogen or antigen into a living organism in order to invoke an immune response to treat or prevent a disease. Inoculations are administered to individual identifiable organisms at limited locations and times to produce internal immune responses. The limited scope and timespan of inoculations means that they do not individually or cumulatively have a significant effect on the human environment. Examples are:

    • Inoculation or treatment of discrete herds of livestock or wildlife undertaken in contained areas (such as a barn or corral, a zoo, an exhibition, or an aviary).

    • Use of vaccinations or inoculations, including new vaccines (including genetically engineered vaccines) and applications of existing vaccines to new species provided that the project is conducted in a controlled and limited manner, and the impacts of the vaccine can be predicted. An extraordinary circumstance would apply if a previously licensed or approved biologic has been subsequently shown to be unsafe, or will be used at substantially higher dosage levels or for substantially different applications or circumstances than in the use for which the product was previously approved. (This extraordinary circumstance comes from current paragraph (d)(2) of § 372.5.)

    Animal handling and management. This would include nonlethal methods not addressed elsewhere in part 372 that are used to prevent, monitor for, reduce, or stop disease, damage, or harm caused by animals. (Some animal handling and management methods, such as removal and testing, are addressed earlier in proposed § 372.8.) APHIS' WS program has conducted many EAs examining the use of nonlethal animal handling and management methods in the context of State-wide programs. These EAs concluded that such methods have no significant impact on the human environment and resulted in FONSIs. Similarly, APHIS' Veterinary Services (VS) program may require livestock producers within quarantined areas to use generally accepted biosecurity practices as part of a disease control or eradication program. As these practices are designed to prevent the spread of animal disease, and as they are conducted in accordance with applicable Federal, State, and local regulations, they do not have a significant impact, as demonstrated by the findings of VS's EAs and FONSIs. Examples of animal handling methods included in this categorical exclusion include, but are not limited to:

    • Restraining or handling livestock, poultry, or wildlife to facilitate examination or other activities.

    • Cultural methods and basic habitat management such as nonlethal management activities such as removal of food sources, modification of planting systems, modification of animal husbandry practices, water control devices for beaver dams, limited beaver dam removal, and pruning trees.

    • Site-specific applications of nonlethal wildlife damage management practices such as frightening devices, exclusion, capture and release, and capture and relocation.

    Recordkeeping and labeling. This categorical exclusion would cover requiring regulated parties to keep records demonstrating compliance with APHIS requirements or to label regulated articles to indicate compliance or set out restrictions on the movement of the article. Recordkeeping and labeling are used as part of other measures or programs to ensure documentation of events in compliance with the regulations and other requirements. Recordkeeping and labeling thus facilitate compliance and enforcement. Such activities involve paperwork only and thus are not expected to have an impact on the human environment. Examples include, but are not limited to requiring regulated parties to:

    • Maintain records documenting the results of trapping for insects.

    • Maintain records of the application of treatments.

    • Prepare labels indicating that the movement of a regulated article to certain areas within the United States is illegal.

    • Retain records at approved livestock facilities and listed slaughtering or rendering establishments under 9 CFR part 71.

    Categorical Exclusions; Licensing, Permitting, Authorization, and Approval

    Paragraph (c)(3) of § 372.5 currently lists various categorically excluded actions under the heading of “licensing and permitting.” We are proposing to list such actions, expanded to include authorizations and approvals as well as licensing and permitting, in a new § 372.9.

    The introductory text of proposed § 372.9 would indicate that licensing and permitting refers to the issuance of a license, permit, or authorization to entities, including individuals, manufacturers, distributors, agencies, organizations, or universities for field testing, environmental release, or importation or movement of animals; plants; animal, plant, or veterinary biological products; or any other regulated article. Authorization and approval would be for an entity to participate in a program or perform an action.

    Generally, APHIS has put in place restrictions on the importation and interstate movement of many articles to prevent the introduction or dissemination within the United States of animal and plant pests and diseases. Decisions to allow the importation or interstate movement of such articles are made only after determining that any risk presented by the movement of the article has been adequately mitigated. Such actions therefore would not be expected to have a significant impact on the human environment.

    APHIS also licenses, authorizes, or approves entities to carry out activities to further their purposes or goals. Such licensing, authorization, or approval is done only when APHIS has determined that the entity will effectively fulfill its designated responsibilities. These actions are administrative for the agency, and generally occur in support of actions that undergo programmatic analysis in an EIS or EA. To require a separate NEPA analysis for each license, authorization, or approval would not allow expedient action to serve the public, and would promote piece-meal analyses. Even collectively, these licenses, authorizations, and approvals are not expected to individually or cumulatively have significant effect on the human environment because they are part of programs where mitigations reduce potential effects.

    We are proposing to list specific examples of these actions, organized by APHIS program area, in paragraphs (a) through (c) of proposed § 372.9. Paragraph (a) would set out examples of animal health-related actions. These are:

    • Approval of interstate movement or importation of animals via regulations or permits. APHIS' VS program approves such movement based on the requirements set forth in the Federal disease program regulations as reflected in the 9 CFR. Risk assessments provide the basis for determining the requirements. Examples of how VS issues approvals would include:

    ○ Use of permits to control the interstate movement of restricted animals, such as issuance of an official document or a State form allowing the movement of restricted animals to a particular destination.

    ○ Use of permits for entry, such as pre-movement authorization for entry of animals into a State from the State animal health official of the State of destination.

    ○ Approval of international movements through the use of import and export health certificates and import or export movement permits.

    ○ Authorization to move animals out of the quarantine or buffer zone for cattle fever ticks by documentation (a State form) that confirms the animals have been inspected and found to be tick-free.

    • Licensing of swine garbage feeding operations. This licensing occurs after a site visit finds and documents that all applicable requirements (9 CFR part 166—Swine Health Protection) have been met, ensuring that the operations will conduct this activity properly and thus will have no impact on the human environment.

    • Accreditation of private veterinarians. VS accredits veterinarians only if they are licensed and only after they complete an orientation, certify that they can complete certain tasks, and meet other requirements.

    • Approval and permitting of laboratories to conduct official tests. VS approves laboratories to conduct official tests only after a site visit verifies that the tests are being conducted, recorded, and reported properly. Proper testing procedures reduce the overall likelihood that an animal disease could have an impact on the human environment by ensuring correct and timely identification of disease threats.

    • Approval of identification manufacturers to produce identification, tests, and identification devices.

    • Listing of slaughter and rendering establishments for surveillance under 9 CFR 71.21. The regulations in 9 CFR 71.21 require listed establishments to allow personnel from APHIS and the USDA's Food Safety and Inspection Service to conduct surveillance at the establishments.

    • Approval of herd and premises plans that have environmental or waste management components. VS develops herd and premises plans in response to findings of disease in a herd or on a premises. The plans are designed to ensure that the herds remain disease-free and that animals can be safely introduced or reintroduced to the premises. Herd and premises plans may include cleaning and disinfection requirements. All cleaning and disinfection performed with cleaners and chemical disinfectants would need to be in compliance with our proposed requirements for the use of such substances as part of conventional measures, discussed earlier in this document. Herd and premises plans may also include environmental and waste management requirements to address the presence of disease, such as the removal of all manure, some removal of a certain depth of topsoil in a feedyard, spreading of lime on the soil to make the soil too basic for the organism to survive, or, as is often recommended, simply letting the pastures lay dormant (without livestock) and exposed to natural sunlight to assure elimination of the disease organism over time. For the reasons mentioned above, these practices are not expected individually or cumulatively to have a significant impact on the human environment.

    • Approval of herd accreditation for tuberculosis or certification for brucellosis to document the herd's freedom from disease. This is an administrative action that poses no adverse impacts to the environment.

    • Funding the depopulation of diseased herds, including indemnity and carcass disposal; authorization and funding of the collection and submission of tissue samples for testing. These are decisions that allow VS to undertake certain conventional measures described in proposed § 372.8, such as removals and implementation of biosecurity methods.

    • Approval of participation in the National Poultry Improvement Plan (the Plan) by issuance of a permanent approval number in accordance with 9 CFR 145.4. This is an administrative action taken after VS has determined that a flock owner is qualified to participate in the Plan.

    • Currently, paragraph (c)(3)(i) of § 372.5 sets out a categorical exclusion for the issuance of a license, permit, or authorization to ship for field testing previously unlicensed veterinary biological products. We are proposing to amend this categorical exclusion in several ways. First, we are proposing to separate authorization to ship for field testing from issuance of a license or permit. Typically, field testing must occur before a license or permit can be issued, assuming the veterinary biological product meets the requirements of the regulations. We would list these actions in two separate categorical exclusions. Second, we would expand these categorical exclusions to explicitly include previously unlicensed veterinary biological products containing genetically engineered organisms, such as vector-based vaccines and nucleic acid-based vaccines. Although such field testing could be considered to be included in the current categorical exclusion, VS' Center for Veterinary Biologics (CVB) has been completing EAs for such activities as a matter of policy, due to uncertainty about the environmental effects associated with the use of genetically engineered organisms. Accordingly, CVB has completed risk assessments and EAs for numerous vaccines containing genetically engineered organisms. The routine licensing requirements of CVB, which apply to these vaccines as well, ensure the vaccines' purity, identity, safety, potency, and efficacy. All of the EAs prepared for vaccines containing genetically engineered organisms have resulted in findings of no significant impact, and subsequent monitoring has not identified any impact these vaccines have had on the human environment. Accordingly, we believe it is appropriate to include these types of vaccines in the proposed categorical exclusions. The new categorical exclusions would read: “Authorization to ship and field test previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines)” and “Issuance of a license or permit for previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines).” Such categorical exclusions are based on field safety data and laboratory testing conducted since CVB's inception in 1976. In addition, just because an action qualifies for a categorical exclusion, it will be examined. In the unlikely event that there were a vaccine with GE organisms that were deemed likely to signifantly impact the human environment, the EA process would be initiated.

    • Current paragraph (d)(3) of § 372.5 provides an extraordinary circumstance for the issuance of licenses, permits, or authorizations for shipping and field testing previously unlicensed veterinary biologics. The extraordinary circumstance applies when a previously unlicensed veterinary biological product to be shipped for field testing contains live micro-organisms or will not be used exclusively for in vitro diagnostic testing. However, as described above, we have prepared extensive environmental documentation for the testing of such products and have not found there to be a significant impact on the human environment. Accordingly, we are not including this extraordinary circumstance in the current proposal.

    • Currently, paragraph (c)(3)(iii)(C) of § 372.5 sets out a categorical exclusion for permitting of releases into a State's environment of pure cultures of organisms that are either native or are established introductions. With respect to VS activities, the term “pure cultures” refers to seeds that are used to manufacture veterinary biologics. In accordance with the definition of “pure” found in 9 CFR 101.5(c), they must be tested as determined by test methods or procedures established by APHIS and found relatively free of extraneous micro-organisms and extraneous material (organic or inorganic).

    We are proposing to make minor changes to this categorical exclusion. First, we would indicate that the issuance of any license, permit, authorization, or approval for the use of a pure culture would be subject to a categorical exclusion, to cover all possible uses. Second, we would add a parenthetical explaining that pure cultures are relatively free of extraneous micro-organisms and extraneous material. Third, rather than refer to cultures that are “native or established introductions,” we would instead refer to cultures that occur or are likely to occur in a State's environment. It is not necessary for the purposes of assessing environmental impact to distinguish between native organisms and established introductions of organisms, since both occur in the environment, making it unlikely for the release of a pure culture to have environmental impacts. We would determine whether an organism is likely to occur in a State based on the known distribution of the organism, environmental factors, and any other available evidence. For example, if an organism is present in all the surrounding States, it is likely to occur in the surrounded State even if the organism has not been reported there. The use of a pure culture of an organism in a State where the organism is likely to occur is not expected to have significant environmental effects due to the presumed previous presence of the organism. Finally, we would add a qualifier to the existing categorical exclusion indicating that the release of a pure culture of an organism would not qualify for a categorical exclusion if the organism is of quarantine concern. Organisms of quarantine concern are typically subject to control or eradication efforts to prevent impacts on the environment, and releases of pure cultures of such organisms could hinder such efforts.

    The revised categorical exclusion would read: “Issuance of a license, permit, authorization, or approval for uses of pure cultures of organisms (relatively free of extraneous micro-organisms and extraneous material) that are not strains of quarantine concern and occur or are likely to occur in a State's environment.”

    • Issuance of permits and approval of facilities to import, transport, introduce, or release live animals and products or byproducts thereof, or other organisms for which proven risk mitigation measures are applied and will require no substantial modification for the specific articles under consideration. This would include importation or interstate movement of meat, milk/milk products, eggs, hides, bones, animal tissue extracts, etc., which present no disease risk or for which there are proven animal disease risk mitigation measures, such as heating, acidification, or standard chemical treatment. VS has developed common mitigations for many diseases, including sourcing only from healthy animals and from regions free of diseases of concern, quarantine and testing samples for evidence of disease, laboratory containment, and product processing procedures such as heating (including cooking or pasteurization), acidification, curing, storage, standard chemical treatment, and purification. VS conducts extensive monitoring of animal diseases to verify the efficacy of its disease mitigation approaches.

    Paragraph (b) of proposed § 372.9 would set out examples of plant health-related actions that would be categorically excluded. These would include, but would not be limited to:

    • Issuance of permits under 7 CFR part 330 for the importation or interstate movement of organisms into containment facilities, for the interstate movement of organisms between containment facilities, and continued maintenance and use of these organisms. The regulations in 7 CFR part 330 govern the importation and interstate movement of plant pests. Such pests, when imported or moved interstate, must be moved into containment facilities designed to prevent the escape of the pests into the surrounding environment. APHIS' Plant Protection and Quarantine (PPQ) program also amends permits to allow permit holders to continue to keep pests at the facility to which they have been transported. PPQ operates a compliance and enforcement program that involves reporting, periodic inspections, and consequences for variance from required features and procedures, up to and including destruction of organisms. In the last decade, there has been no evidence indicating that the issuance of such permits has any adverse environmental impacts. Therefore, the continued permitting for the importation and interstate movement of organisms in accordance with 7 CFR part 330 is not expected to have significant environmental effects.

    • Issuance of permits for the use of organisms biologically incapable of persisting in the permitted environment. PPQ may permit the use of organisms under 7 CFR part 330 based on the environment surrounding the facility and using information about distribution, biology, and climate tolerances of organisms to ensure mismatch to the climate and season of release. For example, tropical organisms might be subject to a winter study in a greenhouse, or field study only in northern, temperate areas. Because the organisms are unable to persist in the permitted environment and are maintained in compliance with permit conditions, issuance of the permits is not expected individually or cumulatively to have a significant effect on the human environment.

    • As noted earlier, paragraph (c)(3)(iii)(C) of § 372.5 currently provides a categorical exclusion for permitting of releases into a State's environment of pure cultures of organisms that are either native or are established introductions. Besides veterinary biologics, this categorical exclusion also applies to release of pure cultures of organisms to be released as biological control agents. However, the activities have some major differences, and we are therefore proposing to separate the current categorical exclusion into two separate exclusions.

    In the area of biological control, a “pure culture” is loosely defined to include field collections of predators and parasites that are identified on sight as the desired organism. There is no reason or need to “sterilize” or remove contaminants prior to re-release.

    Rather than refer to cultures that are “native or established introductions,” we would instead refer to organisms that occur, or are likely to occur, in a State's environment. For the purposes of assessing environmental impact, distinguishing between native organisms and established introductions of organisms would require identification of distinguishing traits. These types of traits may not exist, and even if they do exist, would require specific testing to confirm. Additionally, gaps in the reported distributions in the scientific literature remain because often there are few incentives to publish “new finds” of an organism in a State. Based on the last decade of permitting experience, when contiguous States have confirmed reports of the organism, the release of that organism into a nearby State lacking confirmed reports is not expected to have significant environmental effects. For these types of permits, we would continue to determine whether an organism is likely to occur in a State based on the known distribution of the organism, environmental factors, and any other available evidence.

    We would not categorically exclude the release of an organism of quarantine concern. Organisms of quarantine concern typically are subject to control or eradication efforts to prevent impacts on the environment, and releases of these organisms could hinder such efforts. We would restrict the permitted use of organisms of quarantine concern to containment facilities for research purposes.

    Finally, besides the movement of pure cultures, other organisms may also be moved interstate for field release, for purposes such as field research outside containment facilities. PPQ only permits such movement when the organism occurs or is likely to occur in a State's environment; as described above, the movement of an organism to a State where PPQ has determined it is likely to occur is not expected to have a significant impact on the human environment, and has not over the past decade. As these two processes are similar, we would address them in the same categorical exclusion.

    Therefore, the new plant health-specific categorical exclusion would read: “Issuance of permits for uses outside of containment that are pure cultures of organisms and that are not strains of quarantine concern and occur or are likely to occur in a State's environment, and issuance of permits for the interstate movement of organisms that occur or are likely to occur in a State's environment.”

    • Issuance of permits or approvals for the importation of articles that are regulated due to plant health concerns, when the permit contains conditions that will mitigate any plant pest risk associated with the articles. PPQ issues permits and approvals for the importation of plants, plant products, and other articles that could introduce quarantine pests into the United States. PPQ does so only after determining that any risk associated with the importation of the articles has been mitigated, thus ensuring that the importation would not have a significant impact on the human environment. Mitigations are typically conventional measures, as described in proposed § 372.8; if mitigations have impacts on the human environment, their use would be evaluated separately from the decision to issue a permit to ensure that appropriate NEPA documentation is completed.

    • Issuance of certificates or limited permits for the movement of regulated articles from areas quarantined due to plant pests. PPQ establishes domestic quarantines for quarantine pests and conditions for the movement of articles that could spread those pests under its regulations in 7 CFR parts 301, 302, and 318. Similar to importation of articles, PPQ issues certificates or limited permits for the interstate movement of such articles only after determining that any risk associated with the importation of the articles has been mitigated, thus ensuring that the movement would not have a significant impact on the human environment.

    • Issuance of permits for the importation or interstate movement of noxious weeds and other regulated seeds. PPQ designates certain plants as noxious weeds in accordance with the Plant Protection Act (7 U.S.C. 7701 et seq.). The regulations in 7 CFR part 360 require permits for the importation and interstate movement of regulated noxious weeds. PPQ only issues permits when conditions are available to prevent the release of the regulated noxious weed into the environment, thus mitigating any potential risk to the environment. Similarly, PPQ enforces certain restrictions on the importation of seed under the Federal Seed Act and under the regulations in 7 CFR part 361. PPQ's enforcement of these restrictions mitigates any risk to the human environment that could arise from these importations.

    • Issuance of permits for prohibited or restricted articles unloaded and landed for immediate transshipment or transportation and exportation. Transshipment or transportation and exportation of restricted articles is regulated under 7 CFR part 352. Permits for such movement are granted only when sufficient safeguards are in place to prevent any plant pests that may have infested the shipment from being introduced into the United States. This ensures that such activities do not have any effect on the human environment.

    Paragraph (c) of proposed § 372.9 would set out examples of biotechnology-related actions that would be categorically excluded. These would include, but would not be limited to:

    • Issuance of permits for the importation, interstate movement, or environmental release of regulated genetically engineered organisms, provided that confinement measures (the permit conditions or performance measures), such as isolation distances from compatible relatives, control of flowering, or physical barriers, minimize the interaction of the regulated article with the environment. APHIS' Biotechnology Regulatory Services (BRS) program issues permits for importation or interstate movement of such articles only after determining that any risk associated with the importation or interstate movement of the articles has been sufficiently mitigated, thus ensuring that the importation or movement would not have a significant impact on the human environment. The regulations in 7 CFR part 340 govern the issuance of permits for the importation and interstate movement of certain genetically engineered organisms and products. Confinement measures are included in the permits; the confinement process is designed to ensure that the environmental release will not have a significant impact on the human environment.

    Current paragraph (d)(4) of § 372.5 indicates that an extraordinary circumstance will apply when a confined field release of genetically engineered organisms or products involves new species or organisms or novel modifications that raise new issues. We are proposing that an extraordinary circumstance would apply when new permit conditions are included to address uncertainty about whether existing confinement measures will be sufficient to prevent the interaction of the genetically engineered organism with the environment. We believe the added specificity of our proposed extraordinary circumstance will better communicate the types of concerns that might lead us to prepare an EA for a confined field release.

    • Extension of nonregulated status under 7 CFR part 340 to organisms similar to those already deregulated. The regulations in that part allow for an applicant to request an extension or for BRS to initiate an extension based on the similarity of a regulated organism to an antecedent organism that has been deregulated. BRS then examines information and assesses whether the regulated article in question raises no serious new issues meriting a separate review under the petition process. Because requests for extensions of nonregulated status assess regulated articles that are similar to the deregulated antecedent organism, the regulated article is presumed to interact with the environment in the same way as the antecedent. EAs for extensions of nonregulated status incorporate the antecedent organism as part of the baseline or no action alternative. We have completed nine EAs for extensions of nonregulated status since 2000. Because the regulated organism (the subject of the request) is so similar to non-regulated organisms that are currently in the environment, the EAs have found no difference with respect to the impacts on biological or physical environment between the two organisms. Moreover, all of the assessments have resulted in findings of no significant impact. For these reasons, we believe it would be appropriate to establish a categorical exclusion for this category of actions.

    • Notifications for environmental release, importation, or interstate movement of articles regulated under 7 CFR part 340. The notification process is described in 7 CFR 340.3. It is an administratively streamlined alternative to a permit for the introduction of an article regulated under that part. The article must meet certain eligibility criteria designed to reduce risk, and the introduction must meet six performance standards. These include confinement and devitalization methods that are designed to further mitigate potential environmental impacts, if any.

    Categorical Exclusions; Other Categories of Actions

    Paragraph (c)(2) of § 372.5 currently lists various categorically excluded actions under the heading of “research and development.” In addition, paragraph (c)(4) provides a categorical exclusion for the rehabilitation of APHIS facilities. As the descriptions of these categorical exclusions are not as extensive as the descriptions of conventional measures and of licensing, permitting, and authorization or approval, we are proposing to combine these categories of actions and list them in a new § 372.10.

    Paragraph (c)(2)(i) of § 372.5 currently provides a description of research and development activities; we are proposing to provide this description in the introductory text of paragraph (a) of proposed § 372.10. Such activities are currently described as activities that are carried out in laboratories, facilities, or other areas designed to eliminate the potential for harmful environmental effects—internal or external—and to provide for lawful waste disposal.

    We are proposing to make a few changes to this text. We would indicate at the beginning of this description that research and development activities that would be eligible for a categorical exclusion under proposed § 372.10 are those limited in magnitude, frequency, and scope. This would clarify why research and development activities usually have minimal effects on the environment.

    Paragraph (c)(2)(ii) of current § 372.5 lists three examples of research and development activities that are categorically excluded:

    • The development and/or production (including formulation, repackaging, movement, and distribution) of previously approved and/or licensed program materials, devices, reagents, and biologics;

    • Research, testing, and development of animal repellents; and

    • Development and production of sterile insects.

    We are proposing to amend these examples and add three more in paragraphs (a)(1) through (a)(6) of proposed § 372.10.

    Paragraph (a)(1) would provide a new categorical exclusion for vaccination trials that occur on groups of animals in areas designed to limit interaction with similar animals, or that include other controls needed to mitigate potential risk. The study design in these cases eliminates the potential for impacts on organisms other than the test subjects.

    Paragraph (a)(2) would provide a new categorical exclusion for the evaluation of uses for chemicals not specifically listed on the product label, as long as they are used in a manner designed to limit potential effects to nontarget species such that there are no individual or cumulative impacts on the human environment. Such evaluation is necessary to determine whether chemicals may be effective against organisms not listed on the label as targets, or whether means of applying the chemical other than those listed on the label may be effective and safe. Many of these evaluations will be subject to experimental use permits issued by EPA with associated conditions to limit potential effects such that there are no individual or cumulatively significant impacts on the human environment. Other evaluations may have products that have been identified by EPA as mimimum risk and therefore do not require a full Federal Insecticide, Fungicide, and Rodenticide Act registration. However, APHIS still does an environmental review to ensure safe use and no extraordinary circumstances.

    Paragraph (a)(3) would expand on the current categorical exclusion that applies to the development and/or production of certain articles. We would amend this exclusion to include the development and/or production of program materials, devices, reagents, and biologics that are for evaluation in confined animal, plant, or insect populations under conditions that prevent exposure to the general population (e.g., conducted in laboratories or other facilities with established environmental and human safety protocols). Since the use is limited and the general population should not be exposed, the development or production of these articles would not have a significant impact on the human environment.

    Paragraph (a)(4) would provide a new categorical exclusion for research using chemicals, management tools, or devices to test the efficacy of methods; new vaccinations not currently approved to test in the natural environment; the use of mechanical devices (such as noise and light deterrence); and existing vaccinations, chemicals, or devices used in a new way on an animal, pest, or disease similar to those on which they have previously been used.

    Paragraph (a)(5) would expand on the current categorical exclusion for the research, testing, and development of animal repellents. As amended, the categorical exclusion would include all research related to the development and evaluation of wildlife management tools, such as animal repellents, scare devices, fencing, and pesticides. As indicated in the introductory text of proposed paragraph (a), APHIS research using the methods described in proposed paragraphs (a)(4) and (a)(5) is limited in magnitude, frequency, and duration, meaning it is not likely to have a significant impact on the human environment. APHIS has conducted many EAs on the operational use of functionally similar methods, and those methods have had no significant impact. APHIS research involving modifications of commonly used techniques is generally intended to improve the efficacy and selectivity of these methods and would be expected to have similar or less risk of adverse impact than the methods operationally in use.

    Paragraph (a)(6) would contain the current categorical exclusion for the development and production of sterile insects. We would amend this categorical exclusion to include the release of sterile insects as well. Sterile insects are bred in captivity, sterilized, and released into the environment, where they reduce the fecundity of pest populations. Environmental effects are limited due to the lack of offspring resulting from mating with the wild population. Research activities included in this category can differ from field releases discussed in proposed § 372.9 because they may be done with novel organisms and for limited duration. Research may also include novel methods for inducing sterility.

    Paragraph (b) of proposed § 372.10 would expand on the categorical exclusion for the rehabilitation of APHIS facilities currently found in paragraph (c)(4) of § 372.5. Paragraph (c)(4) currently indicates that rehabilitation of existing laboratories and other APHIS facilities, functional replacement of parts and equipment, and minor additions to existing APHIS facilities are subject to categorical exclusion. We would retain this list, replacing the word “rehabilitation” with “renovation,” as the term better captures the nature of the work. We would also add categorical exclusions for the improvement, maintenance, and construction of APHIS facilities.

    APHIS frequently needs to improve and maintain its facilities. Such improvement and maintenance often involves minor excavations and repairs to sidewalks and grounds. We would add these as actions that are categorically excluded, provided that they involve disturbances with negligible adverse impacts on the environment.

    More extensive improvements may involve construction, expansion, or improvement of a facility when the permitting and approval process requires measures that address potential environmental effects. (For example, local or State regulations may require that certain construction techniques be used to reduce the effect of the construction on the human environment.) We are proposing to add a categorical exclusion for these more extensive improvements, if they meet the following requirements:

    • The structure and proposed use are in compliance with all Federal, State, Tribal and local requirements (including Executive Order 13423, “Strengthening Federal Environmental, Energy, and Transportation Management,” and other Federal Executive orders);

    • The site and the scale of construction are consistent with those of existing adjacent or nearby buildings; and

    • The size, purpose and location of the structure is unlikely to have significant environmental consequences or create public controversy.

    A facility construction, expansion, or improvement that met these criteria would not be expected to have a significant effect on the human environment because the scope and impacts of the action would remain relatively small.

    Process for Rapid Response to Emergencies

    We are proposing to add a new section describing the process APHIS follows to develop environmental documentation when conducting a rapid response to an emergency. The new section reflects the CEQ guidance discussed previously. Adding new §§ 372.6 through 372.10 would require us to move the other sections in part 372. We are proposing to combine current §§ 372.6 and 372.7, which deal with early planning and consultation on NEPA matters, because they are quite short and discuss related subjects. For this reason, the last section of the current NEPA regulations would be § 372.14 under this proposal, and we are therefore proposing to add this section as § 372.15.

    APHIS frequently takes important emergency actions to prevent the spread of animal and plant pests and diseases. Without emergency action to control the spread of these pests and diseases there is a potential for significant impacts on the human environment. Many actions APHIS takes in emergencies would be categorically excluded from the need to prepare further NEPA documentation under this proposal, as these actions often fall into the categories described in proposed §§ 372.8 through 372.10. Primary examples of such actions can include quarantine, surveillance, decontamination and/or cleaning, and depopulation and disposal. However, particularly when emergency actions are not categorically excluded, it is important to minimize the potential environmental effects of those actions.

    The proposed introductory section of § 372.15 would first state that, an emergency exists when immediate threats to human health and safety or immediate threats to sensitive or protected resources require that action be taken in a timeframe that does not allow sufficient time to follow the procedures for environmental review established in the CEQ regulations and these regulations.

    Proposed paragraph (a) of § 372.15 would then stipulate that when the Administrator of APHIS or the Administrator's delegated Agency official responsible for environmental review determines that an emergency exists that makes it necessary to take immediate action to prevent imminent damage to public health or safety, or sensitive or protected environmental resources in a timeframe that precludes preparing and completing the usual NEPA review, which is comprised of analysis and documentation, the responsible APHIS official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practicable.

    Proposed paragraph (b) of § 372.15 would specify that, if a proposed emergency action is normally analyzed in an EA and the nature and scope of proposed emergency actions are such that there is insufficient time to prepare an EA and FONSI before commencing the proposed action, the Administrator shall consult with APHIS' Chief of Environmental and Risk Analysis Services (ERAS) about completing the required NEPA compliance documentation and may authorize alternative arrangements for completing the required NEPA compliance documentation. Any alternative arrangements should focus on minimizing adverse environmental impacts of the proposed action and the emergency, and they are limited to those actions that are necessary to control the immediate aspects of the emergency. To the maximum extent practicable, these alternative arrangements should include the content, interagency coordination, and public notification and involvement that would normally be undertaken for an EA concerning the action and cannot alter the requirements of the CEQ regulations at 40 CFR 1508.9(a)(1) and (b). Any alternative arrangement also must be documented, and APHIS' Chief of ERAS will inform CEQ of the alternative arrangements at the earliest opportunity.

    Proposed paragraph (c) of § 372.15 would state that APHIS shall immediately inform CEQ, through APHIS' interagency NEPA contact, when the proposed action is expected to result in significant environmental effects and there is insufficient time to allow for the preparation of an EIS. APHIS would consult CEQ and request alternative arrangements for preparing the EIS documentation in accordance with CEQ regulations.

    These procedures are consistent with the CEQ regulations and guidance, and they provide clear direction to APHIS staff and the public on how APHIS will approach emergency NEPA compliance. By explicitly providing for these emergency situations within our implementing regulations, we would ensure that timely emergency actions to counter disease and pest risks can be implemented and also ensure appropriate compliance with NEPA requirements.

    Miscellaneous Changes

    The name and address provided for the Agency's NEPA contact (§§ 372.3 and 372.4) are outdated. This proposal would update that information. The present agency contact for APHIS is Environmental and Risk Analysis Services, PPD, APHIS, USDA, 4700 River Road, Unit 149, Riverdale, MD 20737-1238; (301) 851-3089.

    Due to the proposed reorganization of APHIS' NEPA implementing regulations, paragraph (a)(3) of current § 372.9 would be found in § 372.13. This paragraph has indicated that, when changes are made to EAs and findings of no significant impact, all commenters on the EA will be mailed copies of changes directly. Due to the high volume of comments we receive that do not include mailing addresses, this provision is impractical, and we are proposing to remove it from the regulations. Consistent with the CEQ regulations at 40 CFR 1506.6(b)(1), paragraph (a)(3) of proposed § 372.13 would indicate that we would mail notice to those who provide a mailing address and who have specifically requested it on an individual action. We would continue to make all our environmental documentation publicly available on the APHIS Web site and interested parties can sign up for notifications from Regulations.gov to be emailed when new documents are added to the docket for a regulatory action. Interested parties can also sign up on APHIS' Stakeholder Registry 5 to receive email notification on any specific actions.

    5 At https://public.govdelivery.com/accounts/USDAAPHIS/subscriber/new.

    Executive Orders 12866 and 13563 and Regulatory Flexibility Act

    This proposed rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

    We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also examines the potential economic effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

    The proposed rule would amend regulations that guide APHIS' implementation of the National Environmental Policy Act (NEPA). The amended regulations would clarify when an environmental impact statement (EIS) or an environmental analysis (EA) for an action is normally required, provide additional categories of actions for which we would prepare such documents, expand the list of actions subject to categorical exclusion from further environmental documentation and provide examples of such actions, and establish an environmental documentation process for use in regulatory emergencies.

    Potentially affected entities include individuals, businesses, organizations, governmental jurisdictions, and other entities involved with APHIS in the NEPA process. A small number of these entities may experience time and money savings. For example, in 2014 we estimate that 7 of 62 EAs would have qualified for a categorical exclusion under the amended regulations. In 2015 and 2016 respectively, we estimated that 10 of 87 and 7 of 25 EAs would have qualified for a categorical exclusion under the amended regulations. Resulting cost savings for APHIS and the affected entities are difficult to quantify and would vary by the nature of the proposed actions. It typically takes 1 week to 3 months to prepare an EA to begin clearance. It typically takes 2 to 3 years to prepare an EIS to begin clearance.

    The proposal would make APHIS' NEPA process more transparent and efficient. The effects would be beneficial, but not significant. A small number of entities may experience time and money savings as a result of not having to provide the information necessary for completion of an EA. Affected small entities would include university researchers, research companies that produce veterinary biologics, research and diagnostic labs serving farmers, and producers of biocontrol agends, including Tribal entities. The proposed rule would not have a significant economic impact on a substantial number of small entities.

    Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

    Executive Order 12372

    This program/activity is listed in the catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

    Executive Order 13175

    This proposed rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

    APHIS has assessed the potential impact of this proposed rule and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, APHIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.

    National Environmental Policy Act

    This proposed rule would revise the regulations that guide APHIS employees in NEPA analysis and documentation for animal and plant health management, wildlife damage management, and animal welfare management activities. CEQ regulations do not require agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA, and thus no NEPA document was prepared for this proposed rule. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identification of, three categories of actions: Those that require preparation of an EIS; those that require preparation of an EA; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). Agency NEPA procedures assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.

    Paperwork Reduction Act

    This proposed rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

    List of Subjects in 7 CFR Part 372

    Administrative practice and procedure, Environmental assessment, Environmental impact statement.

    Accordingly, we are proposing to amend 7 CFR part 372 as follows:

    PART 372-NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES 1. The authority citation for part 372 continues to read as follows: Authority:

    42 U.S.C. 4321 et seq.; 40 CFR parts 1500-1508; 7 CFR parts 1b, 2.22, 2.80, and 371.9.

    § 372.1 [Amended]
    2. Section 372.1 is amended by adding the word “(NEPA)” after the word “Act” the first time it occurs; and by removing the second and third occurrences of the words “the National Environmental Policy Act” and adding the word “NEPA” in their place. 3. Section 372.3 is revised to read as follows:
    § 372.3 Information and assistance.

    Information, including the status of studies, and the availability of reference materials, as well as the informal interpretations of APHIS' NEPA procedures and other forms of assistance, will be made available upon request to the APHIS NEPA contact at: Policy and Program Development, APHIS, USDA, Attention: NEPA Contact, 4700 River Road, Unit 149, Riverdale, MD 20737-1238, (301) 851-3089.

    4. Section 372.4 is amended as follows: a. In the introductory text, by adding the words “and definitions” after the word “terminology”, by removing the word “(CEQ)”, and by removing the word “is” and adding the word “are” in its place; b. By revising the definitions of decisionmaker and environmental unit; and c. By adding, in alphabetical order, definitions of Agency official responsible for environmental review and extraordinary circumstances.

    The additions and revisions read as follows:

    § 372.4 Definitions.

    Agency official responsible for environmental review. The Chief of APHIS' Environmental and Risk Analysis Services.

    Decisionmaker. The agency official responsible for signing the categorical exclusion or findings of no significant impact (FONSI) and environmental assessment or the record of decision following the environmental impact statement (EIS) process.

    Environmental unit. The analytical unit in Policy and Program Development responsible for coordinating APHIS' compliance with NEPA and other environmental laws and regulations.

    Extraordinary circumstances. Circumstances in which an action that is normally categorically excluded may have the potential for a significant environmental effect. When an extraordinary circumstance occurs, APHIS will determine whether those circumstances raise potential environmental issues that merit further analysis in an environmental impact statement or environmental assessment.

    5. Section 372.5 is revised to read as follows:
    § 372.5 Environmental impact statements.

    Actions normally requiring environmental impact statements. Actions in this category typically involve the agency, an entire program, or a substantial program component; and may include programmatic for reducing risks to animal and plant health and other human interests such as property, natural resources, and human health and safety. Actions in this category are typically characterized by their broad scope (often nationwide) or their intensity of potential effects (impacting a wide range of environmental components including, but not limited to air, water, soil, plant communities, or animal populations) or indicators (including, but not limited to dissolved oxygen content of water), whether or not affected individuals or systems can be reasonably completely identified at the time. An environmental impact statement will also normally be prepared when an environmental assessment identifies a potential for significant impacts based upon the context and intensity factors listed by the Council on Environmental Quality (CEQ) at 40 CFR 1508.27. An EIS would also be required for an action whose scope is limited to a relatively small geographic area where there is the potential for significant impacts or there is a high degree of uncertainty concerning the potential impacts. Examples include, but are not limited to:

    (a) Formulation of contingent response strategies to combat future widespread outbreaks of animal and plant diseases.

    (b) Adoption of strategic or other long-range plans that prescribe a preferred course of action for future actions implementing the plan.

    § 372.6 [Redesignated as § 372.11]
    6. Section 372.6 is redesignated as § 372.11.
    § 372.7 [Removed]
    7. Section 372.7 is removed.

    §§ 372.8 through 372.10 [Redesignated as §§ 372.12 through 372.14]

    8. Sections 372.8 through 372.10 are redesignated as §§ 372.12 through 372.14, respectively. 9. New §§ 372.6 through 372.10 are added to read as follows:
    § 372.6 Environmental assessments.

    Actions normally requiring environmental assessments. This category of actions is typically related to a more discrete program component but could be programmatic; however, the potential environmental impacts associated with the proposed action are not considered potentially significant at the outset of the planning process. An action in this category is typically characterized by its limited scope (particular sites, State-wide or district-wide programs, specific or similar species, or particular activities). Any effects of the action on environmental resources (such as air, water, soil, plant communities, animal populations, or others) or indicators (such as dissolved oxygen content of water) can be reasonably identified, and mitigation measures are generally available and have previously been successful. Actions normally requiring an environmental assessment, but not necessarily an environmental impact statement, include:

    (a) Policymakings, rulemakings, and actions that seek to remedy specific animal and plant health risks or that may affect opportunities on the part of the public to influence agency environmental planning and decisionmaking. Examples of this category of actions include:

    (1) Development of program plans to adopt strategies, methods, and techniques as the means of dealing with particular animal and plant health risks that may arise in the future; and

    (2) Implementation of program plans at the site-specific action level.

    (b) Planning, design, construction, or acquisition of new facilities, or proposals for substantial modifications to existing facilities.

    (c) Disposition of waste and other hazardous or toxic materials at laboratories and other APHIS facilities.

    (d) Approvals and issuance of permits or licenses for proposals involving regulated genetically engineered or nonindigenous species.

    (e) Programs to reduce damage or harm by a specific wildlife species or group of species, such as deer or birds, or to reduce a specific type of damage or harm, such as protection of agriculture from wildlife depredation and disease; for the management of rabies in wildlife; or for the protection of threatened or endangered species.

    (f) Research or testing that will be conducted outside of a laboratory or other containment area or reaches a stage of development (e.g., formulation of premarketing strategies) that forecasts an irretrievable commitment to the resulting products or technology.

    (g) Determination of nonregulated status for genetically engineered organisms.

    § 372.7 Categorical exclusions; general provisions.

    (a)(1) Categorically excluded actions share many of the same characteristics—particularly in terms of the extent of program involvement, as well as the scope and effect of proposed actions—as actions that normally require environmental assessments but not necessarily environmental impact statements. APHIS considers that mitigation measures alone are not the sole key factor. Rather, there are several factors that should be included in determining whether a category of actions is categorically excluded: The extent to which mitigation measures to avoid or minimize adverse environmental impacts have been built into the actions themselves and, in some cases, standard operating procedures; Agency expertise and experience implementing the actions; and whether testing or monitoring have demonstrated there normally is no potential for significant environmental impacts. The use of a categorical exclusion requires the following three evaluation criteria be met:

    (i) The action has not been segmented. Determine whether the action has not been segmented to meet the definition of a categorical exclusion. Segmentation may occur when an action is intentionally broken down into component parts in order to avoid the appearance of significance of the total action. An action can be too narrowly defined, minimizing potential impacts in an effort to avoid a higher level of NEPA documentation. The scope of an action must include the consideration of connected actions, and the effects when applying extraordinary circumstances must consider cumulative impacts.

    (ii) No extraordinary circumstances exist. Determine whether the action involves any extraordinary circumstances that would require us to preclude the use of a categorical exclusion.

    (iii) The action occurs in a limited area, does not permanently adversely affect the area, and is performed with well-established procedures.

    (2) The Department has promulgated a listing of categorical exclusions that are applicable to all agencies within the Department unless their procedures provide otherwise. The Departmental categorical exclusions, codified at § 1b.3(a) of this title, apply to APHIS. Additional categorical exclusions specific to APHIS are provided in §§ 372.8 through 372.10.

    (3) The use of a categorical exclusion does not relieve the responsible Agency official from compliance with other statutes, such as the Resource Conservation and Recovery Act, the Endangered Species Act, or the National Historic Preservation Act. Such consultations may be required to determine the applicability of the categorical exclusion screening criteria.

    (4) For categorical exclusions requiring a brief presentation of conclusions reached during screening and review of extraordinary circumstances, determinations should be presented in a record of environmental consideration. This determination can be made using current information and expertise as long as the basis for the determination is included in the record of environmental consideration. Copies of appropriate interagency correspondence can be attached to the record of environmental consideration. Example conclusions that may be reached after a review of extraordinary circumstances include:

    (i) The U.S. Fish and Wildlife Service concurred through informal consultation that endangered or threatened species or designated habitat are not likely to be adversely affected.

    (ii) The U.S. Army Corps of Engineers determined that the action is covered by a nationwide general permit.

    (iii) State and/or local natural resource agencies have been consulted to ensure compliance with applicable environmental laws and regulations for protecting and managing natural resources such as native plant and animal species.

    (b) Whenever the Agency official responsible for environmental review determines that an extraordinary circumstance is present such that a normally categorically excluded action may have the potential to significantly affect the quality of the human environment, an environmental assessment or an environmental impact statement will be prepared. Specific extraordinary circumstances for individual categorically excluded actions are listed with those actions in §§ 372.8 through 372.10.

    (c) General extraordinary circumstance for conventional measures. An environmental assessment or environmental impact statement will be prepared when an extraordinary circumstance is present such that a normally categorically excludable action, as identified in §§ 372.8 through 372.10, has the potential to significantly affect the quality of the human environment. General extraordinary circumstances that preclude the use of a categorical exclusion are:

    (1) A reasonable likelihood of significant impact on public health or safety.

    (2) A reasonable likelihood of significant environmental effects (direct, indirect, and cumulative).

    (3) A reasonable likelihood of involving effects on the environment that involve risks that are highly uncertain, unique, or are scientifically controversial.

    (4) A reasonable likelihood of violating any Executive Order, Federal law, or requirements imposed for the protection of the environment.

    (5) A reasonable likelihood of adversely affecting environmentally sensitive resources, unless the impact has been resolved through another environmental process (e.g., the Coastal Zone Management Act, National Historic Preservation Act, Clean Water Act, etc.). Environmentally sensitive resources include:

    (i) Proposed federally listed, threatened, or endangered species or their designated critical habitats.

    (ii) Properties listed or eligible for listing on the National Register of Historic Places.

    (iii) Areas having special designation or recognition such as prime or unique agricultural lands; coastal zones; designated wilderness or wilderness study areas; wild and scenic rivers; National Historic Landmarks (designated by the Secretary of the Interior); floodplains; wetlands; sole source aquifers; National Wildlife Refuges; National Parks; areas of critical environmental concern; or other areas of high environmental sensitivity.

    (iv) Cultural, scientific, or historic resources.

    (6) A reasonable likelihood of dividing or disrupting an established community or planned development.

    (7) A reasonable likelihood of causing a substantial increase in surface transportation congestion that will decrease the level of service below acceptable levels.

    (8) A reasonable likelihood of adversely impacting air quality, exceeding, or violating Federal, State, local, or Tribal air quality standards under the Clean Air Act, as amended.

    (9) A reasonable likelihood of adversely impacting water quality, sole source aquifers, public water supply systems or State, local, or Tribal water quality standards established under the Clean Water Act and the Safe Drinking Water Act.

    (10) A reasonable likelihood of effects on the quality of the environment that are highly controversial on environmental grounds. The term “controversial” means a substantial scientific dispute exists as to the size, nature, or effect of the proposed action rather than to the existence of opposition to a proposed action, the effect of which is relatively undisputed.

    (11) A reasonable likelihood of a disproportionately high and adverse effect on low income or minority populations.

    (12) Limit access to or ceremonial use of Indian sacred sites on Federal lands by Indian religious practitioners, or significantly adversely affect the physical integrity of sacred sites.

    (13) Unless releases are supported by a biocontrol risk analysis or expert panel recommendation that accompanies the administrative record for the categorical exclusion documentation, the proposed action has a reasonable likelihood of contributing to the introduction, continued existence, or spread of federally recognized noxious weeds or non-native invasive species known to occur in the area; or actions that may promote the introduction, growth, or expansion of the range of noxious weed species.

    (14) A greater scope or size than is normal for this category of action.

    (15) A reasonable likelihood of degrading already existing poor environmental conditions. Also, initiation of a degrading influence, activity, or effect in areas not already significantly modified from their natural condition.

    (16) A precedent (or makes decisions in principle) for future or subsequent actions that have a reasonable likelihood of having a future significant effect.

    (17) A reasonable likelihood of:

    (i) Releases of petroleum, oils, and lubricants (except from a properly functioning engine or vehicle) or reportable releases of hazardous or toxic substances as specified in 40 CFR part 302, Designation, Reportable Quantities, and Notification); or

    (ii) Where the proposed action requires development or amendment of a Spill Prevention, Control, or Countermeasures Plan.

    § 372.8 Categorical exclusions; conventional measures.

    (a) Overview. Conventional measures include activities such as identifications; inspections; monitoring, including surveys and surveillance, that does not cause physical alteration of the environment; testing; seizures; quarantines; removals; sanitizing, cleaning and disinfection; inoculations; and animal handling and management employed by agency programs to pursue their missions and functions. Paragraphs (b) through (l) of this section explain and give examples of conventional measures. Such measures may include the use—according to any label instructions or other lawful requirements and consistent with standard, published program practices and precautions—of pesticides, chemicals, drugs, pheromones, contraceptives, or other potentially harmful substances, materials, and target-specific devices or remedies.

    (b) Identifications. Detection and identification of premises or animals, or identification of organisms, diseases, or species causing damage or harm. These range from biological or physical marking and tracking of animals, to premises identification, and/or the use of other markers such as inert particles in feed and branding. Examples include, but are not limited to:

    (1) Commodity labels;

    (2) Issuance of a specific identification number;

    (3) Animal tags;

    (4) Radio transmitters;

    (5) Microchips; and

    (6) Chemicals (such as tetracycline or rhodamine B ingestion).

    (c) Inspections. Inspections of articles (including fruits and vegetables) to determine if there are any plant pests present, which could involve cutting fruit for inspection; the physical inspection of animals upon entry into the United States; facility and records inspections; inspections of commodities, facilities, or fields, including paperwork and records, for approval and to assure compliance with regulations and program standards. Inspections usually follow a prescribed protocol and document findings on an inspection report form. Examples include, but are not limited to:

    (1) Physical examination of plants, plant products, and animals at the port of entry.

    (2) Review of containment facilities.

    (3) Review of paperwork and records to assure compliance with program regulations and standards.

    (d) Monitoring, including surveys, surveillance, and trapping, that does not cause physical alteration of the environment. Surveys include questionnaires to collect information and data to assess a current state or trend in activities, to determine compliance, or to determine whether a pest or disease exists in a specific area. Surveillance includes activities to collect test samples from part or all of the target population using routine collection techniques. Trapping refers to the use of capture devices that are designed to efficiently capture, restrain, or kill targeted individual animals or a group of animals (e.g., fruit flies and other insects, a raccoon, a sounder of feral swine). Capture devices used in trapping are foothold; cage; drive; quick-kill; pit (for insects and some small rodents, reptiles and amphibians); insect and sticky traps; snares and other cable restraints; nets; hands; contained animal drugs (e.g., dart guns, tranquilizer tab devices); and insecticides. Attractants used with some types of trapping are food, odor baits or lures, pheromones, shapes, and colors. Trapping avoids risks to the viability of native nontarget species populations through use of attractants designed for specific target animals, device design and proper application, and device placement. Examples include, but are not limited to:

    (1) Collection of biological or environmental samples, such as tissue, soil, or water samples and samples of fecal matter.

    (2) Continual checking, by testing, trapping, or observing for the presence, absence, or prevalence of animals, pests, or disease. Information may be used to support a pest or disease status (such as pest-free or disease-free status).

    (3) Surveying and monitoring for disease may or may not require the lethal removal of the animal and can often be conducted using nonlethal methods, such as collection of samples from animals killed or removed for reasons related to disease monitoring (i.e., damage management action addressed in an environmental assessment, or hunter-killed animals).

    (4) Randomly selecting animals and obtaining blood samples to survey for disease, or collection of test samples.

    (e) Testing. The examination or analysis of a collected sample. This activity often occurs in a laboratory, but also includes nonlethal tests that require animal-side or chute-side injection and observation in the field. Testing may require the use of specialized equipment and/or diagnostic test kits. Examples include, but are not limited to, intradermal tuberculosis testing of livestock and germplasm testing of plant material for viral infections.

    (f) Seizures. Taking possession of conveyances, materials, regulated articles, plants and plant products, animals and animal products, other articles infested with a pest or determined to be diseased or exposed to a disease, a regulated article that is mixed in a commodity, or contaminated shipping material. Examples include, but are not limited to:

    (1) Confiscation of a commodity that could be a vector for a plant or animal disease or pest, or an animal or plant determined to be infested, infected, exposed, or not in compliance with APHIS regulations (such as one moved illegally or without proper paperwork).

    (2) Seizure of a nonregulated commodity, seed, or propagative material containing regulated genetically engineered material.

    (g) Quarantines. Actions to restrict or prohibit movement from an area, including the creation, expansion, removal, or modification of quarantines. The establishment of a quarantine can include mitigations to allow for movement of animals or commodities while preventing the spread of the animal or plant pest or disease. These mitigations are evaluated separately from the establishment of the quarantine itself. Examples of quarantines are:

    (1) Quarantine of an area in which a pest or disease is known to occur to prevent movement of animals, plants, or other articles whose movement could spread the pest or disease.

    (2) Changes in pest or disease status for an area or country, such as expansion or rescission of existing quarantines.

    (3) Removal of quarantine restrictions when APHIS determines that it is appropriate to do so.

    (h) Removals. Relocation or lethal removal of living organisms, or destruction of materials. Examples include, but are not limited to:

    (1) Removal of animals in accordance with permits and agreements from the appropriate management agencies, or otherwise in accordance with regulations governing management of a species, for the purpose of approved research studies, surveillance and monitoring, or disease or damage management, or due to pest concerns.

    (2) Removal of animals or materials from premises.

    (3) Removal of trees or shrubs and plants.

    (4) Disposal or destruction of materials for which the Agency has regulatory authority due to, for example, completion of acknowledged or permitted activities, completion of regulated activities, or noncompliance and disposal of animals. This can include disposal of regulated articles (fruits, meat, regulated genetically engineered organisms, etc.) at ports of entry designated by U.S. Customs and Border Protection (CBP).1 Approved methods of disposal range from burial, feeding to animals, composting, to co-burning for power generation.

    1 Further information on CBP-approved ports is available on the Internet at http://www.cbp.gov/contact/ports.

    (5) Routine disposal of carcasses using other approved methods, such as donation for human consumption, composting, chemical digestion, burial, and incineration.

    (6) Depopulation of domestic livestock and captive wildlife due to the presence of an animal disease or the reasonable suspicion of the presence of an animal disease. Extraordinary circumstance: An outbreak of a foreign animal disease that would require the depopulation of a large number of animals potentially resulting in substantial or significant adverse impacts on the human environment.

    (i) Sanitizing, cleaning, and disinfection. Treatment of an infested commodity, cleaning, and disinfection that occurs when a disease is found or there is an emergency disease outbreak, treatment of a regulated article, or treatment for carcass disposal. Examples include, but are not limited to:

    (1) Treatment of regulated articles at existing facilities, such as irradiation treatment and methyl bromide special use treatment.

    (2) Treatment of a facility, container, or cargo hold at the port of entry to mitigate pest threats.

    (3) Cleaning and disinfection of equipment, cages, facilities, or premises.

    (4) Treatment of animal carcasses, using methods such as incineration, alkaline digestion, or rendering as a method to devitalize infectious material.

    (j) Inoculations. Introduction of a pathogen or antigen into a living organism in order to invoke an immune response to treat or prevent a disease. Examples are:

    (1) Inoculation or treatment of discrete herds of livestock or wildlife undertaken in contained areas (such as a barn or corral, a zoo, an exhibition, or an aviary).

    (2) Use of vaccinations or inoculations including new vaccines (for example, genetically engineered vaccines) and applications of existing vaccines to new species provided that the project is conducted in a controlled and limited manner, and the impacts of the vaccine can be predicted. Extraordinary circumstance: A previously licensed or approved biologic has been subsequently shown to be unsafe, or will be used at substantially higher dosage levels or for substantially different applications or circumstances than in the use for which the product was previously approved.

    (k) Animal handling and management. Nonlethal methods not addressed elsewhere in this part that are used to prevent, monitor for, reduce, or stop disease, damage, or harm caused by animals. Examples include, but are not limited to:

    (1) Restraining or handling livestock, poultry, or wildlife to facilitate examination or other activities.

    (2) Cultural methods and basic habitat management, such as nonlethal management activities such as removal of food sources, modification of planting systems, modification of animal husbandry practices, water control devices for beaver dams, limited beaver dam removal, and pruning trees.

    (3) Site-specific applications of nonlethal wildlife damage management practices, such as frightening devices, exclusion, capture and release, and capture and relocation.

    (l) Recordkeeping and labeling. Requiring regulated parties to keep records demonstrating compliance with APHIS requirements or to label regulated articles to indicate compliance or set out restrictions on the movement of the article. Examples include, but are not limited to:

    (1) Records documenting the results of trapping for insects.

    (2) Records of the application of treatments.

    (3) Labels indicating that the movement of a regulated article to certain areas within the United States is illegal.

    (4) Records retained by approved livestock facilities and listed slaughtering or rendering establishments under 9 CFR part 71.

    § 372.9 Categorical exclusions; licensing, permitting, authorization, and approval.

    Licensing and permitting refer to the issuance of a license, permit, or authorization to entities including individuals, manufacturers, distributors, agencies, organizations, or universities for field testing, environmental release, or importation or movement of animals; plants; animal, plant, or veterinary biological products; or any other regulated article. Authorization and approval are for an entity to participate in a program or perform an action. Examples of this category of action are:

    (a) Animal health-related. (1) Approval of interstate movement or importation of animals via regulations or permits. Examples include, but are not limited to:

    (i) Use of permits to control the interstate movement of restricted animals, such as issuance of an official document or a State form allowing the movement of restricted animals to a particular destination.

    (ii) Use of permits for entry, such as pre-movement authorization for entry of animals into a State from the State animal health official of the State of destination.

    (iii) Approval of international movements through the use of import and export health certificates and import or export movement permits.

    (iv) Authorization to move animals out of the quarantine or buffer zone for cattle fever ticks by documentation (a State form) that confirms the animals have been inspected and found to be tick-free.

    (2) Licensing of swine garbage feeding operations.

    (3) Accreditation of private veterinarians.

    (4) Approval and permitting of laboratories to conduct official tests.

    (5) Approval of identification manufacturers to produce identification, tests, and identification devices.

    (6) Listing of slaughter and rendering establishments for surveillance under 9 CFR 71.21.

    (7) Approval of herd and premises plans that have environmental or waste management components.

    (8) Approval of herd accreditation for tuberculosis or certification for brucellosis to document the herd's freedom from disease.

    (9) Funding the depopulation of diseased herds, including indemnity and carcass disposal; authorization and funding of the collection and submission of tissue samples for testing.

    (10) Approval of participation in the National Poultry Improvement Plan by issuance of a permanent approval number in accordance with 9 CFR 145.4.

    (11) Authorization to ship and field test previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines).

    (12) Issuance of a license or permit for previously unlicensed veterinary biologics including veterinary biologics containing genetically engineered organisms (such as vector-based vaccines and nucleic-acid based vaccines).

    (13) Issuance of a license, permit, authorization, or approval for uses of pure cultures of organisms (relatively free of extraneous micro-organisms and extraneous material) that are not strains of quarantine concern and occur, or are likely to occur, in a State's environment.

    (14) Issuance of permits and approval of facilities to import, transport, introduce, or release live animals and products or byproducts thereof, or other organisms for which proven risk mitigation measures are applied and will require no substantial modification for the specific articles under consideration. This includes importation or interstate movement of meat, milk/milk products, eggs, hides, bones, animal tissue extracts, etc., which present no disease risk or for which there are proven animal disease risk mitigation measures, such as heating, acidification, or standard chemical treatment.

    (b) Plant health-related. (1) Issuance of permits for the importation or interstate movement of organisms into containment facilities, for the interstate movement of organisms between containment facilities, and continued maintenance and use of these organisms.

    (2) Issuance of permits for the use of organisms biologically incapable of persisting in the permitted environment.

    (3) Issuance of permits for uses outside of containment that are pure cultures of organisms and that are not strains of quarantine concern and occur or are likely to occur in a State's environment, and issuance of permits for the interstate movement of organisms that occur or are likely to occur in a State's environment.

    (4) Issuance of permits or approvals for the importation of articles that are regulated due to plant health concerns, when the permit contains conditions that will mitigate any plant pest risk associated with the articles.

    (5) Issuance of certificates or limited permits for the movement of regulated articles from areas quarantined due to plant pests.

    (6) Issuance of permits for the importation or interstate movement of regulated noxious weeds and other regulated seeds.

    (7) Issuance of permits for prohibited or restricted articles unloaded and landed for immediate transshipment or transportation and exportation.

    (c) Biotechnology-related. (1) Issuance of permits for the importation, interstate movement, or environmental releases of regulated genetically engineered organisms, provided that confinement measures (the permit conditions or performance measures), such as isolation distances from compatible relatives, control of flowering, or physical barriers, minimize the interaction of the regulated article with the environment. Extraordinary circumstance: Uncertainty of confinement measures and the ability of such to prevent the interaction of the regulated genetically engineered organism with the environment.

    (2) Extension of nonregulated status under part 340 of this chapter to organisms similar to those already deregulated.

    (3) Notifications for environmental release, importation, or interstate movement of regulated genetically engineered organisms.

    § 372.10 Categorical exclusions; research and development and facilities.

    (a) Research and development activities. Activities limited in magnitude, frequency, and scope that occur in laboratories, facilities, pens, or field sites. Examples are:

    (1) Vaccination trials that occur on groups of animals in areas designed to limit interaction with similar animals, or that include other controls needed to mitigate potential risk.

    (2) Evaluation of uses for chemicals not specifically listed on the product label, if they are used in a manner designed to limit potential effects to nontarget species.

    (3) The development and/or production (including formulation, packaging or repackaging, movement, and distribution) of articles such as program materials, devices, reagents, and biologics that were approved and/or licensed in accordance with existing regulations, or that are for evaluation in confined animal, plant, or insect populations under conditions that prevent exposure to the general population.

    (4) Research using chemicals, management tools, or devices to test the efficacy of methods; new vaccinations not currently approved to test in the natural environment; the use of mechanical devices (such as noise and light deterrence); and existing vaccinations, chemicals, or devices used in a new way on an animal, pest, or disease similar to those on which they have previously been used.

    (5) Research related to the development and evaluation of wildlife management tools, such as animal repellents, scare devices, fencing, and pesticides.

    (6) Development, production, and release of sterile insects.

    (b) Renovation, improvement, maintenance, and construction of facilities. Examples are:

    (1) Renovation of existing laboratories and other APHIS facilities.

    (2) Functional replacement of parts and equipment.

    (3) Minor additions to existing APHIS facilities.

    (4) Minor excavations of land and repairs to properties.

    (5) Construction, expansion, or improvement of a facility if:

    (i) The structure and proposed use are in compliance with all Federal, State, Tribal, and local requirements;

    (ii) The site and scale of construction are consistent with those of existing adjacent or nearby buildings; and

    (iii) The size, purpose and location of the structure is unlikely to have significant environmental consequences or create public controversy.

    10. Newly redesignated § 372.11 is revised to read as follows:
    § 372.11 Early planning and consultation for applicants and non-APHIS entities.

    Prospective applicants who anticipate the need for approval of proposed activities classified as normally requiring environmental documentation should contact, at their earliest opportunity, APHIS' program staff. APHIS program officials will help them determine the types of environmental analyses or documentation, if any, that need to be prepared and how they may inform decisions. The NEPA documents will incorporate by reference (as required by the CEQ regulations in 40 CFR 1502.21), to the fullest extent practicable, surveys and studies required by other environmental statutes.

    11. Newly redesignated § 372.12 is amended as follows: a. By revising the section heading; b. In the paragraph heading for paragraph (a), by removing the words “Major planning” and adding in their place the word “Planning”; c. In paragraph (b), introductory text, by adding the words “and environmental assessment process” after the words “environmental impact statement process”; and d. By revising paragraphs (b)(2) and (b)(4).

    The revisions read as follows:

    § 372.12 Planning and decision points and public involvement.

    (b) * * *

    (2) Opportunities for public involvement in the environmental assessment process will be announced in the same fashion as the opportunities for public involvement in the environmental impact statement process.

    (4) All environmental documents and comments received will be made available to the public via Regulations.gov.

    12. Newly redesignated § 372.13 is amended as follows: a. In paragraph (a), introductory text, by adding a new sentence after the end of the first sentence; b. In paragraph (a)(1), by removing the citation “§ 372.8” and adding the citation “§ 372.12” in its place; and c. By revising paragraph (a)(3).

    The addition and revision read as follows:

    § 372.13 Processing and use of environmental documents.

    (a) * * * This determination is based on information provided in the NEPA document and available in the administrative record.

    (3) Changes to environmental assessments and findings of no significant impact that are prompted by comments, new information, or any other source, will normally be announced in the same manner as the notice of availability prior to implementing the proposed action or any alternative. APHIS will mail notice upon request.

    13. Newly redesignated § 372.14 is revised as follows:
    § 372.14 Supplementing environmental impact statements.

    Once a decision to supplement an environmental impact statement is made, a notice of intent will be published. The administrative record kept in connection with the EIS will thereafter be reopened if the supplemental environmental impact statement is issued after the record of decision is issued. The supplemental document will then be processed in the same fashion (exclusive of scoping) as a draft and a final statement (unless alternative procedures are approved by CEQ) and will become part of the administrative record.

    14. A new § 372.15 is added to read as follows:
    § 372.15 Process for rapid response to emergencies.

    An emergency exists when immediate threats to human health and safety or immediate threats to sensitive or protected resources require that action be taken in a timeframe that does not allow sufficient time to follow the procedures for environmental review established in the CEQ regulations and the regulations in this part.

    (a) When the Administrator or the Administrator's delegated Agency official responsible for environmental review determines that an emergency exists that makes it necessary to take immediate action to prevent imminent damage to public health or safety, or sensitive or protected environmental resources in a timeframe that precludes preparing and completing the usual NEPA review, which is comprised of analysis and documentation, the responsible APHIS official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practicable.

    (b) If a proposed emergency action is normally analyzed in an environmental assessment as described in § 372.6 and the nature and scope of proposed emergency actions are such that there is insufficient time to prepare an EA and FONSI before commencing the proposed action, the Administrator shall consult with APHIS' Chief of Environmental and Risk Analysis Services about completing the required NEPA compliance documentation and may authorize alternative arrangements for completing the required NEPA compliance documentation. Any alternative arrangements must be documented and notice of their use provided to CEQ.

    (c) APHIS shall immediately inform the CEQ, through APHIS' interagency NEPA contact, when the proposed action is expected to result in significant environmental effects and there is insufficient time to allow for the preparation of an EIS. APHIS will consult CEQ and request alternative arrangements in accordance with CEQ regulations at 40 CFR 1506.11. Such alternative arrangements will apply only to the proposed actions necessary to control the immediate impacts of the emergency. Other proposed actions remain subject to NEPA analysis and documentation in accordance with the CEQ regulations and the regulations in this part.

    Done in Washington, DC, this 14th day of July 2016. Edward Avalos, Under Secretary, Marketing and Regulatory Programs.
    [FR Doc. 2016-17138 Filed 7-19-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF ENERGY 10 CFR Parts 429 and 430 [Docket No. EERE-2016-BT-TP-0005] RIN 1904-AD64 Energy Conservation Program: Test Procedures for Certain Categories of General Service Lamps AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Supplemental notice of proposed rulemaking.

    SUMMARY:

    This supplemental notice of proposed rulemaking (SNOPR) proposes to establish test procedures for certain categories of general service lamps (GSLs) to support the ongoing energy conservation standards rulemaking. Specifically, this rulemaking proposes new test procedures for determining the initial lumen output, input power, lamp efficacy, power factor, and standby mode power of GSLs that are not integrated light-emitting diode (LED) lamps, compact fluorescent lamps (CFLs), or general service incandescent lamps (GSILs). This SNOPR revises the previous proposed test procedures for GSLs by referencing Illuminating Engineering Society (IES) LM-79-08 for the testing of non-integrated LED lamps. The U.S. Department of Energy (DOE) is also proposing to clarify references to the existing lamp test methods and sampling plans for determining the represented values of integrated LED lamps, CFLs, and GSILs.

    DATES:

    DOE will accept comments, data, and information regarding this SNOPR no later than August 19, 2016. See section V, “Public Participation,” for details.

    ADDRESSES:

    Any comments submitted must identify the SNOPR for Test Procedures for Certain Categories of General Service Lamps, and provide docket number EERE-2016-BT-TP-0005 and/or regulatory information number (RIN) 1904-AD64. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected] Include the docket number EERE-2016-BT-TP-0005 and/or RIN 1904-AD64 in the subject line of the message.

    3. Mail: Ms. Lucy deButts, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC, 20585-0121. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Lucy deButts, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., Suite 600, Washington, DC, 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this SNOPR, “Public Participation.”

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

    A link to the docket Web page can be found at https://www.regulations.gov/#!docketDetail;D=EERE-2016-BT-TP-0005. The docket Web page contains simple instructions on how to access all documents, including public comments, in the docket. See section V, “Public Participation,” for information on how to submit comments through www.regulations.gov.

    For further information on how to submit a comment or review other public comments and the docket, contact Ms. Lucy deButts at (202) 287-1604 or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 287-1604. Email: [email protected]

    Mr. Pete Cochran, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC, 20585-0121. Telephone: (202) 586-9496. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    DOE proposes to incorporate by reference into 10 CFR part 430 specific sections of the following industry standards:

    (1) IEC 62301 (“IEC 62301-DD”), Household electrical appliances—Measurement of standby power (Edition 2.0, 2011-01).

    A copy of IEC 62301-DD may be obtained from the International Electrotechnical Commission, available from the American National Standards Institute, 25 W. 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or go to http://webstore.ansi.org.

    (2) IES LM-9-09 (“IES LM-9-09-DD”), IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps.

    (3) IES LM-20-13, IES Approved Method of Photometry of Reflector Type Lamps.

    (4) IES LM-45-15, IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps.

    (5) IES LM-79-08 (“IES LM-79-08-DD”), IES Approved Method for the Electrical and Photometric Measurement of Solid-State Lighting Products.

    Copies of IES LM-9-09-DD, IES LM-20-13, IES LM-45-15, and IES LM-79-08-DD can be obtained from Illuminating Engineering Society of North America, 120 Wall Street, Floor 17, New York, NY 10005-4001, or by going to www.ies.org/store.

    See section IV.M for a further discussion of these standards.

    Table of Contents I. Authority and Background II. Synopsis of the Supplemental Notice of Proposed Rulemaking III. Discussion A. Scope of Applicability B. Proposed Method for Determining Initial Lumen Output, Input Power, Lamp Efficacy, and Power Factor C. Laboratory Accreditation D. Effective Date and Compliance Dates IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under Section 32 of the Federal Energy Administration Act of 1974 M. Description of Materials Incorporated by Reference V. Public Participation A. Submission of Comments B. Issues on Which DOE Seeks Comment VI. Approval of the Office of the Secretary I. Authority and Background

    Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et seq.; “EPCA” or “the Act”) sets forth a variety of provisions designed to improve energy efficiency.1 Part B of title III, which for editorial reasons was redesignated as Part A upon incorporation into the U.S. Code (42 U.S.C. 6291-6309, as codified), establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” These consumer products include general service lamps, the subject of this supplemental notice of proposed rulemaking (SNOPR).

    1 All references to EPCA refer to the statute as amended through the Energy Efficiency Improvement Act of 2015, Public Law 114-11 (April 30, 2015).

    Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) making representations about the energy use or efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

    DOE is developing energy conservation standards for general service lamps (GSLs) and published a notice of proposed rulemaking on March 17, 2016 (March 2016 GSL ECS NOPR). In support of the standards rulemaking, DOE has undertaken several rulemakings to amend existing test procedures and to adopt new test procedures for GSLs. On July 1, 2016, DOE published a final rule adopting test procedures for integrated light-emitting diode (LED) lamps. 81 FR 43404 (July 2016 LED TP final rule). DOE has proposed to amend test procedures for medium base compact fluorescent lamps (MBCFLs) and to adopt test procedures for new metrics for all compact florescent lamps (CFLs) including hybrid CFLs and CFLs with bases other than a medium screw base. 80 FR 45724 (July 31, 2015) (July 2015 CFL TP NOPR).

    On March 17, 2016, DOE published a NOPR (March 2016 GSL TP NOPR) that proposed test procedures for certain categories of GSLs not currently covered under these existing test procedures. 81 FR 14632. This SNOPR revises the test procedures proposed in the March 2016 GSL TP NOPR by referencing Illuminating Engineering Society (IES) LM-79-08 for the testing of non-integrated LED lamps. Manufacturers of lamps subject to this rulemaking would be required to use these test procedures to assess performance relative to any potential energy conservation standards the lamps must comply with in the future and for any representations of energy efficiency.

    EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides, in relevant part, that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Pursuant to this authority, DOE proposes to prescribe test procedures for certain categories of GSLs in support of the GSL standards rulemaking.

    II. Synopsis of the Supplemental Notice of Proposed Rulemaking

    In this SNOPR, DOE proposes test procedures for determining initial lumen output, input power, lamp efficacy, power factor, and standby mode power for certain categories of GSLs for which DOE does not have an existing regulatory test procedure. Based on public comment received in response to the March 2016 GSL TP NOPR, DOE proposes to reference IES LM-79-08 for the testing of non-integrated LED lamps. DOE's proposals for the standby mode test procedure, represented value calculations, and certification and rounding requirements remain unchanged from the March 2016 GSL TP NOPR. DOE also notes that representations of energy use or energy efficiency must be based on testing in accordance with this rulemaking, if adopted, beginning 180 days after the publication of a test procedure final rule.

    III. Discussion A. Scope of Applicability

    GSL is defined by EPCA to include GSILs, CFLs, general service light-emitting diode (LED) lamps (including organic LEDs (OLEDs)), and any other lamp that DOE determines is used to satisfy lighting applications traditionally served by GSILs. (42 U.S.C. 6291(30)(BB)) In the March 2016 GSL ECS NOPR, DOE proposed to include in the definition for general service lamp a lamp that has an ANSI 2 base, operates at any voltage, has an initial lumen output of 310 lumens or greater (or 232 lumens or greater for modified spectrum GSILs), is not a light fixture, is not an LED downlight retrofit kit, and is used in general lighting applications.3 81 FR 14541. This SNOPR proposes test procedures for GSLs that are not GSILs, CFLs, or integrated LED lamps.

    2 A lamp base standardized by the American National Standards Institute.

    3 The definition also specified several exemptions, including: General service fluorescent lamps; incandescent reflector lamps; mercury vapor lamps; appliance lamps; black light lamps; bug lamps; colored lamps; infrared lamps; marine signal lamps; mine service lamps; plant light lamps; sign service lamps; traffic signal lamps; and medium screw base incandescent lamps that are left-hand thread lamps, marine lamps, reflector lamps, rough service lamps, shatter-resistant lamps (including a shatter-proof lamp and a shatter-protected lamp), silver bowl lamps, showcase lamps, 3-way incandescent lamps, vibration service lamps, G shape lamps as defined in ANSI C78.20 and ANSI C79.1-2002 with a diameter of 5 inches or more, T shape lamps as defined in ANSI C78.20 and ANSI C79.1-2002 and that use not more than 40 watts or have a length of more than 10 inches, and B, BA, CA, F, G16-1/2, G-25, G30, S, or M-14 lamps as defined in ANSI C79.1-2002 and ANSI C78.20 of 40 watts or less.

    DOE received comments from China 4 regarding the scope of applicability of this rulemaking. China noted that OLED lamps are classified as general service lamps and would be subject to the test procedures proposed in the March 2016 GSL TP NOPR. China commented that OLED lamps are unique from existing lighting technologies, and that International Commission on Illumination (CIE) and related researchers are considering developing a specialized test method for OLED lamps. China therefore suggested that DOE develop specific regulations and test procedures for OLED lamps instead of using existing LED lamp test procedures. (China, No. 8 at p. 1) 5

    4 DOE received two comments from China, both of which provided essentially the same comments regarding the March 2016 GSL TP NOPR. (EERE-BT-TP-0005-008 and EERE-BT-TP-0005-0009) For the purpose of this SNOPR, DOE provides reference to the first comment submitted by China.

    5 A notation in this form provides a reference for information that is in the docket of DOE's rulemaking to develop test procedures for GSLs (Docket No. EERE-2016-BT-TP-0005), which is maintained at www.regulations.gov. This notation indicates that the statement preceding the reference was made by China, is from document number 8 in the docket, and appears at page 1 of that document.

    DOE understands that the current industry practice is to test OLED lamps according to IES LM-79-08, a test standard that is applicable to solid-state lighting products, including both LED and OLED lamps. In this SNOPR, DOE proposes to reference LM-79-08 to determine initial lumen output, input power, lamp efficacy, and power factor for OLED lamps. If a new test procedure is developed by industry members and/or related researchers, DOE will consider it in a future revision of this test procedure.

    China commented that in section III.A of the March 2016 GSL TP NOPR, DOE referred to its proposed definition of a GSL from the March 2016 GSL ECS NOPR, which includes lamps with an initial lumen output of 310 lumens or greater. China noted that in Energy Star Lamps Specification V2.0, the lumen range of products used to replace a 25 watt (W) incandescent lamp is between 250 and 449 lumens. China stated that the difference between the proposed definition of GSL in the March 2016 GSL ECS NOPR and the products covered in the Energy Star Lamps Specification V2.0 would cause confusion on how to test lamps with lumen outputs less than 310 lumens. Therefore, China suggested that DOE clarify the test requirements for lamps below 310 lumens. (China, No. 8 at p. 1)

    DOE notes that this SNOPR proposes test procedures for GSLs that are not GSILs, CFLs, or integrated LED lamps. The March 2016 GSL ECS NOPR proposed a definition of GSL that would be limited to products with a lumen output of 310 lumens or greater (or 232 lumens or greater for modified spectrum general service incandescent lamps). 81 at FR 14628. DOE recognizes that ENERGY STAR Lamps Specification V2.0 includes products with a lumen output of less than 310 lumens. To determine how such lamps should be evaluated under ENERGY STAR Lamps Specification V2.0, interested parties will need to consult the ENERGY STAR document.

    China commented that, while section III.B of the March 2016 GSL TP NOPR stated that the term GSL includes many types of lamps using varying lighting technologies, it understood from the discussion in section III.A that halogen lamps were excluded from the definition of GSL. China requested clarification on whether the proposed rule would cover halogen lamps. (China, No. 8 at p. 1)

    As noted in this preamble, a definition of GSL was proposed in the March 2016 GSL ECS NOPR, and that proposed definition does not exclude halogen lamps generally. This SNOPR proposes test procedures for other incandescent lamps, i.e., incandescent lamps that are GSLs but not GSILs. “Incandescent lamp” is currently defined, in part, as a lamp in which light is produced by a filament heated to incandescence by an electric current. 10 CFR 430.2. This description depicts the method of producing light in a halogen lamp. In addition, paragraph (1) of the definition of “incandescent lamp” in 10 CFR 430.2 expressly includes tungsten halogen lamps. A halogen lamp (other than a halogen lamp that was a GSIL) within the definition of GSL as adopted in the energy conservation standards final rule would be subject to the test procedures proposed in this SNOPR if adopted. Test procedures for GSILs are located in appendix R to subpart B of part 430.

    China commented that section III.B of March 2016 GSL TP NOPR did not provide definitions for the eight general purpose lamps mentioned in Table III.1, making it difficult to distinguish between “other non-incandescent reflector type,” “general purpose incandescent,” “compact fluorescent lamps,” and “other types of fluorescent lamps.” China recommended that DOE use IEC 61231, which it stated is internationally accepted for classifying the types of lamps mentioned in Table III.1 of the March 2016 GSL TP NOPR. (China, No. 8 at pp. 1-2)

    Table III.1 of the March 2016 GSL TP NOPR referenced the test procedures that would be applicable to GSLs based on lamp technology: GSILs, CFLs, integrated LED lamps, other incandescent lamps that are not reflector lamps, other incandescent lamps that are reflector lamps, other fluorescent lamps, OLED lamps, and non-integrated LED lamps. 81 FR 14634. DOE notes that definitions for many of these lamp types either already exist in 10 CFR 430.2 or were proposed in the March 2016 GSL ECS NOPR. GSIL is currently defined at 10 CFR 430.2. A definition of CFL was proposed to be added to 10 CFR 430.2 in the July 2015 CFL TP NOPR. 80 FR at 45739. A definition of integrated LED lamp was recently added to 10 CFR 430.2 in the July 2016 LED TP final rule. 81 FR at 43426. The references to “other incandescent lamps” in Table III.1 were to lamps that meet the definition of GSL (as would be established in a GSL standards final rule) that are incandescent lamps other than GSILs. A definition of “reflector lamp” has been proposed in the March 2016 GSL ECS NOPR. 81 FR 14629. Regarding fluorescent lamps, reference to “other fluorescent lamps” in Table III.1 of the March 2016 GSL TP NOPR was to fluorescent lamps that meet the definition of GSL (to be finalized in the standards final rule) but do not meet the definition of CFL (which is another lamp type specifically included in the GSL term) or general service fluorescent lamp (which is a lamp type specifically excluded from the GSL term). DOE has proposed definitions for non-integrated lamp and OLED lamp in the March 2016 GSL ECS NOPR. 81 FR 14628-14629. Thus, DOE has tentatively determined that all of the various kinds of lamps included in this rulemaking have either existing or proposed definitions that sufficiently identify which test procedures are applicable to each kind of lamp.

    China commented that section III.B of the March 2016 GSL TP NOPR includes integrated and non-integrated LEDs, with corresponding test procedures. China pointed out that IEC 62838:2015 includes semi-integrated LEDs as well. China recommended that DOE include semi-integrated LEDs and their corresponding referenced test procedure. (China, No. 8 at p. 2) DOE notes that it has proposed definitions for integrated and non-integrated lamps in the March 2016 GSL ECS NOPR. 81 FR 14628. Under the proposed definitions of integrated lamp and non-integrated lamp, semi-integrated LEDs would be considered a type of non-integrated lamp because, as described in IEC 62838:2015, they require the use of some external components.

    China commented that section III.B of the March 2016 GSL TP NOPR referenced the integrated LED lamp test procedure in appendix BB of 10 CFR part 430 subpart B. However, China noted that this appendix is not yet published. China recommended that DOE publish the documents corresponding to this appendix. (China, No. 8 at p. 2) DOE notes that appendix BB of 10 CFR part 430 subpart B, containing the integrated LED test procedure, was adopted in the July 2016 LED TP final rule. 81 FR at 43427-43428.

    B. Proposed Method for Determining Initial Lumen Output, Input Power, Lamp Efficacy, and Power Factor

    As described in section III.A, both the statutory definition and proposed regulatory definition of GSL cover many types of lamps using a variety of lighting technologies. For several of the included lamp types, energy conservation standards and test procedures already exist. GSILs are required to comply with the energy conservation standards in 10 CFR 430.32(x), and test procedures for these lamps are in Appendix R to subpart B of 10 CFR part 430. In a separate test procedure rulemaking, DOE has proposed to amend the test procedures for MBCFLs and to establish new test procedures for all other CFLs. 80 FR 45724. Once finalized, the updated and new test procedures will appear at appendix W to subpart B of 10 CFR part 430. In addition, DOE recently issued test procedures for integrated LED lamps. 81 FR 43404. Although integrated LED lamps are not currently required to comply with energy conservation standards, DOE has proposed standards for them in the March 2016 GSL ECS NOPR. 81 FR 14530. The test procedures for integrated LED lamps will be located in new appendix BB to subpart B of 10 CFR part 430.

    If DOE test procedures already exist or were proposed in an ongoing rulemaking (such as for GSILs, CFLs, and integrated LED lamps), DOE proposed in the March 2016 GSL TP NOPR to reference those specific provisions in the GSL test procedures. For all other GSLs, DOE proposed new test procedures, intending to reference the most recently published versions of relevant industry standards. 81 FR 14631, 14633. Of the proposed test procedures, DOE received comments on those for non-integrated LED lamps, other fluorescent lamps, and other incandescent lamps that are reflector lamps.

    DOE received comments from three stakeholders regarding the proposed test procedures for non-integrated LED lamps. Private citizen Mat Roundy voiced support for DOE's proposed reference of CIE S 025/E:2015, stating that requiring manufacturers to use the same standard would improve effectiveness when implementing an energy conservation standard and promoting energy efficiency. (Roundy, No. 5 at p. 1) However, Osram Sylvania, Inc. (OSI) and the National Electrical Manufacturers Association (NEMA) commented that, although non-integrated LED lamps are not within the intended scope of IES LM-79-08, it is common industry practice to use IES LM-79-08 to test non-integrated LED lamps. NEMA and OSI both noted that the test procedure for ceiling fan light kits in appendix V1 to subpart B of 10 CFR 430 directs manufacturers to test other solid-state lighting (SSL) products using IES LM-79-08. NEMA and OSI therefore recommended that DOE allow manufacturers flexibility in choosing the test procedure for non-integrated lamps LED lamps. (OSI, No. 3 at p. 2; NEMA, No. 6 at p. 2)

    In proposing test procedures for non-integrated LED lamps in the March 2016 GSL TP NOPR, DOE reviewed existing industry standards. In its review DOE initially determined that IES LM-79-08 was not intended for non-integrated LED lamps given that LM-79-08 states in section 1.1 that the test method covers “LED-based SSL products with control electronics and heat sinks incorporated, that is, those devices that require only AC mains power or a DC voltage power supply to operate.” Non-integrated LED lamps require external electronics; that is, the lamps are intended to connect to ballasts/drivers rather than directly to the branch circuit through an ANSI base and corresponding ANSI standard lamp holder (socket). Because non-integrated LED lamps require external electronics, DOE tentatively determined that IES LM-79-08 was not appropriate for non-integrated LED lamps, and therefore would not be the most relevant industry standard for these lamps.

    Based on the comments received from NEMA and OSI, DOE investigated whether IES LM-79-08 is the more relevant test procedure for non-integrated LED lamps, regardless of the defined scope of the industry standard. In addition to the statements made by NEMA and OSI that IES LM-79-08 is relied upon by industry to test non-integrated lamps, DOE found one manufacturer of these products that states on its Web site that the performance specifications it reports are based on testing according to IES LM-79-08.6 Other manufacturers did not identify the test method used. DOE also contacted independent test laboratories to determine which test procedure they used. DOE found that the laboratories generally used IES LM-79-08 when testing non-integrated LED lamps because, even though it does not specifically include them, the laboratories view IES LM-79-08 as the most applicable industry standard. DOE preliminarily concluded that once it is determined how to supply the power to the lamp or on which ballast/driver to operate the lamp for testing, there is little difference in testing an integrated versus a non-integrated LED lamp. Further, DOE notes that some of these products have been tested and the results have been reported in the LED Lighting Facts Database and the qualified products list for the Lighting Design Lab. Both of these organizations specify IES LM-79-08 as a test method for all included products.

    6http://www.maxlite.com/item/lm79?=13PLG24QVLED27.

    Upon reviewing the available information, DOE has tentatively determined that for the testing of non-integrated LED lamps, IES LM-79-08 is the more relevant industry standard at the present time, as compared to CIE S 025/E:2015. Further, DOE has reviewed IES LM-79-08 and finds it appropriate for testing non-integrated LED lamps for the purpose of determining compliance with the applicable energy efficiency standards.

    However, because non-integrated LED lamps are not included in the applicable scope of this industry standard, DOE finds that additional instruction is necessary to ensure consistent and repeatable results. Specifically, DOE finds that IES LM-79-08 provides no information on which external ballast/driver or power supply to use for testing. After reviewing the approaches of independent test laboratories, DOE proposes that non-integrated LED lamps be tested according to IES LM-79-08, using the manufacturer-declared input voltage and current as the power supply. These quantities are typically not reported on the product packaging or in manufacturer literature. (DOE noted only two companies that do so.) DOE is therefore proposing to revise the requirements for certification reports to include these quantities for non-integrated LED lamps. While manufacturers usually list compatible ballasts/drivers for these products, DOE notes that it is unknown on which ballast/driver these lamps may operate when installed in the field. Furthermore, the test procedure should produce consistent and repeatable results. By requiring these lamps to be tested using the manufacturer-declared input voltage and current as the power supply, DOE's proposed approach is consistent with the industry practice of using reference ballasts for non-integrated lamps, such as non-integrated CFLs and GSFLs. For those products, industry standards (and DOE's test procedures) specify electrical settings for reference ballasts and each product is tested using those same settings. Because industry has not yet developed reference ballast/driver settings for non-integrated LED lamps, DOE proposes that the manufacturers report the settings that are used. The use of reference settings allows for a consistent and comparable assessment of the lamp's performance. Therefore, DOE proposes the requirement that non-integrated LED lamps be tested according to IES LM-79-08, using the manufacturer-declared input voltage and current as the power supply. DOE requests DOE requests comment on the appropriateness of referencing IES LM-79-08 for the testing of non-integrated LED lamps. DOE also requests comment on the proposed requirement that manufacturers report the settings used for testing, specifically input voltage and current, and whether additional settings are needed to ensure consistent, repeatable results. Finally, DOE requests comment on whether the manufacturer-declared settings should be made available to the public so that accurate comparisons across products could be made.

    Regarding the testing of other fluorescent lamps, OSI and NEMA commented that testing per sections 4 through 6 of IES LM-9-09 would be appropriate for double-ended fluorescent lamps, but questioned whether double-ended fluorescent lamps would be subject to the test procedures as these lamps would likely be considered general service fluorescent lamps, a type of lamp excluded from the definition of GSL. OSI suggested that sections 4 through 6 of IES LM-66-14 would be more applicable to cite as the test procedure for “other fluorescent lamps.” Specifically, OSI stated that IES LM-66-14 was the appropriate industry standard to reference for the commercially available induction lamps meeting the definition of GSL. (OSI, No. 3 at p. 2; NEMA, No. 6 at p. 3)

    DOE has proposed to define compact fluorescent lamp as an integrated or non-integrated single-base, low-pressure mercury, electric-discharge source in which a fluorescing coating transforms some of the ultraviolet energy generated by the mercury discharge into light; the term does not include circline or U shaped fluorescent lamps. 80 FR at 45739. This proposed definition of CFL aligns with the scope of IES LM-66-14, which states that it describes test procedures for obtaining measurements of single-based fluorescent lamps, including both electrode and electrodeless (i.e., induction) versions. The introduction of IES LM-66-14 states, as does DOE's definition of CFL, that it does not include circline or U-shaped fluorescent lamps. Thus, DOE has tentatively concluded that lamps meeting DOE's definition of CFL will be required to use test procedures in appendix W to subpart B of 10 CFR 430, which predominantly references IES LM-66-14 for test methods. DOE expects that single-based fluorescent lamps that are GSLs will be within the definition of CFL, and thus subject to the test procedures that reference IES LM-66-14.

    While DOE is unaware of any lamps currently on the market that would be subject to testing as “other fluorescent lamps,” test procedures must be established for all potentially covered products. To address other fluorescent lamps that would not meet the definition of CFL but would otherwise be defined as GSLs (i.e., double-ended fluorescent lamps), DOE has maintained the reference to IES LM-9-09 in this SNOPR.

    OSI and NEMA supported the use of IES LM-20-13 for other incandescent lamps that are reflector lamps, but disagreed with referencing sections 4 through 8, especially section 7, as well as the lack of specific instructions to deviate from IES LM-20-13. OSI and NEMA noted that the March 2016 GSL ECS NOPR did not propose any requirements for beam angle, beam lumens, center beam candlepower, or beam pattern classification (the lamp characteristics measured under the test procedures in section 7 of IES LM-20-13) and thus recommended omitting reference to this section. NEMA also expressed confusion regarding DOE's inclusion of section 7, wondering whether its inclusion was an indication that goniophotometer systems may be allowed to measure luminous flux. NEMA recommended instead that DOE reference Appendix R to subpart B of 10 CFR 430 (test procedures for incandescent reflector lamps) for the testing of other incandescent lamps that are reflector lamps. (NEMA, No. 6 at p. 3)

    For this SNOPR, DOE again reviewed the referenced sections (i.e., sections 4 through 8) of IES LM-20-13. DOE agrees that referencing section 7 of LM-20-13 is unnecessary because it addresses the measurement of values for which standards have not been proposed, such as beam angle, field angle, and beam flux values. Furthermore, section 7 specifies the use of a goniophotometer. As proposed in the March 2016 GSL TP NOPR and maintained in this document, the active mode test procedure does not allow the use of a goniophotometer. For these reasons, the reference to section 7 of IES LM-20-13 has been removed from the test procedure in this SNOPR.

    DOE has determined not to reference appendix R for the testing of other incandescent lamps that are reflector lamps. DOE notes that the content of the referenced sections (sections 4, 5, 6, and 8) of IES LM-20-13 are consistent with the content of the sections of IES LM-20-94 referenced in appendix R. However, DOE has chosen not to reference Appendix R in order to avoid potential confusion; appendix R is applicable to incandescent reflector lamps but these lamps are not included in the definition of GSL. Therefore, for GSLs that are other incandescent lamps that are reflector lamps, DOE proposes referencing sections 4, 5, 6, and 8 of IES LM-20-13.

    DOE did not receive any comments on referring to appendix R for general service incandescent lamps, to Appendix BB for integrated LED lamps, to IES LM-45-15 for other incandescent lamps that are not reflector lamps, or to IES LM-79-08 for OLED lamps. DOE did, however, review all references to industry standards to ensure that only necessary sections were referenced, as described in the previous paragraph. DOE removed all references to sections describing luminous intensity and/or color measurements as these are not necessary for the metrics covered by the test procedure. DOE also made references to IES LM-79-08 consistent with sections referenced in the July 2016 LED TP final rule; that is, DOE added a reference to section 1.3 (Nomenclature and Definitions) and removed the reference to section 6.0 (Operating Orientation). DOE instead specifies the appropriate operating orientation directly in appendix DD. DOE requests comment on the industry standards and sections of the industry standards referenced.

    Table III.1—Test Procedures for General Service Lamps Lamp type Referenced test procedure General service incandescent lamps Appendix R to Subpart B of 10 CFR 430. Compact fluorescent lamps Appendix W to Subpart B of 10 CFR part 430. Integrated LED lamps Appendix BB to Subpart B of 10 CFR part 430. Other incandescent lamps that are not reflector lamps IES LM-45-15, sections 4-6, and section 7.1. Other incandescent lamps that are reflector lamps IES LM-20-13, sections 4-6, and section 8. Other fluorescent lamps IES LM-9-09, sections 4-6, and section 7.5. OLED lamps IES LM-79-08, sections 1.3 (except 1.3[f]), 2.0, 3.0, 5.0, 7.0, 8.0, 9.1 and 9.2. Non-integrated LED lamps IES LM-79-08, sections 1.3 (except 1.3[f]), 2.0, 3.0, 5.0, 7.0, 8.0, 9.1 and 9.2. C. Laboratory Accreditation

    In the March 2016 GSL TP NOPR, DOE proposed to require that testing of initial lumen output, input power, lamp efficacy, power factor, and standby mode power (if applicable) for GSLs be conducted by test laboratories accredited by the National Voluntary Laboratory Accreditation Program (NVLAP) or an accrediting organization recognized by the International Laboratory Accreditation Cooperation (ILAC). DOE tentatively determined that since NVLAP is a member of ILAC, test data collected by any laboratory accredited by an accrediting body recognized by ILAC would be acceptable. 81 FR 14634. DOE noted that under existing test procedure regulations, testing for other regulated lighting products (such as general service fluorescent lamps, incandescent reflector lamps, and fluorescent lamp ballasts), in addition to general service lamps that must already comply with energy conservation standards (such as general service incandescent lamps and medium base compact fluorescent lamps), must be conducted in a similarly accredited facility. 10 CFR 430.25.

    DOE received several comments regarding lab accreditation. OSI and NEMA disagreed with what they understood to be DOE's shift from the use of test laboratories accredited by NVLAP or an accrediting organization recognized by NVLAP, to test laboratories accredited by an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA). Citing to a 2013 version of the regulations, NEMA commented that the March 2016 GSL TP NOPR did not adequately explain why the non-GSL portions of the existing regulation needed to be changed. (NEMA, No. 6 at p. 3)

    The comments received suggest that some commenters may not be familiar with the current regulatory text with regard to requirements for test laboratories. DOE notes that it did not propose to change the existing regulation as it relates to non-GSLs, but simply to include the testing of GSLs in the existing regulatory provision. The existing text in 10 CFR 430.25 states that the enumerated lamp types, including general service fluorescent lamps and incandescent reflector lamps (which are not general service lamps), must be tested by laboratories accredited by “an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA).” The discussion regarding NVLAP in the preamble to the 2016 March GSL TP NOPR was intended to clarify that testing could be conducted by a test laboratory accredited by NVLAP given that NVLAP is a signatory member to the ILAC MRA. 81 FR 14634.

    TÜV SÜD commented that the proposed language for § 429.57(b)6, which requires each test report to include an NVLAP identification number or other NVLAP-approved identification, contradicts § 430.25, which requires testing to be performed in a laboratory accredited by an ILAC member. TÜV SÜD elaborated that this prevents laboratories accredited by, for example, SCC (Canada) or DAkks (Germany) from issuing a report with an NVLAP identification number unless it has another accreditation with NVLAP. TÜV SÜD recommended that DOE update the relevant portion of § 429.57(b)6 to read, “ . . . ILAC's accreditation bodies identification number or other ILAC accreditation bodies—approved identification . . . ” (TÜV SÜD, No. 2 at p. 1) DOE agrees with this comment and is proposing to update the language in § 429.57(b) to be consistent with § 430.25 and to include the recommended text. Similarly, DOE also proposes to update §§ 429.27(b) and 429.35(b) to be consistent with § 430.25.

    UL commented that luminous efficacy results from lamp testing can range from +25% to −25% due to variations in laboratory accuracy and precision, which represents a significant range in the context of the efficacy levels proposed in the March 2016 GSL ECS NOPR. UL further commented that NVLAP accreditation is an accepted means to minimize variability between different labs. UL noted that NVLAP is an ILAC member, but NVLAP also requires participation in the National Institute of Standards and Technology (NIST) proficiency-testing program for SSL, which assists labs in improving and maintaining measurement accuracy and precision. UL recommended that DOE require any lab accredited by an ILAC member, other than NVLAP, to participate in the NIST SSL proficiency program. UL noted that this has been a requirement of the ENERGY STAR SSL program for many years. (UL, No. 4 at p. 2)

    DOE notes that ISO/IEC 17025 states that a laboratory shall have quality control procedures for monitoring the validity of tests and calibrations undertaken.7 This monitoring may include the participation in inter-laboratory comparisons or proficiency testing programs. Other means may include the regular use of reference materials, or replicate tests or calibrations using the same or different methods. By these mechanisms a laboratory can provide evidence of its competence to its clients, parties and accreditation bodies. Participation in proficiency testing is not required to become an ILAC signatory. However, ILAC and many of the accreditation bodies that are signatories of the MRA encourage participation in proficiency testing or inter-laboratory comparisons.8 Therefore, DOE has tentatively concluded that requiring participation in proficiency testing is unnecessary, as the accreditation process is designed to ensure the competency of the testing laboratory through a variety of mechanisms.

    7http://ilac.org/news/ilac-p9062014-published/.

    8http://ilac.org/ilac-mra-and-signatories/purpose/.

    NEMA recommended not deleting references to other products and applicable test methods, such as the following quoted portion: “The testing for general service fluorescent lamps, general service incandescent lamps, and incandescent reflector lamps shall be performed in accordance with Appendix R to this subpart. The testing for medium base compact fluorescent lamps shall be performed in accordance with appendix W of this subpart.” (NEMA, No. 6 at p. 3)

    It appears that in its comments NEMA is referencing a prior version of 10 CFR 430.25. An amendment was made to 10 CFR 430.25 on June 5, 2015. 80 FR 31982. DOE notes that the text cited by NEMA does not currently exist in 10 CFR 430.25 and that the testing provisions are specified in 10 CFR 430.23.

    D. Effective Date and Compliance Dates

    DOE received comments regarding the compliance date proposed in the March 2016 GSL TP NOPR. OSI and NEMA commented that the 180-day compliance date places an undue burden on manufacturers. OSI and NEMA commented that until there is a need to comply with an efficacy standard, mandatory testing in CIE S 025 accredited laboratories would be an excessive requirement. NEMA commented that this burden is exacerbated given that many of the products proposed to be tested to CIE S 025 will likely not be compliant with 2020 standards and thus will cease manufacture and sales, causing a lost certification/accreditation investment. (OSI, No. 3 at pp. 3-4; NEMA, No. 6 at pp. 3-4)

    As discussed in section III.B, DOE is not incorporating CIE S 025 by reference and therefore tentatively concludes that the compliance date will not introduce unnecessary burden. As noted previously, the referenced industry standard, IES LM-79-08, represents common industry practice for testing non-integrated LED lamps.

    If adopted, the test procedures proposed in this SNOPR for GSLs that are not integrated LED lamps, CFLs, or GSILs, would be effective 30 days after publication in the Federal Register (referred to as the “effective date”). Pursuant to EPCA, manufacturers of covered products would be required to use the applicable test procedure as the basis for determining that their products comply with the applicable energy conservation standards. (42 U.S.C. 6295(s)) On or after 180 days after publication of a final rule, any representations made with respect to the energy use or efficiency of GSLs that are not integrated LED lamps, CFLs, and GSILs would be required to be made in accordance with the results of testing pursuant to the new test procedures. (42 U.S.C. 6293(c)(2))

    DOE proposes that after the effective date and prior to the compliance date of a GSL test procedure final rule, manufacturers may voluntarily begin to make representations with respect to the energy use or efficiency of GSLs that are not integrated LED lamps, CFLs, and GSILs and when doing so must use the results of testing pursuant to that final rule.

    IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866

    The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.

    B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003 to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

    DOE reviewed the test procedures for GSLs proposed in this SNOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is set forth in the following paragraphs.

    The Small Business Administration (SBA) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes are established by the North American Industry Classification System (NAICS). Manufacturing of GSLs is classified under NAICS 335110, “Electric Lamp Bulb and Part Manufacturing.” The SBA sets a threshold of 1,250 employees or less for an entity to be considered as a small business for this category.

    In the March 2016 GSL TP NOPR, to estimate the number of companies that could be small businesses that sell GSLs, DOE conducted a market survey using publicly available information. DOE's research involved information provided by trade associations (e.g., the National Electrical Manufacturers' Association) and information from DOE's Compliance Certification Management System (CCMS) Database, the Environmental Protection Agency's ENERGY STAR Certified Light Bulbs Database, LED Lighting Facts Database, previous rulemakings, individual company Web sites, SBA's database, and market research tools (e.g., Hoover's reports). DOE screened out companies that did not meet the definition of a “small business” or are completely foreign owned and operated. DOE identified approximately 118 small businesses that sell GSLs in the United States. 81 FR 14635.

    For this SNOPR, DOE reviewed its estimated number of small businesses. DOE updated its list of small businesses by revisiting the information sources described in this preamble. DOE screened out companies that do not meet the definition of a “small business,” or are completely foreign owned and operated. DOE determined that nine companies are small businesses that maintain domestic production facilities for general service lamps.

    In the March 2016 GSL TP NOPR, DOE proposed test procedures for determining initial lumen output, input power, lamp efficacy, power factor, and standby power of GSLs. DOE noted that several of the lamp types included in the definition of general service lamp must already comply with energy conservation standards and therefore test procedures already existed for these lamps. If DOE test procedures already existed or were proposed in an ongoing rulemaking (such as for general service incandescent lamps, compact fluorescent lamps, and integrated LED lamps), DOE proposed to reference them directly. For all other general service lamps, DOE proposed new test procedures in the March 2016 GSL TP NOPR. For the new test procedures, DOE proposed to reference the most recent versions of relevant industry standards.

    DOE estimated the testing costs and burden associated with conducting testing according to the new test procedures proposed in the March 2016 GSL TP NOPR for general service lamps. DOE did not consider the costs and burdens associated with DOE test procedures that already exist or that have been proposed in other ongoing rulemakings because these have been or are being addressed separately. DOE also assessed elements (testing methodology, testing times, and sample size) in the proposed CFL and integrated LED lamp test procedures that could affect costs associated with complying with this rule. Except for lab accreditation costs associated with CIE S 025/E:2015, which has been replaced with IES LM-79-08, the cost estimates of this SNOPR are the same as those determined under the March 2016 GSL TP NOPR. The following is an analysis of both in-house and third party testing costs associated with this rulemaking.

    In the March 2016 GSL TP NOPR, DOE estimated that the labor costs associated with conducting in-house testing of initial lumen output, input power, and standby mode power were $41.68 per hour. DOE determined that calculating efficacy and power factor of a GSL would not result in any incremental testing burden beyond the cost of conducting the initial lumen output and input power testing. The cost of labor was then calculated by multiplying the estimated hours of labor by the hourly labor rate. For lamps not capable of operating in standby mode, DOE estimated that testing in-house in accordance with the appropriate proposed test procedure would require, at most, four hours per lamp by an electrical engineering technician. For lamps capable of operating in standby mode, DOE estimated that testing time would increase to five hours per lamp due to the additional standby mode power consumption test. DOE noted that these estimates are representative of the time it would take to test the most labor intensive technology, LED lamps. In total, DOE estimated that using the test method prescribed in the March 2016 GSL TP NOPR to determine initial light output and input power would result in an estimated labor burden of $1,670 per basic model of certain GSLs and $2,080 per basic model of certain GSLs that can operate in standby mode.

    Because accreditation bodies 9 impose a variety of fees during the accreditation process, including fixed administrative fees, variable assessment fees, and proficiency testing fees, DOE included as an example the costs associated with maintaining a NVLAP-accredited facility or a facility accredited by an organization recognized by NVLAP in the March 2016 GSL TP NOPR. In the first year, for manufacturers without NVLAP accreditation who choose to test in-house, DOE estimated manufacturers on average would experience a maximum total cost burden of about $2,210 per basic model tested or $2,630 per basic model with standby mode power consumption testing.10

    9 As discussed in section III.D, laboratories can be accredited by any accreditation body that is a signatory member to the ILAC MRA. DOE based its estimate of the costs associated with accreditation on the NVLAP accreditation body.

    10 NVLAP costs are fixed and were distributed based on an estimate of 28 basic models per manufacturer.

    Additionally, DOE requested pricing from independent testing laboratories for testing GSLs. DOE estimated the cost for testing at an independent laboratory to be up to $1,070 per basic model. This estimate included the cost of accreditation as quotes were obtained from accredited laboratories.

    DOE received comments from NEMA and OSI regarding the burden of testing non-integrated LED lamps in laboratories accredited to CIE standard CIE S 025/E:2015. NEMA and OSI commented that the small product sector of non-integrated LED lamps did not justify accrediting a lab to the CIE standard for such limited testing needs. (OSI, No. 3 at p. 2; NEMA, No. 6 at p. 2) They noted that the test facilities generally used by the lighting industry are not accredited for this referenced CIE test method, and would need to obtain and maintain this accreditation. OSI and NEMA commented that certifying a lab to CIE S 025 could cost approximately $10,000.00, which would be burdensome for all labs, regardless of size. OSI and NEMA noted that the current cost for CIE S 025/E:2015 is $241.00, compared to $25.00 for IES LM-79-08. OSI and NEMA further stated that the cost of the normative standards associated with CIE S 025/E:2015 must also be considered, including CIE 84-1989, which costs €98.46 and is not currently available from familiar sources. OSI and NEMA believe these costs could be burdensome for a small manufacturer. (OSI, No. 3 at pp. 3-4; NEMA, No. 6 at pp. 3-4)

    As discussed in section III.B, DOE is no longer referencing CIE S 025 to test non-integrated LED lamps. Instead, DOE proposes to reference IES LM-79-08 which is also referenced for the testing of integrated LED lamps and OLED lamps. Because labs are already required to be accredited to IES LM-79-08 for testing integrated LED lamps per DOE's test procedure in Appendix BB and per ENERGY STAR's Lamps specification, DOE believes the majority of manufacturers and independent laboratories already have this accreditation. Therefore, DOE does not believe it is unduly burdensome to manufacturers or independent laboratories to be properly accredited to this standard.

    DOE notes that its proposed test procedures directly reference existing industry standards that have been approved for widespread use by lamp manufacturers and test laboratories. The quantities that are directly measured, namely initial lumen output and input power, are commonly reported by the manufacturer on product packaging and on product specification sheets. Thus, testing for these quantities is already being conducted. Additionally, these quantities are required to be reported to ENERGY STAR if manufacturers certify the lamps as meeting the program requirements. Standby mode power consumption is also a reported quantity for the ENERGY STAR program, though it may not be a commonly reported value for lamps that are not certified with ENERGY STAR. In reviewing the lamps for which DOE proposes new test procedures in this rulemaking, DOE notes that very few products can operate in standby mode and therefore very few products would be required to make representations of standby mode energy consumption. Although DOE has proposed the requirement that all testing be conducted in accredited laboratories, DOE believes that many manufacturers of these products have already accredited their own in-house laboratories because they also make products such as general service incandescent lamps and medium base compact fluorescent lamps that are required to be tested in similarly accredited laboratories.

    In summary, DOE does not consider the test procedures proposed in this SNOPR to have a significant economic impact on small entities. The final cost per manufacturer primarily depends on the number of basic models the manufacturer sells. These are not annual costs because DOE does not require manufacturers to retest a basic model annually. The initial test results used to generate a certified rating for a basic model remain valid as long as the basic model has not been modified from the tested design in a way that makes it less efficient or more consumptive, which would require a change to the certified rating. If a manufacturer has modified a basic model in a way that makes it more efficient or less consumptive, new testing is required only if the manufacturer wishes to make representations of the new, more efficient rating.

    Based on the criteria outlined earlier and the reasons discussed in this preamble, DOE tentatively concludes and certifies that the new proposed test procedures would not have a significant economic impact on a substantial number of small entities, and the preparation of an IRFA is not warranted. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

    C. Review Under the Paperwork Reduction Act of 1995

    DOE established regulations for the certification and recordkeeping requirements for certain covered consumer products and commercial equipment. 10 CFR part 429, subpart B. This collection-of-information requirement was approved by OMB under OMB control number 1910-1400.

    DOE requested OMB approval of an extension of this information collection for three years, specifically including the collection of information proposed in the present rulemaking, and estimated that the annual number of burden hours under this extension is 30 hours per company. In response to DOE's request, OMB approved DOE's information collection requirements covered under OMB control number 1910-1400 through November 30, 2017. 80 FR 5099 (January 30, 2015).

    Notwithstanding any other provision of the law, no person is required to respond to, nor must any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

    D. Review Under the National Environmental Policy Act of 1969

    In this proposed rule, DOE proposes test procedures for certain categories of GSLs that will be used to support the ongoing GSL standards rulemaking. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this proposed rule adopts existing industry test procedures for certain categories of general service lamps, so it will not affect the amount, quality or distribution of energy usage, and, therefore, will not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A6 under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

    E. Review Under Executive Order 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and determined that it will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

    F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.

    G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this proposed rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

    H. Review Under the Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations Act, 1999 (Public Law 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

    I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

    J. Review Under Treasury and General Government Appropriations Act, 2001

    Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

    K. Review Under Executive Order 13211

    Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

    This regulatory action to propose test procedures for certain categories of GSLs is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

    L. Review Under Section 32 of the Federal Energy Administration Act of 1974

    Under section 301 of the Department of Energy Organization Act (Public Law 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.

    The proposed test procedures for certain categories of GSLs incorporate testing methods contained in certain sections of the following commercial standards:

    (1) IES LM-45-15, “IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps,” 2015;

    (2) IES LM-20-13, “IES Approved Method for Photometry of Reflector Type Lamps,” 2013;

    (3) IES LM-79-08, “Approved Method: Electrical and Photometric Measurements of Solid-State Lighting Products,” 2008;

    (4) IES LM-9-09, “IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps,” 2009; and

    (5) IEC Standard 62301 (Edition 2.0), “Household electrical appliances—Measurement of standby power,” 2011.

    DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (i.e., that they were developed in a manner that fully provides for public participation, comment, and review.) DOE will consult with both the Attorney General and the Chairman of the FTC concerning the impact of these test procedures on competition, prior to prescribing a final rule.

    M. Description of Materials Incorporated by Reference

    In this SNOPR, DOE proposes to incorporate by reference certain sections of the test standard published by IEC, titled “Household electrical appliances—Measurement of standby power (Edition 2.0),” IEC 62301-DD. IEC 62301-DD is an industry accepted test standard that describes measurements of electrical power consumption in standby mode, off mode, and network mode. The test procedures proposed in this SNOPR reference sections of IEC 62301-DD for testing standby mode power consumption of GSLs. IEC 62301-DD is readily available on IEC's Web site at https://webstore.iec.ch/home.

    DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps,” IES LM-9-09-DD. IES LM-9-09-DD is an industry accepted test standard that specifies procedures to be observed in performing measurements of electrical and photometric characteristics of fluorescent lamps under standard conditions. The test procedures proposed in this SNOPR reference sections of IES LM-9-09-DD for performing electrical and photometric measurements of other fluorescent lamps. IES LM-9-09-DD is readily available on IES's Web site at www.ies.org/store/.

    DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for Photometry of Reflector Type Lamps,” IES LM-20-13. IES LM-20-13 is an industry accepted test standard that specifies photometric test methods for reflector lamps. The test procedures proposed in this SNOPR reference sections of IES LM-20-13 for performing electrical and photometric measurements of other incandescent lamps that are reflector lamps. IES LM-20-13 is readily available on IES's Web site at www.ies.org/store.

    DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps,” IES LM-45-15. IES LM-45-15 is an industry accepted test standard that specifies procedures to be observed in performing measurements of electrical and photometric characteristics of general service incandescent filament lamps under standard conditions. The test procedures proposed in this SNOPR reference sections of IES LM-45-15 for performing electrical and photometric measurements of other incandescent lamps that are not reflector lamps. IES LM-45-15 is readily available on IES's Web site at www.ies.org/store/.

    DOE also proposes to incorporate by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of Solid-State Lighting Products,” IES LM-79-08-DD. IES LM-79-08-DD is an industry accepted test standard that specifies electrical and photometric test methods for solid-state lighting products. The test procedures proposed in this SNOPR reference sections of IES LM-79-08-DD for performing electrical and photometric measurements of OLED lamps and non-integrated LED lamps. IES LM-79-08 is readily available on IES's Web site at www.ies.org/store.

    V. Public Participation A. Submission of Comments

    DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DATES section at the beginning of this SNOPR. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this SNOPR.

    Submitting comments via www.regulations.gov. The www.regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

    However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

    Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

    DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.

    Submitting comments via email, hand delivery, or mail. Comments and documents submitted via email, hand delivery, or mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

    Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

    Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

    Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

    Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    B. Issues on Which DOE Seeks Comment

    Although comments are welcome on all aspects of this proposed rulemaking, DOE is particularly interested in comments on the following issues.

    (1) DOE requests comment on the appropriateness of referencing IES LM-79-08 for the testing of non-integrated LED lamps. DOE also requests comment on the proposed requirement that manufacturers report the settings used for the testing of non-integrated LED lamps, specifically input voltage and current, and whether additional settings are needed to ensure consistent, repeatable results. DOE requests comment on whether the manufacturer-declared settings should be made available to the public so that accurate comparisons across products could be made.

    (2) DOE requests comment on the industry standards and sections of the industry standards referenced in its proposed test methods.

    VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed rule.

    List of Subjects 10 CFR Part 429

    Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Reporting and recordkeeping requirements.

    10 CFR Part 430

    Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.

    Issued in Washington, DC, on July 8, 2016. Steven G. Chalk, Deputy Assistant Secretary for Operations, Energy Efficiency and Renewable Energy.

    For the reasons stated in the preamble, DOE proposes to amend parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

    PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 429 continues to read as follows: Authority:

    42 U.S.C. 6291-6317.

    2. Section 429.27 is amended by revising paragraphs (b)(2)(i), (ii) and (iii) to read as follows:
    § 429.27 General service fluorescent lamps, general service incandescent lamps, and incandescent reflector lamps.

    (b) * * *

    (2) * * *

    (i) General service fluorescent lamps. The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, production dates of the units tested, the 12-month average lamp efficacy in lumens per watt (lm/W), lamp wattage (W), correlated color temperature in Kelvin (K), and the 12-month average Color Rendering Index (CRI).

    (ii) Incandescent reflector lamps. The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, production dates of the units tested, the 12-month average lamp efficacy in lumens per watt (lm/W), and lamp wattage (W).

    (iii) General service incandescent lamps, The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, production dates of the units tested, the 12-month average maximum rate wattage in watts (W), the 12-month average minimum rated lifetime (hours), and the 12-month average Color Rendering Index (CRI).

    3. Section 429.35 is amended by revising paragraph (b)(2) to read as follows:
    § 429.35 Bare or covered (no reflector) medium base compact fluorescent lamps.

    (b) * * *

    (2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, the minimum initial efficacy in lumens per watt (lm/W), the lumen maintenance at 1,000 hours in percent (%), the lumen maintenance at 40 percent of rated life in percent (%), the rapid cycle stress test in number of units passed, and the lamp life in hours (h).

    4. Section 429.57 is added to read as follows:
    § 429.57 General service lamps.

    (a) Determination of represented value. Manufacturers must determine represented values, which includes certified ratings, for each basic model of general service lamp in accordance with following sampling provisions.

    (1) The requirements of § 429.11 are applicable to general service lamps, and

    (2) For general service incandescent lamps, use § 429.27(a);

    (3) For compact fluorescent lamps, use § 429.35(a);

    (4) For integrated LED lamps, use § 429.56(a);

    (5) For other incandescent lamps, use § 429.27(a);

    (6) For other fluorescent lamps, use § 429.35(a); and

    (7) For OLED lamps and non-integrated LED lamps, use § 429.56(a).

    (b) Certification reports. (1) The requirements of § 429.12 are applicable to general service lamps;

    (2) Values reported in certification reports are represented values;

    (3) For general service incandescent lamps, use § 429.27(b);

    (4) For compact fluorescent lamps, use § 429.35(b);

    (5) For integrated LED lamps, use § 429.56(b); and

    (6) For other incandescent lamps, for other fluorescent lamps, for OLED lamps and non-integrated LED lamps, pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, initial lumen output, input power, lamp efficacy, and power factor. For non-integrated LED lamps, the certification report must also include the input voltage and current used for testing.

    (c) Rounding requirements. (1) Round input power to the nearest tenth of a watt.

    (2) Round initial lumen output to three significant digits.

    (3) Round lamp efficacy to the nearest tenth of a lumen per watt.

    (4) Round power factor to the nearest hundredths place.

    (5) Round standby mode power to the nearest tenth of a watt.

    PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS 5. The authority citation for part 430 continues to read as follows: Authority:

    42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

    6. Section 430.3 is amended by: a. Redesignating paragraph (o)(3) as (o)(4); b. Adding paragraph (o)(3); c. Redesignating paragraph (o)(4) as (o)(5); d. Redesignating paragraph (o)(5) as (o)(7); e. Redesignating paragraph (o)(6) as (o)(9); e. Adding new paragraph (o)(6); f. Redesignating paragraph (o)(8) as (o)(11); g. Adding new paragraph (o)(8); f. Redesignating paragraphs (o)(7) and (o)(9) as (o)(10) and (o)(12); and g. Adding paragraphs (o)(13) and (p)(6).

    The additions read as follows:

    § 430.3 Materials incorporated by reference.

    (o) * * *

    (3) IES LM-9-09 (“IES LM-9-09-DD”), IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps, approved January 31, 2009; IBR approved for appendix DD to subpart B, as follows:

    (i) Section 4—Ambient and Physical Conditions;

    (ii) Section 5—Electrical Conditions;

    (iii) Section 6—Lamp Test Procedures; and

    (iv) Section 7—Photometric Test Procedures: Section 7.5—Integrating Sphere Measurement.

    (6) IES LM-20-13, IES Approved Method for Photometry of Reflector Type Lamps, approved February 4, 2013; IBR approved for appendix DD to subpart B, as follows:

    (i) Section 4—Ambient and Physical Conditions;

    (ii) Section 5—Electrical and Photometric Test Conditions;

    (iii) Section 6—Lamp Test Procedures; and

    (iv) Section 8—Total Flux Measurements by Integrating Sphere Method.

    (8) IES LM-45-15, IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps, approved August 8, 2015; IBR approved for appendix DD to subpart B as follows:

    (i) Section 4—Ambient and Physical Conditions;

    (ii) Section 5—Electrical Conditions;

    (iii) Section 6—Lamp Test Procedures; and

    (iv) Section 7—Photometric Test Procedures: Section 7.1—Total Luminous Flux Measurements with an Integrating Sphere.

    (13) IES LM-79-08 (“IES LM-79-08-DD”), IES Approved Method for the Electrical and Photometric Measurement of Solid-State Lighting Products, approved January 31, 2009; IBR approved for appendix DD to subpart B as follows:

    (i) Section 1.3—Nomenclature and Definitions (except section 1.3[f]);

    (ii) Section 2.0—Ambient Conditions;

    (iii) Section 3.0—Power Supply Characteristics;

    (iv) Section 5.0—Stabilization of SSL Product;

    (v) Section 7.0—Electrical Settings;

    (vi) Section 8.0—Electrical Instrumentation;

    (vii) Section 9—Test Methods for Total Luminous Flux measurement: Section 9.1 Integrating Sphere with a Spectroradiometer (Sphere-spectroradiometer System); and

    (viii) Section 9—Test Methods for Total Luminous Flux measurement: Section 9.2—Integrating Sphere with a Photometer Head (Sphere-photometer System).

    (p) * * *

    (6) IEC 62301, (“IEC 62301-DD”), Household electrical appliances—Measurement of standby power, (Edition 2.0, 2011-01); IBR approved for appendix DD to subpart B as follows:

    (i) Section 5—Measurements.

    7. Section 430.23 is amended by adding paragraph (ff) to read as follows:
    § 430.23 Test procedures for the measurement of energy and water consumption.

    (ff) General Service Lamps. (1) For general service incandescent lamps, measure lamp efficacy in accordance with paragraph (r) of this section.

    (2) For compact fluorescent lamps, measure lamp efficacy, lumen maintenance at 1,000 hours, lumen maintenance at 40 percent of lifetime, rapid cycle stress, time to failure, power factor, CRI, start time, and standby mode power in accordance with paragraph (y) of this section.

    (3) For integrated LED lamps, measure lamp efficacy, power factor, and standby mode power in accordance with paragraph (ee) of this section.

    (4) For other incandescent lamps, measure initial light output, input power, lamp efficacy, power factor, and standby mode power in accordance with appendix DD of this subpart.

    (5) For other fluorescent lamps, measure initial light output, input power, lamp efficacy, power factor, and standby mode power in accordance with appendix DD of this subpart.

    (6) For OLED and non-integrated LED lamps, measure initial light output, input power, lamp efficacy, power factor, and standby mode power in accordance with appendix DD of this subpart.

    8. Section 430.25 is revised to read as follows:
    § 430.25 Laboratory Accreditation Program.

    The testing for general service fluorescent lamps, general service lamps (with the exception of applicable lifetime testing), incandescent reflector lamps, and fluorescent lamp ballasts must be conducted by test laboratories accredited by an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA). A manufacturer's or importer's own laboratory, if accredited, may conduct the applicable testing.

    9. Appendix DD to subpart B of part 430 is added to read as follows: Appendix DD to Subpart B of Part 430—Uniform Test Method for Measuring the Energy Consumption and Energy Efficiency of General Service Lamps that are not General Service Incandescent Lamps, Compact Fluorescent Lamps, or Integrated LED Lamps. Note:

    On or after [INSERT DATE 180 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], any representations, including certifications of compliance (if required), made with respect to the energy use or efficiency of general service lamps that are not general service incandescent lamps, compact fluorescent lamps, or integrated LED lamps must be made in accordance with the results of testing pursuant to this appendix DD.

    1. Scope: This appendix DD specifies the test methods required to measure the initial lumen output, input power, lamp efficacy, power factor, and standby mode energy consumption of general service lamps that are not general service incandescent lamps, compact fluorescent lamps, or integrated LED lamps.

    2. Definitions:

    Measured initial input power means the input power to the lamp, measured after the lamp is stabilized and seasoned (if applicable), and expressed in watts (W).

    Measured initial lumen output means the lumen output of the lamp measured after the lamp is stabilized and seasoned (if applicable), and expressed in lumens (lm).

    Power factor means the measured initial input power (watts) divided by the product of the input voltage (volts) and the input current (amps) measured at the same time as the initial input power.

    3. Active Mode Test Procedures

    3.1. Take measurements at full light output.

    3.2. Do not use a goniophotometer.

    3.3. For OLED and non-integrated LED lamps, position a lamp in either the base-up and base-down orientation throughout testing. An equal number of lamps in the sample must be tested in the base-up and base-down orientations, except that, if the manufacturer restricts the position, test all of the units in the sample in the manufacturer-specified position.

    3.4. Operate the lamp at the rated voltage throughout testing. For lamps with multiple rated voltages including 120 volts, operate the lamp at 120 volts. If a lamp is not rated for 120 volts, operate the lamp at the highest rated input voltage. For non-integrated LED lamps, operate the lamp at the manufacturer-declared input voltage and current.

    3.5. Operate the lamp at the maximum input power. If multiple modes occur at the same maximum input power (such as variable CCT or CRI), the manufacturer may select any of these modes for testing; however, all measurements must be taken at the same selected mode. The manufacturer must indicate in the test report which mode was selected for testing and include detail such that another laboratory could operate the lamp in the same mode.

    3.6. To measure initial lumen output, input power, input voltage, and input current use the test procedures in the table in this section.

    Table 3.1—References to Industry Standard Test Procedures Lamp type Referenced test procedure General service incandescent lamps Appendix R to Subpart B of 10 CFR part 430. Compact fluorescent lamps Appendix W to Subpart B of 10 CFR part 430. Integrated LED lamps Appendix BB to Subpart B of 10 CFR part 430. Other incandescent lamps that are not reflector lamps IES LM-45-15, sections 4-6, and section 7.1. Other incandescent lamps that are reflector lamps IES LM-20-13, sections 4-6, and section 8. Other fluorescent lamps IES LM-9-09-DD, sections 4-6, and section 7.5. OLED lamps IES LM-79-08-DD, sections 1.3 (except 1.3[f]), 2.0, 3.0, 5.0, 7.0, 8.0, 9.1 and 9.2. Non-integrated LED lamps IES LM-79-08-DD, sections 1.3 (except 1.3[f]), 2.0, 3.0, 5.0, 7.0, 8.0, 9.1 and 9.2. * (incorporated by reference, see § 430.3)

    3.7. Determine initial lamp efficacy by dividing the measured initial lumen output (lumens) by the measured initial input power (watts).

    3.8. Determine power factor by dividing the measured initial input power (watts) by the product of the measured input voltage (volts) and measured input current (amps).

    4. Standby Mode Test Procedure

    4.1. Measure standby mode power only for lamps that are capable of standby mode operation.

    4.2. Connect the lamp to the manufacturer-specified wireless control network (if applicable) and configure the lamp in standby mode by sending a signal to the lamp instructing it to have zero light output. Lamp must remain connected to the network throughout testing.

    4.3. Operate the lamp at the rated voltage throughout testing. For lamps with multiple rated voltages including 120 volts, operate the lamp at 120 volts. If a lamp is not rated for 120 volts, operate the lamp at the highest rated input voltage.

    4.4. Stabilize the lamp prior to measurement as specified in section 5 of IEC 62301-DD (incorporated by reference; see § 430.3).

    4.5. Measure the standby mode power in watts as specified in section 5 of IEC 62301-DD (incorporated by reference; see § 430.3).

    [FR Doc. 2016-17135 Filed 7-19-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-8179; Directorate Identifier 2015-NM-201-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2011-26-03, which applies to certain The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes. AD 2011-26-03 currently requires installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks. AD 2011-26-03 resulted from fuel system reviews conducted by the manufacturer. Since we issued AD 2011-26-03, we have received a report indicating that additional airplanes are affected by the identified unsafe condition. This proposed AD would add airplanes to the applicability. This AD would also add, for certain airplanes, detailed inspections of certain wire bundle clamps, certain Teflon sleeves, and certain fasteners; corrective actions if necessary; and installation of Teflon sleeves under certain wire bundle clamps. We are proposing this AD to prevent electrical arcing on the fuel tank boundary structure or inside the fuel tanks, which could result in a fire or explosion.

    DATES:

    We must receive comments on this proposed AD by September 6, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8179.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8179; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM 140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6438; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-8179; Directorate Identifier 2015-NM-201-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88”), Amendment 21-78. Subsequently, SFAR 88 was amended by: Amendment 21-82 (67 FR 57490, September 10, 2002; corrected at 67 FR 70809, November 26, 2002) and Amendment 21-83 (67 FR 72830, December 9, 2002; corrected at 68 FR 37735, June 25, 2003, to change “21-82” to “21-83”).

    Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

    In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, combination of failures, and unacceptable (failure) experience. For all three failure criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

    We have determined that the actions identified in this proposed AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

    On December 5, 2011, we issued AD 2011-26-03, Amendment 39-16893 (76 FR 78138, December 16, 2011) (“AD 2011-26-03”), for certain The Boeing Company Model 777-200, -200LR, -300, and -300ER series airplanes. AD 2011-26-03 requires installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks. AD 2011-26-03 resulted from fuel system reviews conducted by the manufacturer. We issued AD 2011-26-03 to prevent electrical arcing on the fuel tank boundary structure or inside the fuel tanks, which could result in a fire or explosion.

    Actions Since AD 2011-26-03 Was Issued

    Since we issued AD 2011-26-03, we have received a report indicating that additional airplanes are affected by the identified unsafe condition.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. The service information describes procedures for installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks; as well as detailed inspections of certain wire bundle clamps, certain Teflon sleeves, and certain fasteners; corrective actions if necessary; and installation of Teflon sleeves under certain wire bundle clamps. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would retain all of the requirements of AD 2011-26-03. This proposed AD would also revise the applicability by adding Boeing Model 777-200LR and 777F series airplanes. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as described in “Differences Between this Proposed AD and the Service Information”. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-8179.

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

    Differences Between This Proposed AD and the Service Information

    Boeing has issued Alternative Method of Compliance (AMOC) Notice 777-57A0050 AMOC 02, dated February 15, 2016, to provide the correct group applicability for “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation,” Figure 3, and Figure 100 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. We have included these changes in paragraphs (k)(1), (k)(2), and (k)(3) of this AD.

    Costs of Compliance

    We estimate that this proposed AD affects 182 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Install Teflon sleeving and cap sealing (retained actions from AD 2011-26-03) Up to 358 work-hours × $85 per hour = $30,430 $2,241 Up to $32,671 Up to $5,946,122. Detailed inspections and installation of Teflon sleeves (new proposed actions) Up to 53 work-hours × $85 per hour = $4,505 1 0 Up to $4,505 Up to $819,910. 1 We have received no definitive data that would enable us to provide parts cost estimates for the installation of Teflon sleeves (new proposed action) specified in this proposed AD.

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2011-26-03, Amendment 39-16893 (76 FR 78138, December 16, 2011), and adding the following new AD: The Boeing Company: Docket No. FAA-2016-8179; Directorate Identifier 2015-NM-201-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by September 6, 2016.

    (b) Affected ADs

    This AD replaces AD 2011-26-03, Amendment 39-16893 (76 FR 78138, December 16, 2011) (“AD 2011-26-03”).

    (c) Applicability

    This AD applies to The Boeing Company airplanes, certificated in any category, as identified in the applicable service information specified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD.

    (1) For The Boeing Company Model 777-200, -200LR, -300, -300ER, and 777F airplanes: Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015.

    (2) For The Boeing Company Model 777-200 and -300 airplanes: Boeing Alert Service Bulletin 777-57A0051, dated May 15, 2006.

    (3) For The Boeing Company Model 777-200, -300, and -300ER airplanes: Boeing Alert Service Bulletin 777-57A0057, Revision 1, dated August 2, 2007.

    (4) For The Boeing Company Model 777-200, -200LR, -300, and -300ER airplanes: Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Unsafe Condition

    This AD was prompted by fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent electrical arcing on the fuel tank boundary structure or inside the main and center fuel tanks, which could result in a fire or explosion.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Retained Corrective Actions (Installing Teflon Sleeving, Cap Sealing, One-Time Inspection), With Revised Service Information

    This paragraph restates the requirements of paragraph (g) of AD 2011-26-03, with revised service information. Within 60 months after January 20, 2011 (the effective date of AD 2010-24-12, Amendment 39-16531 (75 FR 78588, December 16, 2010) (“AD 2010-24-12”)), do the applicable actions specified in paragraph (g)(1), (g)(2), (g)(3), or (g)(4) of this AD, except as required by paragraph (k)(2) of this AD.

    (1) For airplanes identified in Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009: Install Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009; or Revision 4, dated September 28, 2015. As of the effective date of this AD, only use Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, for accomplishing the actions required by this paragraph.

    (2) For airplanes identified in Boeing Alert Service Bulletin 777-57A0051, dated May 15, 2006: Cap seal certain penetrating fasteners of the fuel tanks, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0051, dated May 15, 2006.

    (3) For airplanes identified in Boeing Alert Service Bulletin 777-57A0057, Revision 1, dated August 2, 2007: Do a general visual inspection to determine if certain fasteners are cap sealed, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0057, Revision 1, dated August 2, 2007. Do all applicable corrective actions before further flight.

    (4) For Model 777-200, -300, and -300ER airplanes identified in Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008: Cap seal the fasteners in the center fuel tanks that were not sealed during production, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008.

    (h) Retained Cap Sealing the Fasteners, With No Changes

    This paragraph restates the requirements of paragraph (i) of AD 2011-26-03, with no changes. For Model 777-200LR airplanes identified in Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008: Within 60 months after January 3, 2012 (the effective date of AD 2011-26-03), cap seal the fasteners in the center fuel tanks that were not sealed during production, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008.

    (i) New Detailed Inspection and Corrective Actions

    For Group 1, Configurations 2 through 4 airplanes; Groups 2 through 4, Configurations 3 through 5 airplanes; Groups 5 through 43, Configuration 1 airplanes; and Groups 44 and 45 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Within 60 months after the effective date of this AD, do the applicable actions specified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD, except as required by paragraph (k)(2) of this AD.

    (1) For Group 1, Configurations 2 through 4 airplanes; Groups 2 through 4, Configurations 3 through 5 airplanes; Groups 5 through 43, Configuration 1 airplanes; and Groups 44 and 45 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for installation of Teflon sleeves on certain wire bundle clamps, as applicable; a detailed inspection to determine the type of wire bundle clamp; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.

    (2) For Group 1, Configurations 2 through 4 airplanes; and Groups 2 through 4, Configurations 3 through 5 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for correct installation of certain Teflon sleeves, as applicable; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.

    (3) For Group 1, Configurations 2 through 4 airplanes; and Groups 2 through 4, Configurations 3 through 5 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Do a detailed inspection for cap sealing of certain fasteners, as applicable; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015. Do all applicable corrective actions before further flight.

    (j) New Installation of Teflon Sleeves

    For Group 1, Configurations 2 through 5 airplanes; Groups 2 through 4, Configurations 3 through 6 airplanes; and Groups 5 through 43, Configuration 2 airplanes; as identified in Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015: Within 60 months after the effective date of this AD, install Teflon sleeves under certain wire bundle clamps, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, except as required by paragraphs (k)(1), (k)(2), and (k)(3) of this AD.

    (k) Exception to the Service Information

    (1) Where “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation” of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, specifies “Groups 5 through 43, Configuration 2,” for this AD, “WORK PACKAGE 21: More Work: Rear Spar Wire Bundle Teflon sleeve Installation” of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, applies to Groups 5 through 43.

    (2) Where Figure 3 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, specifies “Groups 1 through 7, and 9 through 43,” for this AD, Figure 3 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, applies to Groups 1 through 43.

    (3) Where Figure 100 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, specifies “Groups 5 through 43, Configuration 2,” for this AD, Figure 100 of Boeing Service Bulletin 777-57A0050, Revision 4, dated September 28, 2015, applies to Groups 5 through 43.

    (l) Credit for Previous Actions

    (1) This paragraph provides credit for the actions specified in paragraph (g)(1) of this AD, if those actions were performed before January 20, 2011 (the effective date of AD 2010-24-12), using Boeing Alert Service Bulletin 777-57A0050, dated January 26, 2006; or Revision 1, dated August 2, 2007; provided that the applicable additional work specified in Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009, is done within the compliance time specified in paragraph (g) of this AD. The additional work must be done in accordance with Boeing Service Bulletin 777-57A0050, Revision 2, dated May 14, 2009.

    (2) This paragraph provides credit for the actions specified in paragraph (g)(3) of this AD, if those actions were performed before January 20, 2011 (the effective date of AD 2010-24-12), using Boeing Alert Service Bulletin 777-57A0057, dated August 7, 2006.

    (m) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (n)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) AMOCs approved previously for AD 2011-26-03 are approved as AMOCs for the corresponding provisions of this AD.

    (n) Related Information

    (1) For more information about this AD, contact Suzanne Lucier, Aerospace Engineer, Propulsion Branch, ANM 140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6438; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on July 8, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-16906 Filed 7-19-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 14 RIN 2900-AP51 Recognition of Tribal Organizations for Representation of VA Claimants AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) is proposing to amend its regulations concerning recognition of certain national, State, and regional or local organizations for purposes of VA claims representation. Specifically, this rulemaking would allow the Secretary of Veterans Affairs to recognize tribal organizations in a similar manner as the Secretary recognizes State organizations. The proposed rule would allow a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. In addition, the proposed rule would allow an employee of a tribal government to become accredited through a recognized State organization in a similar manner as a County Veterans' Service Officer (CVSO) may become accredited through a recognized State organization. The intended effect of this proposed rule is to improve access of Native American veterans to VA-recognized organizations and VA-accredited individuals who may assist them on their benefit claims.

    DATES:

    Written comments must be received on or before September 19, 2016.

    ADDRESSES:

    Written comments may be submitted through http://www.regulations.gov; by mail or hand delivery to the Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AP51, Recognition of Tribal Organizations for Representation of VA Claimants.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System at http://www.regulations.gov/.

    FOR FURTHER INFORMATION CONTACT:

    Dana Raffaelli, Staff Attorney, Benefits Law Group, Office of the General Counsel, (022D), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7699. (This is not a toll free number.)

    SUPPLEMENTARY INFORMATION:

    This proposed rule would amend part 14 of title 38, Code of Federal Regulations, to provide for the recognition of tribal organizations that are established and funded by tribal governments so that representatives of the organizations may assist Native American veterans and their families in the preparation, presentation, and prosecution of their VA benefit claims. The purpose of this proposed rule is to address the needs of Native American populations who are geographically isolated from existing recognized Veterans Service Organizations (VSOs) or who may not be utilizing other recognized VSOs due to cultural barriers or lack of familiarity with those organizations. Native American veterans face challenges accessing representation in VA claims because many live in remote areas that are far from the nearest accredited representative. In addition, some Native American veterans may prefer to seek assistance from organizations that are associated with their tribal government, rather than using other organizations that are not as familiar to them. This proposed rule would help facilitate the VA recognition of tribal organizations that are established and funded by one or more tribal governments and whose primary purpose is to serve Native American veterans.

    Pursuant to 38 U.S.C. 5902, VA recognizes organizations and accredits their representatives for the preparation, presentation, and prosecution of claims under laws administered by VA. VA's regulation regarding the recognition of such organizations is 38 CFR 14.628, which currently does not expressly allow for the recognition of tribal organizations. Under the current regulations, however, any organization, including an organization created by one or more tribal governments, may apply for recognition by VA as either: (1) A national organization, or (2) a regional or local organization. To be recognized as a national organization, the organization must meet the requirements of § 14.628(a) and (d). To be recognized as a regional or local organization, the organization must meet the requirements of § 14.628(c) and (d). VA also accredits State organizations. To be recognized as a State organization, the organization must meet the requirements of § 14.628(b) and (d). Under the current regulations, VA has received only a few inquiries from tribal governments expressing interest in pursuing any type of VA recognition other than the type of recognition granted to State organizations. Pursuant to 38 CFR 14.627 and 14.629, VA recognition of a State organization is limited to organizations established and funded by a State, possession, territory, or Commonwealth of the United States, and the District of Columbia. This proposed rule would allow tribal governments to establish and fund tribal organizations in a similar manner as the State governments have established and funded State organizations. Allowing organizations that are created and funded by tribal governments to be recognized as “tribal organizations” rather than as national, regional or local organizations would afford VA the opportunity to acknowledge and affirm the long-standing recognition by the Federal government of tribes' inherent sovereignty and right to self-government.

    This proposed rule would amend 38 CFR 14.627 by adding a paragraph (r) that would provide that tribal government means the Federally recognized governing body of any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or Regional or Village Corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. This is consistent with the definition of Indian tribe in 38 CFR 39.2.

    This proposed rule would amend current § 14.628(b) by redesignating it as paragraph (b)(1), “State organization,” and adding paragraph (b)(2), “Tribal organization.” VA would clarify that a Tribal organization, for the purposes of 38 CFR 14.626 through 14.637, is a legally established organization that is primarily funded and controlled, sanctioned, or chartered by one or more tribal governments and that has a primary purpose of serving the needs of Native American veterans; that only one tribal organization may be recognized for each tribal government; and, that, if a tribal organization is created and funded by more than one tribal government, the approval of each tribal government must be obtained prior to applying for VA recognition and that, if one of the supporting tribal governments withdraws from the tribal organization, the tribal organization must notify VA of the withdrawal and certify that the tribal organization can continue to meet the recognition requirements in § 14.628(d) without the participation of that tribal government. This change is intended to allow tribal organizations to be recognized in a similar manner as State organizations, while still taking into account the unique circumstances of tribal governments being sovereign nations and of varying sizes.

    In order to ensure that all claimants for VA benefits receive responsible, qualified representation in the preparation, presentation, and prosecution in their claims for veterans' benefits, VA has established general criteria that apply to all organizations requesting VA recognition as a national, State, regional, or local organization under § 14.628(a) through (c). Therefore, tribal organizations would also need to meet these same general requirements in order to be recognized. Pursuant to § 14.628(d), an organization requesting recognition must: (1) Have as a primary purpose serving veterans, (2) demonstrate a substantial service commitment to veterans either by showing a sizable organizational membership or by showing performance of veterans' services to a sizable number of veterans, (3) commit a significant portion of its assets to veterans' services and have adequate funding to properly perform those services, (4) maintain a policy and capability of providing complete claims service to each claimant requesting representation or give written notice of any limitation in its claims service with advice concerning the availability of alternative sources of claims service, and (5) take affirmative action, including training and monitoring of accredited representatives, to ensure proper handling of claims.

    We recognize the varying sizes of tribal governments. We further recognize that, due to the size of certain smaller Indian tribes, a single tribal government may be unable to establish an organization that could demonstrate a substantial service commitment to veterans either by showing a sizable organizational membership or by showing performance of veterans' services to a sizable number of veterans. A single tribal government may also be unable to establish an organization that would be able to adequately fund the necessary services of a tribal organization that provides assistance with VA benefit claims. Therefore, VA would consider applications from a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. The approval of each tribal government would be necessary for VA to process the request for VA recognition. While VA is sensitive to the fact that some tribal governments may have difficulty meeting the substantial service commitment and funding requirements, VA must ensure that VA accredited organizations can provide long-term, competent representation. Therefore, VA would require that, if one of the supporting tribal governments withdraws from the tribal organization, the tribal organization must notify VA of the withdrawal and certify that the tribal organization continues to meet the recognition requirements in § 14.628(d) without the participation of that tribal government. We note that 25 U.S.C. 450b(l) recognizes the existence of tribal coalitions in the definition of tribal organization for the purpose of entering into contracts or grants for certain educational benefits. Additionally, in 38 CFR 39.2, VA has recognized the existence of a parallel concept for the purpose of applying for cemetery grants.

    Based on our experience in applying § 14.628, we believe the proposed addition to the regulation would facilitate the recognition of Tribal organizations and would improve Native American veterans' access to accredited representatives. Once a tribal organization has been recognized by VA, the certifying official of the organization would be able to file for VA accreditation for the individuals that the organization wishes to become accredited as its representatives. See 38 CFR 14.629.

    VA further recognizes that not all tribal governments may want to establish their own Tribal veterans organization and some may have already established working relationships with their respective State organizations to help address the needs of their Native American veteran population. We, therefore, propose to amend 38 CFR 14.629(a)(2) to allow for an employee of a tribal government that is not associated with a tribal organization, to become accredited as a representative of a State organization in a similar manner as a county employee, i.e., a CVSO. In 1990, in order to further ensure the availability of competent representation for VA claimants, VA extended the opportunity for accreditation through State organizations to county veterans' service officers. See 54 FR 50772; 55 FR 38056. In extending this opportunity, VA cited the close association between States and county veterans' service officers, likening the association to that of a State employee under 54 FR 50772. In a previous rulemaking, VA recognized the fact that State governments do not have direct supervision of, or accountability for, CVSO, and therefore, to ensure adequate training and fitness to serve as a VA accredited representative, VA prescribed criteria that such officers must meet in order to become accredited. The criteria for a CVSO to become accredited through a State organization are outlined in § 14.629(a)(2)(i) through (iii). In order for a CVSO to be recommended for VA accreditation by a VA-recognized State organization, the officer must be a paid employee of the county working for it not less than 1,000 hours annually; have successfully completed a course of training and an examination which have been approved by a Regional Counsel with jurisdiction for the State; and receive either regular supervision and monitoring or annual training to assure continued qualification as a representative in the claims process. We note that the VA Office of the General Counsel (OGC) has recently undergone realignment and under the new structure Regional Counsels are now referred to as Chief Counsels. To avoid unnecessary confusion and because we intend to issue a direct final rule addressing the realignment of OGC and the changing of titles of certain OGC positions in the accreditation regulations in a single rulemaking, we are continuing to use the outdated title of Regional Counsel for this rulemaking.

    Although tribal governments are not politically subordinate to State governments like county governments are, tribal governments often do have close, productive relationships with State governments through gaming compacts, cross-deputization, and other cooperative agreements. Therefore, we believe that the collaborative nature of the relationship between tribes and States supports the proposed concept of recognizing tribal veterans' service officers in a manner similar to county veterans' service officers. As stated above, we believe this additional path to become an accredited representative would further facilitate veterans obtaining representation across county, State, and tribal borders.

    For consistency, the proposed rule would also amend 38 CFR 14.635 to extend office space opportunities already granted to certain employees of State organizations to employees of tribal organizations. The proposed rule would allow the Secretary to furnish office space and facilities, when available, to both State and tribal organization employees who are also accredited to national organizations for the purpose of assisting claimants in the preparation, presentation, and prosecution of claims for benefits.

    We are also requesting from the Office of Management and Budget (OMB) approval for the provisions of § 14.628(d) that constitute a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Therefore, we would remove the current OMB control number parenthetical at the end of § 14.628 and add, in its place, a placeholder parenthetical.

    Finally, we would make a technical amendment to § 14.629(a)(2) to correct “county veteran's service officer” to read as “county veterans' service officer”. In a prior rulemaking, we misplaced the location of the apostrophe associated with the previously mentioned phrase. See 54 FR 50772 (Dec. 11, 1989); 55 FR 38056 (Sept. 17, 1990). Therefore, we would correct that error in this rulemaking.

    Paperwork Reduction Act

    This proposed rule includes provisions constituting collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by OMB. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review.

    OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Proposed § 14.628 contains a collection of information under the Paperwork Reduction Act of 1995. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing a collection of information or take such other action as is directed by OMB.

    Comments on the collection of information contained in this proposed rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to the Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; email to www.Regulations.gov. Comments should indicate that they are submitted in response to “RIN 2900-AP51.”

    OMB is required to make a decision concerning the collections of information contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the proposed rule.

    The Department considers comments by the public on proposed collections of information in—

    • Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;

    • Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;

    • Enhancing the quality, usefulness, and clarity of the information to be collected; and

    • Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    The collection of information contained in 38 CFR 14.628 is described immediately following this paragraph, under its respective title.

    Title: Requirements for Recognition as a VA Accredited Organization.

    Summary of collection of information: The collection of information in 38 CFR 14.628 would require organizations seeking VA accreditation under § 14.628 to submit certain documentation to certify that the organization meets the requirements for VA accreditation. Pursuant to § 14.628(d), an organization requesting recognition must have as a primary purpose serving veterans. In establishing that it meets this requirement, an organization requesting recognition shall submit a statement establishing the purpose of the organization and that veterans would benefit by recognition of the organization.

    The organization must also demonstrate a substantial service commitment to veterans either by showing a sizable organizational membership or by showing performance of veterans' services to a sizable number of veterans. In establishing that it meets this requirement, an organization requesting recognition shall submit: The number of members and number of posts, chapters, or offices and their addresses; a copy of the articles of incorporation, constitution, charter, and bylaws of the organization, as appropriate; a description of the services performed or to be performed in connection with programs administered by VA, with an approximation of the number of veterans, survivors, and dependents served or to be served by the organization in each type of service designated; and a description of the type of services, if any, performed in connection with other Federal and State programs which are designed to assist former Armed Forces personnel and their dependents, with an approximation of the number of veterans, survivors, and dependents served by the organization under each program designated.

    An organization requesting recognition must commit a significant portion of its assets to veterans' services and have adequate funding to properly perform those services. In establishing that it meets this requirement, an organization requesting recognition shall submit: A copy of the last financial statement of the organization indicating the amount of funds allocated for conducting particular veterans' services (VA may, in cases where it deems necessary, require an audited financial statement); and a statement indicating that use of the organization's funding is not subject to limitations imposed under any Federal grant or law which would prevent it from representing claimants before VA.

    An organization requesting recognition must maintain a policy and capability of providing complete claims service to each claimant requesting representation or give written notice of any limitation in its claims service with advice concerning the availability of alternative sources of claims service. In establishing that it meets this requirement, an organization requesting recognition shall submit evidence of its capability to represent claimants before VA regional offices and before the Board of Veterans' Appeals. If an organization does not intend to represent claimants before the Board of Veterans' Appeals, the organization shall submit evidence of an association or agreement with a recognized service organization for the purpose of representation before the Board of Veterans' Appeals, or the proposed method of informing claimants of the limitations in service that can be provided, with advice concerning the availability of alternative sources of claims service. If an organization does not intend to represent each claimant requesting assistance, the organization shall submit a statement of its policy concerning the selection of claimants and the proposed method of informing claimants of this policy, with advice concerning the availability of alternative sources of claims service.

    An organization requesting recognition must take affirmative action, including training and monitoring of accredited representatives, to ensure proper handling of claims. In establishing that it meets this requirement, an organization requesting recognition shall submit: A statement of the skills, training, and other qualifications of current paid or volunteer staff personnel for handling veterans' claims; and a plan for recruiting and training qualified claim representatives, including the number of hours of formal classroom instruction, the subjects to be taught, the period of on-the-job training, a schedule or timetable for training, the projected number of trainees for the first year, and the name(s) and qualifications of the individual(s) primarily responsible for the training.

    In addition, the organization requesting recognition shall supply: A statement that neither the organization nor its accredited representatives will charge or accept a fee or gratuity for service to a claimant and that the organization will not represent to the public that VA recognition of the organization is for any purpose other than claimant representation; and the names, titles, and addresses of officers and the official(s) authorized to certify representatives.

    Description of need for information and proposed use of information: The information is used by VA in reviewing accreditation applications to determine whether organizations meet the requirements for VA accreditation under § 14.628.

    Description of likely respondents: Organizations seeking VA accreditation under § 14.628.

    Estimated number of respondents: 5 applicants per year.

    Estimated frequency of responses: This is a one-time collection.

    Estimated average burden per response: 5 hours.

    Estimated total annual reporting and recordkeeping burden: 25 hours per year.

    Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. It does not require any action on the part of any entity but merely provides a new opportunity for tribal organizations to become recognized by VA for the purpose of assisting VA claimants in the preparation, presentation, and prosecution of claims for VA benefits. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

    Executive Order 13175

    Executive Order 13175 provides that Federal agencies may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs on tribal governments, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments or the Federal agency consults with tribal officials early in the process of developing the proposed regulation, develops and publishes in the Federal Register a tribal summary impact statement, and provides to the Director of OMB any written communications submitted to the agency by the tribal officials.

    On March 3 and 10, 2016, respectively, VA issued letters to tribal leaders as well as a Federal Register notice, 81 FR 12626, seeking comment on VA's consideration of issuing a proposed rule that would amend part 14 of title 38, Code of Federal Regulations, to expressly provide for the recognition of tribal organizations so that representatives of the organizations may assist Native American claimants in the preparation, presentation, and prosecution of their VA benefit claims. Those interested in providing comment were given 30-days to respond. Based on requests from commenters, VA expanded the comment period an additional 15 days to April 26, 2016. VA received comments from 36 commenters. A few commenters submitted more than one comment. Overall, the comments were supportive of issuing such a proposed rule.

    One commenter wrote that, currently, their tribal representatives are being accredited through their State as well as other national organizations and was curious as to the “road blocks” other tribal organizations were facing. This commenter did not provide any suggestions, and therefore, no change to this rulemaking is warranted.

    Several commenters noted that currently Native American veterans face many roadblocks to obtaining representation. One commenter noted that geography, economic, and culture barriers prevent Native American veterans from utilizing currently available representation. These comments were offered in support of the proposed rule, and therefore, no change to this rulemaking is warranted.

    A few commenters misinterpreted the language provided in the consultation and notice as meaning that VA intended to propose that VA's recognition of a tribal organization would be tied to VA's recognition of the corresponding State organization. One commenter stated that VA should recognize a tribal organization as “equal to” a State organization. VA is not tying VA recognition of a tribal organization to a State and is choosing not to make value judgements as to the importance of the recognition granted to State organizations and Tribal organizations. Recognition of a tribal organization would stand on its own. VA has chosen to use the term similar rather than the term equal in this proposed rule because we are proposing some differences in the requirements for VA recognition of a tribal organization and the requirements for State organizations. Specifically, the proposed rule would allow a single tribal government, or multiple tribal governments to join together to establish and fund a tribal organization, but such allowance is not permitted for State governments.

    A few commenters misinterpreted the language provided in the consultation and notice as limiting recognition of a tribal veterans' service officer through a State. One commenter asked for clarification on what type of employees would be eligible to become accredited by VA. The commenter stated that employees of a tribal nation as well as a tribal organization should be eligible. We agree, and the proposed rule would allow for both avenues to attain VA accreditation depending on the tribal government's size, relationships with other tribal governments, relationships with States, and the needs of Native American veterans in their area. After a tribal organization becomes recognized by VA, that organization would be able to request to have its own representatives accredited under 38 CFR 14.629. In addition to proposing to recognize tribal organizations and accredit their representatives, VA would provide an additional means by which VA may recognize an employee of a tribal government as a tribal veterans' service officer through a State organization. This accreditation would be akin to accreditation given to county veterans' service officers through State organizations and is only meant to provide an additional path to VA accreditation. We propose that the requirements for a tribal veterans' service officer to become accredited as a representative through a State organization be the same as the requirements for a county veterans' service officer. Therefore, VA makes no changes based on these comments.

    One commenter asked what happens to the accreditation of a tribal organization if the Director is relinquished. It seems this comment stems from the misinterpretation previously discussed regarding the accreditation of a tribal organization and the corresponding State organization. The commenter also asked what happens if the State refuses to sponsor the replacement officer. As discussed above, once a tribal organization becomes recognized by VA, that organization would be able to request to have its own representatives accredited under § 14.629. The tribal organization can file with VA to have a replacement officer accredited. Therefore, VA makes no changes based on this comment.

    Several commenters also expressed concern over the requirements for recognition in § 14.628(d). Specifically, the commenters expressed concern that many tribal organizations may not be able to satisfy the primary purpose, size, funding, and training requirements, to include providing the required, supporting documentation. One commenter suggested that VA provide the funding for tribes “to engage in this work.” Another commenter suggested including Indian Health Services for funding assistance. A few commenters expressed concern about the requirement that the organization must maintain a policy of either providing complete claims representation or provide “written notice of any limitation in its claims service with advice concerning the availability of alternative sources of claims service.” 38 CFR 14.628(d)(1)(iv). One commenter seemed to believe VA was questioning the level of competence of tribal representatives. VA must ensure that VA accredited organizations can provide long-term, competent representation and has found that the § 14.628(d) requirements are protective of that mission. These requirements apply to all organizations seeking VA recognition. Exempting tribal organizations from meeting the § 14.628(d) requirements would not be consistent with the purpose of VA recognition to ensure that veterans are receiving qualified, competent representation on their VA benefit claims. As previously discussed, VA has provided additional means to achieve VA recognition or accreditation for those tribal governments that may have difficulty establishing a tribal organization capable of meeting the § 14.628(d) requirements, to include the ability for one or more tribal governments to establish and fund a tribal organization and the ability of an employee of a tribal government to become accredited as a tribal veterans' service officer through a recognized State organization. Therefore, VA makes no changes based on these comments.

    One commenter suggested that VA grant accreditation to tribes through a Memorandum of Understanding and included their tribe's Memorandum of Understanding with their State. The commenter also questioned the role of VA in the accreditation and monitoring process. The laws governing VA accreditation are set out at 38 U.S.C. 5902 and 5904 and 38 CFR 14.626-14.637. These laws apply to all organizations, agents, and attorneys seeking VA accreditation. Pursuant to § 14.628, the organization requesting VA accreditation must certify to VA that the organization meets the § 14.628(d) requirements for recognition. Therefore, a Memorandum of Understanding between VA and a tribe is not sufficient for applying for VA accreditation. Furthermore, VA does monitor its accredited organizations, agents, and attorneys and handles disciplinary matters as they arise. Therefore, VA makes no changes based on this comment.

    One commenter suggested that VA engage in additional consultation with Tribes that would be “interested in becoming recognized veterans['] service organizations, but are unable to meet the requirements.” In the proposed rule, VA offers alternative avenues for VA recognition and accreditation for tribal governments that may not be capable of establishing an organization that can meet the VA recognition requirements in the proposed rule on their own. VA further welcomes additional comments as to the suitability of those alternative avenues through comments on this proposed rule. VA declines to make any changes based on this comment.

    One commenter also recommended that “VA enter into Memorandums of Understanding with [F]ederally-recognized tribes and tribal organizations for [v]eterans' [s]ervice [o]fficer training and service reimbursement, on individual bases.” Another commenter objected to the fact that there was “no mention of funding to train and maintain such a position.” Section 5902, of title 38, United State Code, which is the law that authorizes VA to recognize organizations for the purpose of providing assistance on VA benefit claims, does not provide for the funding of such organizations to train and maintain representatives. Pursuant to § 14.628(d)(iii)(B), organizations are not precluded from seeking and receiving other sources of State and Federal grant funding so long as the organization's funding is not subject to limitations imposed under any Federal grant or law which would prevent it from representing claimants before VA. Therefore, VA declines to make any changes based on these comments.

    One commenter wrote that VA “. . . should include [F]ederally-recognized tribes, not just tribal organizations funded by tribal governments, as an entity from which applications will be considered to be recognized for . . .” VA accreditation. Another commenter suggested adding “[F]ederally recognized tribes” or “[F]ederally recognized tribal governments” as part of the definition for tribal organizations. Another commenter suggested adding tribal communities. For the purposes of the regulations pertaining to the representation of VA claimants, VA proposes to define a tribal government to mean “the Federally recognized governing body of any Indian tribe, band, nation, or other organized group or community . . .”. VA finds this definition to be inclusive of the comments, and therefore, no change is warranted.

    One commenter suggested a legislative amendment to the definition of State in 38 U.S.C. 101(20) to include “[F]ederally recognized tribal governments.” Amending the statutory language is something that only Congress can accomplish. Since VA is defining the term “tribal government” in regulation and providing an avenue for VA recognition of a tribal organization separate from a State organization, VA does not find such a legislative amendment necessary. Therefore, no change is warranted based on this comment.

    Several commenters wrote that “[s]pecial attention must be paid to what specifically is meant by a `[t]ribal [o]rganization' ” and that VA should offer a clear definition of the term. The commenters did not offer any suggestions for such definition. As previously discussed, VA is defining this term for the purposes of this rulemaking. Therefore, VA does not make any changes based on this comment.

    Several commenters asked VA to clarify whether tribal governments, including veterans departments within these governments, would be eligible for VA recognition. A Department of Veterans Affairs or a Veterans Affairs office that is established and funded by a tribal government would be included in the definition of tribal organization. Therefore, no change to this rulemaking is warranted based on these comments.

    One commenter asked that VA provide recognition for urban Indian organizations. The comment is unclear on whether such an organization would be able to apply for VA recognition as a tribal organization. VA declines to add an additional organization category at this time. In addition to the proposed amendments discussed in this rulemaking, an organization may still utilize other avenues to apply for VA recognition such as requesting VA recognition as a regional or local organization. To be recognized as a regional or local organization, an organization must meet the requirements of § 14.628(c) and (d).

    Further, there are several ways that individuals, including tribal members, tribal government employees, and others who work within and serve tribal or Native American communities, may be accredited by VA to represent claimants. An individual may apply for accreditation as a representative through an existing VA-recognized organization under standards set forth in § 14.629(a). Alternatively, an individual may also seek accreditation in an individual capacity as either an agent or an attorney under the standards set forth in § 14.629(b). Therefore, VA declines to make any changes based on this comment.

    A couple of commenters submitted statements certifying that their organization would meet the requirements for accreditation for a tribal organization. Applications for accreditation are outside the scope of this rulemaking. Therefore, no change is warranted based on these comments.

    One commenter asked whether accredited tribal representatives would be granted access to software programs containing a veteran's claims file information and whether that access would be on tribal grounds. This issue is outside the scope of this rulemaking. Therefore, no change is warranted based on this comment.

    One commenter expressed support for VA recognizing tribal organizations in an equal manner as VA recognizes State organizations but suggested that VA authorize a field office close to tribal administration locations and fund one or two veterans service officer positions. The tribal consultation and this proposed rulemaking are limited in scope to recognition for purposes of VA claims representation. The commenter's suggestion of adding a field office is beyond the scope, and therefore, VA declines to make any changes based on this comment. VA also declines to make any changes to the commenter's suggestion of funding job positions for veterans service officers. Part of the § 14.628(d) requirements is that an organization seeking accreditation must commit a significant portion of its assets to veterans' services and have adequate funding to properly perform those services. 38 CFR 14.628(d)(1)(iii).

    A few commenters expressed concern that the proposed rulemaking is limiting VA recognition for the preparation, presentation, and prosecution of claims for VA benefits. One commenter seemed to think VA is depriving veterans from other title 38 benefits. The commenters did not specify what other accreditation they are seeking. As previously discussed, 38 CFR part 14 is limited in jurisdiction to recognizing organizations and accrediting individuals to assist in the preparation, presentation, and prosecution of VA benefit claims. Pursuant to section 5902, VA accreditation may not be granted for any other purpose. This rulemaking in no way deprives any veteran of any title 38 benefits. Therefore, no change is warranted based on these comments.

    One commenter suggested that office space opportunities should be available to tribal governments and organizations in the same manner as they are available to State organizations. As previously discussed, this proposed rule would, under § 14.635, allow the Secretary to furnish office space and facilities, when available, to both State and tribal organization employees who are also accredited to national organizations for the purpose of assisting claimants in the preparation, presentation, and prosecution of claims for benefits. VA would be furnishing office space to tribal organizations in the same manner as it furnishes such space to State organizations. Therefore, no change is warranted based on this comment.

    One commenter noted that VA should allow a tribal government employee to become accredited through an accredited body of their choice. VA in no way is limiting how a particular individual may apply to become an accredited VA representative. As previously discussed, VA is merely providing additional paths to VA accreditation than currently exist. Therefore, VA declines to make any changes to this rulemaking based on this comment.

    Several commenters suggested further outreach and collaboration. One commenter suggested that VA form a tribal workgroup to allow representatives from tribal organizations to collaborate on implementing the new program. One commenter provided VA with their tribal consultation policy. Other commenters suggested that VA engage in additional consultation with experts in Indian law and hold an all-tribes call to gather additional input for this rulemaking. VA appreciates this information. As previously noted, VA extended the comment period for an additional 15 days to ensure that all interested parties had an appropriate time to provide input. Therefore, VA finds that it has complied with the requirements of Executive Order 13175. VA notes that an additional 60-day comment period is provided for this proposed rule and invites any additional comment to this rulemaking to be provided during that time.

    One commenter asked for the projected implementation date of this rulemaking. VA will publish a final rule to this proposed rule which will contain the effective date of the rulemaking.

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by OMB, unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations or recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

    The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of this rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

    Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

    Catalog of Federal Domestic Assistance

    There are no Catalog of Federal Domestic Assistance programs numbers and titles associated with this proposed rule.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized Gina S. Farrisee, Deputy Chief of Staff, to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on July 14, 2016 for publication.

    List of Subjects in 38 CFR Part 14

    Administrative practice and procedure, Claims, Courts, Foreign relations, Government employees, Lawyers, Legal services, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Surety bonds, Trusts and trustees, Veterans.

    Dated: July 14, 2016. Janet J. Coleman, Chief, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 14 as follows:

    PART 14—LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS 1. The authority citation for part 14 continues to read as follows: Authority:

    5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14, unless otherwise noted.

    2. Amend § 14.627 by adding paragraph (r) to read as follows:
    § 14.627 Definitions.

    (r) Tribal government means the Federally recognized governing body of any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or Regional or Village Corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

    3. Amend § 14.628 by: a. Redesignating paragraph (b) as paragraph (b)(1) and adding paragraph (b)(2); and b. In the parenthetical at the end of the section, removing “2900-0439” and adding, in its place, 2900-XXXX”.

    The addition reads as follows:

    § 14.628 Recognition of organizations.

    (b)(1) State organization. * * *

    (2) Tribal organization. For the purposes of 38 CFR 14.626 through 14.637, an organization that is a legally established organization that is primarily funded and controlled, sanctioned, or chartered by one or more tribal governments and that has a primary purpose of serving the needs of Native American veterans. Only one tribal organization may be recognized for each tribal government. If a tribal organization is created and funded by more than one tgovernment, the approval of each tribal government must be obtained prior to applying for VA recognition. If one of the supporting tribal governments withdraws from the tribal organization, the tribal organization must notify VA of the withdrawal and certify that the tribal organization continues to meet the recognition requirements in paragraph (d) of this section.

    § 14.629 [Amended]
    4. Amend § 14.629 by: a. In paragraph (a)(2) introductory text, removing “county veteran's service officer” and adding in its place “county veterans' service officer”; b. In paragraph (a)(2) introductory text, adding “or tribal veterans' service officer” immediately following “county veterans' service officer”; and c. In paragraph (a)(2)(i), adding “or tribal government” immediately following “county”.
    § 14.635 [Amended]
    5. Amend § 14.635 by adding, in the introductory paragraph, “or tribal” immediately following “State”.
    [FR Doc. 2016-17052 Filed 7-19-16; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0507; FRL-9949-30-Region 4] Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve the State Implementation Plan (SIP) submission, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on January 22, 2013, for inclusion into the Florida SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” FDEP certified that the Florida SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in Florida. With the exception of provisions pertaining to the ambient air quality monitoring and data system, prevention of significant deterioration (PSD) permitting and interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states, EPA is proposing to find that Florida's infrastructure SIP submission, provided to EPA on January 22, 2013, satisfies certain required infrastructure elements for the 2010 1-hour NO2 NAAQS.

    DATES:

    Written comments must be received on or before August 19, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2014-0507 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via electronic mail at [email protected] or via telephone at (404) 562-8726.

    SUPPLEMENTARY INFORMATION:

    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

    1 In these infrastructure SIP submissions States generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Throughout this rulemaking, unless otherwise indicated, the term “Florida Administrative Code” or “F.A.C.” indicates that the cited regulation has been approved into Florida's federally-approved SIP. The term “Florida statute” or “F.S.” indicates cited Florida state statutes, which are not a part of the SIP unless otherwise indicated.

    In this action, EPA is proposing to approve Florida's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO2 NAAQS, with the exception of the ambient air quality monitoring and data system requirements of section 110(a)(2)(B), 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 of prongs 1 and 2 of section 110(a)(2)(D)(i). On March 18, 2015, EPA approved Florida's January 22, 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 today pertaining to sections 110(a)(2)(C), prong 3 of D(i), and (J). Additionally, EPA is not proposing action related to the ambient air quality monitoring and data system of section 110(a)(2)(B) and prongs 1 and 2 of section 110(a)(2)(D)(i). EPA will act on these provisions in a separate action. For the aspects of Florida's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Florida's already approved SIP meets certain CAA requirements.

    II. What elements are required under sections 110(a)(1) and (2)?

    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

    2 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. Today's proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

    • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources 3

    3 This rulemaking only addresses requirements for this element as they relate to attainment areas.

    • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 4

    4 As mentioned above, this element is not relevant to today's proposed rulemaking.

    • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and PSD and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions?

    EPA is acting upon the SIP submission from Florida 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.

    5 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    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.

    6 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    7 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    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

    8 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    9 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

    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

    10 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

    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.

    11 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    12 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    13 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

    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 GHGs. 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.

    14 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

    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

    15 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    16 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    17 See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).

    IV. What is EPA's analysis of how Florida addressed the elements of the sections 110(a)(1) and (2) “infrastructure” provisions?

    Below is a discussion of the Florida submission organized by each of the sub-elements found in sections 110(a)(1) and (2).

    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. There are several regulations within Florida Administrative Code (F.A.C.) relevant to air quality control regulations which include enforceable emission limitations and other control measures. Chapters 62-204, F.A.C., Air Pollution Control Provisions; 62-210, F.A.C., Stationary Sources—General Requirements; 62-212, F.A.C., Stationary Sources—Preconstruction Review; 62-296, F.A.C., Stationary Sources—Emissions Standards; and 62-297, F.A.C., Stationary Sources—Emissions Monitoring, establish emission limits for NO2 and address the required control measures, means and techniques for compliance with the 2010 1-hour NO2 NAAQS respectively. Additionally, the following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(9), Florida Statutes, authorizes FDEP to “[a]dopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state,” and section 403.8055, Florida Statutes, authorizes FDEP to “[a]dopt rules substantively identical to regulations adopted in the Federal Register by the United States Environmental Protection Agency pursuant to federal law . . .”

    EPA has made the preliminary determination that the provisions contained in these chapters satisfy section 110(a)(2)(A) 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 start up, shut down, and malfunction (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

    18 On June 12, 2015, EPA published a final action entitled, “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.” See 80 FR 33840.

    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: With respect to Florida's infrastructure SIP submission related to the ambient air quality monitoring and data system, EPA is not proposing any action today regarding these requirements and instead will act on this portion of the submission in a separate action.

    3. 110(a)(2)(C) Programs 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 Florida's section 110(a)(2)(C) infrastructure SIP submission.

    Enforcement: Florida cites to Section 403.061(6), Florida Statutes, which requires FDEP to “[e]xercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.” Section 403.121, Florida Statutes, authorizes FDEP to seek judicial and administrative remedies, including civil penalties, injunctive relief, and criminal prosecution for violations of any FDEP rule or permit. These provisions provide FDEP with authority for enforcement of NO2 emission limits and control measures.

    Preconstruction PSD Permitting for Major Sources: With respect to Florida's January 22, 2013, infrastructure SIP submission related to the preconstruction 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. FDEP's SIP-approved rule Chapters 62-204, F.A.C., Air Pollution Control Provisions, 62-210, F.A.C., Stationary Sources—General Requirements, 62-212, F.A.C., Stationary Sources—Preconstruction Review apply to minor sources and minor modifications as well as major stationary sources and modifications.

    EPA has made the preliminary determination that Florida's SIP is 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)(I) and (II) 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 Florida'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 Florida'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 Florida's January 22, 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: Section 110(a)(2)(D)(i)(II) requires that the SIP contain adequate provisions to protect visibility in other states. In its submittal, Florida cited to EPA's proposed approval of the State's regional haze SIP, which EPA fully approved.19 Federal regulations require that a state's regional haze SIP contain a long-term strategy to address regional haze visibility impairment in each Class I area within the state and each Class I area outside the state that may be affected by emissions from the state.20 A state participating in a regional planning process, such as Florida, must include all measures needed to achieve its apportionment of emissions reduction obligations agreed upon through that process.21 EPA's approval of Florida's regional haze SIP therefore ensures that emissions from Florida are not interfering with measures to protect visibility in other states, satisfying the requirements of prong 4 of section 110(a)(2)(D)(i)(II) for the 2010 1-hour NO2 NAAQS.22 Thus, EPA has made the preliminary determination that Florida's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS meets the requirements of prong 4 of section 110(a)(2)(D)(i)(II).

    19See 77 FR 71111 (November 29, 2012); 78 FR 53250 (August 29, 2013).

    20See 40 CFR 51.308(d).

    21See, e.g., 40 CFR 51.308(d)(3)(ii). Florida participated in the Visibility Improvement State and Tribal Association of the Southeast regional planning organization, a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Southeastern United States. Member state and tribal governments included: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia, and the Eastern Band of the Cherokee Indians.

    22See EPA's September 13, 2013, guidance document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” at pp. 32-35, available at: http://www.epa.gov/air/urbanair/sipstatus/infrastructure.html; see also memorandum from William T. Harnett, Director, Air Quality Policy Division, Office of Air Quality Planning and Standards, to Regional Air Division Directors, entitled “Guidance on SIP Elements Required Under Sections 110(1)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS) (September 25, 2009) at pp. 5-6, available at: http://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.

    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. Chapters 62-204, F.A.C., Air Pollution Control Provisions ; 62-210, F.A.C., Stationary Sources—General Requirements, and 62-212, F.A.C., Stationary Sources—Preconstruction Review of the Florida SIP outlines how Florida will notify neighboring states of potential impacts from new or modified sources. EPA is unaware of any pending obligations for the State of Florida pursuant to sections 115 or 126 of the CAA. EPA has made the preliminary determination that Florida'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 Florida's SIP as meeting the requirements of section 110(a)(2)(E). EPA's rationale for today's proposal respecting each requirement of section 110(a)(2)(E) is described in turn below.

    In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), FDEP's infrastructure submission demonstrates that FDEP is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, and fee schedules for the review of plans, and other planning needs. Section 403.061(2), Florida Statutes, authorizes FDEP to “[h]ire only such employees as may be necessary to effectuate the responsibilities of the department.” Section 403.061(4), Florida Statutes, authorizes FDEP to “[s]ecure necessary scientific, technical, research, administrative, and operational services by interagency agreement, by contract, or otherwise.” Section 403.061(35), Florida Statutes, authorizes FDEP to exercise the duties, powers, and responsibilities required of the state under the federal CAA. Section 403.182, Florida Statutes, authorizes FDEP to approve local pollution control programs, and provides for the State air pollution control program administered by FDEP to supersede a local program if FDEP determines that an approved local program is inadequate and the locality fails to take the necessary corrective actions. Section 320.03(6), Florida Statutes, authorizes FDEP to establish an Air Pollution Control Trust Fund and use a $1 fee on every motor vehicle license registration sold in the State for air pollution control purposes. As evidence of the adequacy of FDEP's resources, EPA submitted a letter to Florida 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 Florida can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0507. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Florida satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2013, therefore Florida's grants were finalized. EPA has made the preliminary determination that Florida has adequate resources and authority for implementation of the 2010 1-hour NO2 NAAQS.

    Section 110(a)(2)(E)(ii) requires that the state comply with section 128 of the CAA. Section 128 requires that the SIP provide: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed.

    For purposes of section 128(a)(1), Florida has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by an appointed Secretary. Appeals of final administrative orders and permits are available only through the judicial appellate process described at Florida Statute 120.68, F.S., Judicial review. As such, a “board or body” is not responsible for approving permits or enforcement orders in Florida, and the requirements of section 128(a)(1) are not applicable.

    Regarding section 128(a)(2), on July 30, 2012, EPA approved Florida statutes into the SIP to comply with section 128 respecting state boards. See 77 FR 44485. Specifically, the following provisions of Florida Statutes, 112.3143(4), F.S., Voting conflicts and 112.3144, F.S, Full and public disclosure of financial interests were incorporated into the SIP to satisfy the conflict of interest provisions applicable to the head of FDEP and all public officers within the Department. EPA has made the preliminary determination that the State has adequately addressed the requirements of section 128(a)(2), and accordingly has met the requirements of section 110(a)(2)(E)(ii) with respect to infrastructure SIP requirements.

    Therefore, EPA is proposing to approve Florida's infrastructure SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).

    7. 110(a)(2)(F) Stationary source monitoring and reporting: 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. FDEP's infrastructure SIP submission describes the establishment of requirements for compliance testing by emissions sampling and analysis, and for emissions and operation monitoring to ensure the quality of data in the State. The Florida infrastructure SIP submission also describes how the major source and minor source emission inventory programs collect emission data throughout the State and ensure the quality of such data. Florida meets these requirements through Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, F.A.C., which require emissions monitoring and reporting for activities that contribute to NO2 concentrations in the air, including requirements for the installation, calibration, maintenance, and operation of equipment for continuously monitoring or recording emissions, or provide authority for FDEP to establish such emissions monitoring and reporting requirements through SIP-approved permits and require reporting of NO2 emissions.

    The following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(13) authorizes FDEP to “[r]equire persons engaged in operations which may result in pollution to file reports which may contain . . . any other such information as the department shall prescribe . . .”. Section 403.8055 authorizes FDEP to “[a]dopt rules substantively identical to regulations adopted in the Federal Register by the United States Environmental Protection Agency pursuant to federal law. . . .”

    Section 90.401, Florida Statutes, defines relevant evidence as evidence tending to prove or disprove a material fact. Section 90.402, Florida Statutes, states that all relevant evidence is admissible except as provided by law. EPA is unaware of any provision preventing the use of credible evidence in the Florida SIP.23

    23 “Credible Evidence” makes allowances for owners and/or operators to utilize “any credible evidence or information relevant” to demonstrate compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certification and can be used to establish whether or not an owner or operator has violated or is in violation of any rule or standard.

    Additionally, Florida 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. Florida made its latest update to the NEI on November 5, 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 Florida'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 Florida'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. Florida's infrastructure SIP submission identifies air pollution emergency episodes and preplanned abatement strategies as outlined in Florida Statutes 403.131, Injunctive relief, remedies, and 120.569(2)(n), Decisions which affect substantial interests. Section 403.131 authorizes FDEP to enforce compliance with any rule, regulation or permit, order, to enjoin any violation specified in Section 403.061(1) or Florida Statutes. Section 403.061(1) authorizes injunctive relief to prevent irreparable injury to the air, waters, and property, including animal, plant, and aquatic life, of the State and to protect human health, safety, and welfare caused or threatened by any violation. Section 120.569(2)(n) authorizes FDEP to issue emergency orders to address immediate dangers to public health, safety or welfare. These statutes were submitted for inclusion into the SIP to satisfy the requirements of section 110(a)(2)(G) of the CAA and were approved by EPA on July 30, 2012. See 77 FR 44485. EPA has made the preliminary determination that Florida's SIP and practices are adequate for emergency powers related to the 2010 1-hour NO2 NAAQS.

    9. 110(a)(2)(H) 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. FDEP is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in Florida. Florida Statutes subsection 403.061(35) grants FDEP the broad authority to implement the CAA; also, subsection 403.061(9), F.S., authorizes FDEP to adopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state, and from time to time review and modify such programs as necessary. FDEP 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. Florida 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 Florida'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 Florida'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 Florida's infrastructure SIP submission related to the preconstruction PSD permitting requirements of section 110(a)(2)(J), EPA took final action to approve Florida's January 22, 2013, 2010 1-hour NO2 NAAQS infrastructure SIP for theses 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.

    Consultation with government officials (121 consultation): 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. Chapters 62-204, F.A.C., Air Pollution Control Provisions, 62-210, F.A.C., Stationary Sources—General Requirements and 62-212, F.A.C., Stationary Sources—Preconstruction Review, as well as Florida'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. Florida adopted state-wide consultation procedures for the implementation of transportation conformity. Implementation of transportation conformity as outlined in the consultation procedures requires FDEP 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 Florida's SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour NO2 NAAQS when necessary.

    Public notification (127 public notification): Section 403.061(21), Florida Statutes authorizes FDEP to advise, consult cooperate, and enter into agreements with other entities affected by the provisions of this act, rules, or policies of the department. Section 403.061(20) Florida Statues authorizes FDEP to collect and disseminate information relating to pollution. FDEP has public notice mechanisms in place to notify the public of NO2 and other pollutant forecasting, including an air quality monitoring Web site providing alerts, http://www.dep.state.fl.us/air/air_quality/countyaqi.htm. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate the State's ability to provide public notification related to the 2010 NO2 NAAQS when necessary.

    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. FDEP 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 FDEP 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 the visibility protection element of section 110(a)(2)(J) is approvable and that Florida does not need to rely on its regional haze program for this element.

    11. 110(a)(2)(K) Air quality modeling and submission of 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. Chapter 62-204.800, F.A.C., Federal Regulations Adopted by Reference, incorporates by reference 40 CFR 52.21(l), which specifies that air modeling be conducted in accordance with 40 CFR part 51, Appendix W “Guideline on Air Quality Models.” Chapters 62-210 and 62-212 require use of EPA approved modeling related to NO2 concentrations in ambient air. Florida Statute 403.061(13) authorizes FDEP to require persons to file reports which may contain information used for modeling and 403.061(18) authorizes FDEP to encourage and conduct studies related to pollution. FDEP has the technical capability to conduct or review all air quality modeling associated with the NSR program and SIP related modeling, except photo chemical grid modeling which is contracted out. Additionally, Florida supports a regional effort to coordinate the development of emissions inventories and conduct regional modeling for NOX, which includes NO2. Taken as a whole, Florida's air quality regulations and statutes demonstrate that FDEP 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 Florida's SIP and practices adequately demonstrate the State's ability to provide for air quality 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 review of PSD and NNSR permits comes from a processing fee, submitted by permit applicants, required by paragraph 403.087(6)(a) of the Florida Statute.

    These regulations demonstrate that Florida has the authority to provide FDEP ensures this is sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. Additionally, Florida has a fully approved title V operating permit program at Chapter 62-213.300 F.A.C.24 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 Florida's SIP and practices adequately provide for permitting fees related to the 2010 NO2 NAAQS, when necessary. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submission with respect to section 110(a)(2)(L).

    24 Title V program regulations are federally-approved but not incorporated into the federally-approved SIP.

    13. 110(a)(2)(M) Consultation and 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. Florida statute 403.061(21) authorizes FDEP to “[a]dvise, consult, cooperate 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, FDEP 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 Florida's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour NO2 NAAQS when necessary.

    V. Proposed Action

    With the exception of the elements related to the ambient air quality monitoring and data system of section 110(a)(2)(B), 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 of prongs 1 and 2 of section 110(a)(2)(D)(i), EPA is proposing to approve Florida's January 22, 2013, SIP submission to incorporate provisions into the Florida SIP to address infrastructure requirements for the 2010 1-hour NO2 NAAQS. EPA is proposing to approve portions of Florida's infrastructure submission for the 2010 1-hour NO2 NAAQS because this submission is consistent with section 110 of the CAA.

    VI. Statutory and Executive Order Reviews

    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).

    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.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 8, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-17055 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2016-0133, FRL-9949-33-Region 10] Approval and Promulgation of Implementation Plans; Alaska: Infrastructure Requirements for the 2010 Nitrogen Dioxide and 2010 Sulfur Dioxide Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Whenever a new or revised National Ambient Air Quality Standard (NAAQS) is promulgated, states must submit a plan for the implementation, maintenance and enforcement of such standard, commonly referred to as infrastructure requirements. The Environmental Protection Agency (EPA) is proposing to approve the May 12, 2015 Alaska State Implementation Plan (SIP) submission as meeting the infrastructure requirements for the 2010 nitrogen dioxide (NO2) and 2010 sulfur dioxide (SO2) NAAQS.

    DATES:

    Comments must be received on or before August 19, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2016-0133, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from http://www.regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information that is restricted by statute from disclosure. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy during normal business hours at the Office of Air and Waste, EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101.

    FOR FURTHER INFORMATION CONTACT:

    Kristin Hall at (206) 553-6357 or [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    Table of Contents I. Background II. Infrastructure Elements III. EPA Approach to Review of Infrastructure SIP Submissions IV. EPA Evaluation V. Proposed Action VI. Statutory and Executive Order Reviews I. Background

    On January 22, 2010, the EPA established a primary NO2 NAAQS at 100 parts per billion (ppb), averaged over one hour, supplementing the existing annual standard (75 FR 6474). On June 2, 2010, the EPA promulgated a revised primary SO2 NAAQS at 75 ppb, based on a three-year average of the annual 99th percentile of one-hour daily maximum concentrations (75 FR 35520). The Clean Air Act (CAA) requires that states submit SIPs meeting CAA sections 110(a)(1) and (2) within three years after promulgation of a new or revised NAAQS. CAA sections 110(a)(1) and (2) require states to address basic SIP elements, including but not limited to emissions inventories, monitoring, and modeling to provide for the implementation, maintenance and enforcement of the NAAQS, the so-called infrastructure requirements. On September 13, 2013, the EPA issued guidance to address the infrastructure requirements for multiple standards, including the 2010 NO2 and SO2 NAAQS.1

    1 Stephen D. Page, Director, Office of Air Quality Planning and Standards. “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).” Memorandum to EPA Air Division Directors, Regions 1-10, September 13, 2013.

    On May 12, 2015, the Alaska Department of Environmental Conservation (ADEC) made a submission for purposes of CAA sections 110(a)(1) and (2) for the 2010 NO2 and 2010 SO2 NAAQS. We note that the submission also included revisions to Alaska's transportation conformity regulations, approved on September 8, 2015 (80 FR 53735), and updates to general air quality and permitting regulations, approved on May 19, 2016 (81 FR 31511).

    II. Infrastructure Elements

    CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised standard is promulgated. CAA section 110(a)(2) lists specific elements that states must meet for infrastructure SIP requirements related to a newly established or revised NAAQS. These requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to implement, maintain and enforce the NAAQS. The requirements, with their corresponding CAA subsection, are listed below:

    • 110(a)(2)(A): Emission limits and other control measures.

    • 110(a)(2)(B): Ambient air quality monitoring/data system.

    • 110(a)(2)(C): Program for enforcement of control measures.

    • 110(a)(2)(D): Interstate transport.

    • 110(a)(2)(E): Adequate resources.

    • 110(a)(2)(F): Stationary source monitoring system.

    • 110(a)(2)(G): Emergency power.

    • 110(a)(2)(H): Future SIP revisions.

    • 110(a)(2)(I): Areas designated nonattainment and applicable requirements of part D.

    • 110(a)(2)(J): Consultation with government officials; public notification; and Prevention of Significant Deterioration (PSD) and visibility protection.

    • 110(a)(2)(K): Air quality modeling/data.

    • 110(a)(2)(L): Permitting fees.

    • 110(a)(2)(M): Consultation/participation by affected local entities.

    The EPA's guidance document clarified that two elements identified in CAA section 110(a)(2) are not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather, are due at the time the nonattainment area plan requirements are due, pursuant to CAA section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment new source review (NSR), nor does it address CAA section 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not triggered by a new or revised NAAQS, because the visibility requirements in part C, title I of the CAA are not changed by a new or revised NAAQS.

    III. EPA Approach to Review of Infrastructure SIP Submissions

    The EPA is acting upon the May 12, 2015, submission from Alaska that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO2 and 2010 SO2 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 the 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.

    The 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, the 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 the 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.2 The 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, the 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.

    2 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    The following examples of ambiguities illustrate the need for the 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 the 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 CAA, which specifically address nonattainment SIP requirements.3 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 the 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.4 This ambiguity illustrates that, rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, the EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

    3 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    4 The EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    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 the 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, the 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, the EPA can elect to act on such submissions either individually or in a larger combined action.5 Similarly, the 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, the EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.6

    5 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (the EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of the EPA's 2008 fine particulate matter (PM2.5) NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (the EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    6 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to the EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). The EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), the EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submission.

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, the 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, for example, 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.7

    7 For example, implementation of the 1997 fine particulate matter NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

    The EPA notes that interpretation of section 110(a)(2) is also necessary when the EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, the 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), the 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, the 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, the 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, the 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.8 The EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).9 The EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, the 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. The EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.10 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, the 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, the EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

    8 The EPA notes, however, that nothing in the CAA requires the EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not the EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    9 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    10 The EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions regarding section 110(a)(2)(D)(i)(I).

    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, the EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains the 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 the 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, the EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (a)(2)(D)(i)(II), and (a)(2)(J) focuses upon the structural PSD program requirements contained in part C and the 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 the 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 the EPA considers irrelevant in the context of an infrastructure SIP action.

    For other section 110(a)(2) elements, however, the EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP 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, the 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, the 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 the EPA's regulations that pertain to such programs.

    With respect to certain other issues, the 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 the EPA's policies addressing such excess emissions (“SSM”); 11 (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 the EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007). Thus, the 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.12 It is important to note that the 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.

    11 Subsequent to issuing the 2013 Guidance, the EPA's interpretation of the CAA with respect to the approvability of affirmative defense provisions in SIPs has changed. See “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” 80 FR 33839 (June 12, 2015). As a result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the EPA's view concerning the validity of affirmative defense provisions, in light of the requirements of section 113 and section 304.

    12 By contrast, the EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption or affirmative defense for excess emissions during SSM events, then the EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

    The EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. The 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 the 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 the EPA evaluates adequacy of the infrastructure SIP submission. The EPA believes that a better approach is for states and the 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, the 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, the 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 the EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a “SIP call” whenever the EPA determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.13 Section 110(k)(6) authorizes the EPA to correct errors in past actions, such as past approvals of SIP submissions.14 Significantly, the 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 the 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, the 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.15

    13 For example, the EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    14 The EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). The EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    15 See, e.g., the EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).

    IV. EPA Evaluation 110(a)(2)(A): Emission Limits and Other Control Measures

    CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits 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 of the CAA.

    State submission: The submission cites Alaska environmental and air quality laws set forth at Alaska Statutes (AS) Chapters 46.03 Environmental Conservation and 46.14 Air Quality Control, and regulations set forth at 18 AAC 50 Alaska Administrative Code Title 18 Environmental Conservation, Chapter 50 Air Quality Control (18 AAC 50). The relevant regulations are listed below:

    • 18 AAC 50.010: Ambient Air Quality Standards.

    • 18 AAC 50.015: Air Quality Designations, Classifications, and Control Regions.

    • 18 AAC 50.040: Federal Standards Adopted by Reference.

    • 18 AAC 50.055: Industrial Processes and Fuel Burning Equipment.

    • 18 AAC 50.060: Pulp Mills.

    • 18 AAC 50.260: Guidelines for Best Available Retrofit Technology Under the Regional Haze Rule.

    • 18 AAC 50.302: Construction Permits.

    • 18 AAC 50.306: Prevention of Significant Deterioration Permits.

    • 18 AAC 50.345: Construction and Operating Permits: Standard Permit Conditions.

    • 18 AAC 50.508: Minor Permits Requested by the Owner or Operator.

    • 18 AAC 50.540: Minor Permit Application.

    • 18 AAC 50.542: Minor Permit Review and Issuance.

    • 18 AAC Chapter 53 Fuel Requirements for Motor Vehicles.

    EPA analysis: On September 19, 2014, the EPA approved numerous revisions to the Alaska SIP, including updates to 18 AAC 50.010 Ambient Air Quality Standards to reflect revisions to the NAAQS, including the 2010 NO2 and the 2010 SO2 NAAQS (79 FR 56268). In addition, the EPA recently approved updates to a number of regulations in 18 AAC 50 on May 19, 2016 (81 FR 31511).

    Alaska generally regulates emissions of NO2, and SO2 through its SIP-approved major and minor new source review (NSR) permitting programs, in addition to other rules described below. We note that there are no areas in Alaska currently designated nonattainment for the 2010 NO2 NAAQS or the 2010 SO2 NAAQS, and that the EPA has not yet completed designations for the 2010 SO2 NAAQS. However, the EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D, title I of the CAA to be governed by the submission deadline of CAA section 110(a)(1). Regulations and other control measures for purposes of attainment planning under part D, title I of the CAA are due on a different schedule than infrastructure SIPs.

    Alaska's major NSR program for attainment and unclassifiable areas generally incorporates certain Federal PSD program regulations by reference into the Alaska SIP. The EPA most recently approved revisions to Alaska's PSD permitting program on May 19, 2016 (81 FR 31511). The current Alaska SIP-approved PSD permitting program incorporates by reference specific regulations at 40 CFR 52.21 and 40 CFR 51.166 as of December 9, 2013.

    With respect to Alaska's minor NSR permitting program, we have determined that the program regulates minor sources of NO2 and SO2. In addition, Alaska's SIP contains rules that establish controls to limit combustion-generated pollutants. These controls include incinerator emission standards, emission limits for specific industrial processes and fuel burning equipment, emission limits for pulp mills, visible emission limits on marine vessel emissions, and fuel requirements for motor vehicles. Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(A) for the 2010 NO2 and 2010 SO2 NAAQS.

    In this action, we are not proposing to approve or disapprove any existing Alaska provisions with respect to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. The EPA believes that a number of states may have SSM provisions that are contrary to the CAA and existing EPA guidance and the EPA is addressing such state regulations in a separate action.16 In the meantime, we encourage any state having a deficient SSM provision to take steps to correct it as soon as possible.

    16 The EPA issued a final action titled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction: Final Rule.” This rulemaking responds to a petition for rulemaking filed by the Sierra Club that concerns SSM provisions in 39 states' SIPs (June 12, 2015, 80 FR 33840).

    In addition, we are not proposing to approve or disapprove any existing Alaska rules with respect to director's discretion or variance provisions. The EPA believes that a number of states may have such provisions that are contrary to the CAA and existing EPA guidance (e.g., November 24, 1987, 52 FR 45109), and the EPA plans to take action in the future to address such state regulations through appropriate statutory mechanisms. In the meantime, we encourage any state having a director's discretion or variance provision that is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

    110(a)(2)(B): Ambient Air Quality Monitoring/Data System

    CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for the establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request.

    State submission: The submission references Alaska statutory and regulatory authority to conduct ambient air monitoring investigations. AS 46.03.020 Powers of the department paragraph (5) provides authority to undertake studies, inquiries, surveys, or analyses essential to the accomplishment of the purposes of ADEC. AS 46.14.180 Monitoring provides authority to require sources to monitor emissions and ambient air quality to demonstrate compliance with applicable permit program requirements. 18 AAC 50.201 Ambient Air Quality Investigation provides authority to require a source to do emissions testing, reduce emissions, and apply controls to sources.

    The submission references ADEC's revised Quality Assurance Project Plan for the State of Alaska Air Monitoring and Quality Assurance Program as amended through February 23, 2010. This document is adopted by reference into the State Air Quality Control Plan at 18 AAC 50.030(4). Validated State & Local Air Monitoring Stations, and Special Purpose Monitoring ambient air quality monitoring data are verified, and then electronically reported to the EPA through the Air Quality System on a quarterly basis.

    The submission also references 18 AAC 50.035 Documents, Procedures, and Methods Adopted by Reference which include the most current, Federal reference and interpretation methods for NO2 and SO2. These methods are used by ADEC in its ambient air quality monitoring program to determine compliance with the standards. The submission cites the regulatory requirements related to monitoring found at 18 AAC 50.201 Ambient Air Quality Investigation, 18 AAC 50.215 Ambient Air Quality Analysis Methods, and 18 AAC 50.220 Enforceable Test Methods.

    EPA analysis: A comprehensive air quality monitoring plan, intended to meet the requirements of 40 CFR part 58 was submitted by Alaska to the EPA on January 18, 1980 (40 CFR 52.70) and approved by the EPA on April 15, 1981. This air quality monitoring plan has been subsequently updated and approved by the EPA on October 28, 2015. The plan includes the implementation of NO2 and SO2 monitoring as required in 40 CFR part 58. We are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(C): Program for Enforcement of Control Measures

    CAA section 110(a)(2)(C) requires states to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources, including a program to meet PSD and nonattainment NSR requirements.

    State submission: The submission references ADEC's statutory authority to regulate stationary sources via an air permitting program established in AS 46.14 Air Quality Control, Article 01 General Regulations and Classifications and Article 02 Emission Control Permit Program. The submission states that ADEC's PSD/NSR programs were approved by the EPA on August 14, 2007 (72 FR 45378). The submission references the following regulations:

    • 18 AAC 50.020: Baseline Dates and Maximum Allowable Increases.

    • 18 AAC 50.035: Documents, Procedures and Methods Adopted by Reference.

    • 18 AAC 50.040: Federal Standards Adopted by Reference.

    • 18 AAC 50.045: Prohibitions.

    • 18 AAC 50.110: Air Pollution Prohibited.

    • 18 AAC 50.215: Ambient Air Quality Analysis Methods.

    • 18 AAC 50.302: Construction Permits.

    • 18 AAC 50.306: Prevention of Significant Deterioration Permits.

    • 18 AAC 50.345: Construction and Operating Permits: Standard Permit Conditions.

    • 18 AAC 50.502: Minor Permits for Air Quality Protection.

    • 18 AAC 50.508: Minor Permits Requested by the Owner or Operator.

    The submission states that a violation of the prohibitions in the regulations above, or any permit condition, can result in civil actions (AS 46.03.760 Civil action for pollution; damages), administrative penalties (AS 46.03.761 Administrative penalties), or criminal penalties (AS 46.03.790 Criminal penalties). In addition, the submission refers to regulations pertaining to compliance orders and enforcement proceedings found at 18 AAC Chapter 95 Administrative Enforcement.

    EPA analysis: With respect to the requirement to have a program providing for enforcement of all SIP measures, we are proposing to find that Alaska statute provides ADEC authority to enforce air quality regulations, permits, and orders promulgated pursuant to AS 46.03 and AS 46.14. ADEC staffs and maintains an enforcement program to ensure compliance with SIP requirements. ADEC has emergency order authority when there is an imminent or present danger to health or welfare or potential for irreversible or irreparable damage to natural resources or the environment. Enforcement cases may be referred to the State Department of Law. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C) related to enforcement for the 2010 NO2 and 2010 SO2 NAAQS.

    To generally meet the requirements of CAA section 110(a)(2)(C) with respect to the regulation of construction of new or modified stationary sources, states are required to have PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2010 NO2 and 2010 SO2 NAAQS. As explained above, we are not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D, title I of the CAA.

    The EPA most recently approved revisions to Alaska's PSD program on May 19, 2016 (81 FR 31511). Alaska's SIP-approved PSD program incorporates by reference certain Federal PSD program requirements at 40 CFR 52.21. In some cases, ADEC adopted provisions of 40 CFR 51.166 rather than the comparable provisions of 40 CFR 52.21 because 40 CFR 51.166 was a better fit for a SIP-approved PSD program. The Alaska PSD program incorporates by reference Federal PSD requirements at 40 CFR 52.21 and 40 CFR 51.166 revised as of December 9, 2013.

    With respect to CAA section 110(a)(2)(C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the state has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of CAA section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the state has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Alaska has shown that it has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gas (GHG) emissions. As discussed below, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C), (D)(i)(II) and (J) with respect to PSD.

    On January 4, 2013, the U.S. Court of Appeals in the District of Columbia, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment that remanded two of the EPA's rules implementing the 1997 PM2.5 NAAQS, including the “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” (73 FR 28321, May 16, 2008) (2008 PM2.5 NSR Implementation Rule). The court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. Subpart 4 of part D, title I of the CAA establishes additional provisions for particulate matter nonattainment areas. The 2008 PM2.5 NSR Implementation Rule addressed by the Court's decision promulgated NSR requirements for implementation of PM2.5 in both nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of subpart 4 only pertain to nonattainment areas, the EPA does not consider the portions of the 2008 PM2.5 NSR Implementation Rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the Court's opinion. Moreover, the EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 PM2.5 NSR Implementation Rule in order to comply with the Court's decision.

    Accordingly, our proposed approval of elements 110(a)(2)(C), (D)(i)(II) and (J) with respect to the PSD requirements does not conflict with the Court's opinion. The EPA interprets the CAA section 110(a)(1) and (2) infrastructure submissions due three years after adoption or revision of a NAAQS to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which are due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as ten years following designations for some elements.

    In addition, on June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S. Ct. 2427. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

    In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply the EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, the EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g., 40 CFR 51.166(b)(48)(v)).

    The EPA recently revised federal PSD rules in light of the Supreme Court decision (May 7, 2015, 80 FR 26183). In addition, we anticipate that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. We do not expect that all states have revised their existing PSD program regulations yet, however, we are evaluating submitted PSD program revision to ensure that the state's program correctly addresses GHGs, consistent with the Court's decision.

    At present, the EPA has determined the Alaska SIP is sufficient to satisfy CAA section 110(a)(2)(C), (a)(2)(D)(i)(II) and (a)(2)(J) with respect to GHGs because the PSD permitting program previously-approved by the EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT.

    The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that the EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect our proposed approval of the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C), (a)(2)(D)(i)(II) and (a)(2)(J) as those elements relate to a comprehensive PSD program.

    Turning to the minor NSR requirement, we have determined that the Alaska Federally-approved minor NSR rules regulate minor sources for purposes of the 2010 NO2 and 2010 SO2 NAAQS. Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(C) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(D)(i): Interstate Transport

    CAA section 110(a)(2)(D)(i) requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance of the NAAQS in another state (CAA section 110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality, or from interfering with measures required to protect visibility (i.e., measures to address regional haze) in any state (CAA section 110(a)(2)(D)(i)(II)).

    We note that Alaska's May 12, 2015, submission does not address the requirements of 110(a)(2)(D)(i)(I) for the 2010 NO2 and 2010 SO2 NAAQS. ADEC has addressed these requirements in a separate submission, and we intend to evaluate them in a future action. In this action, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) and 110(a)(2)(D)(ii) for the 2010 NO2 and 2010 SO2 NAAQS.

    State submission: For purposes of CAA section 110(a)(2)(D)(i)(II), the submission references the Alaska SIP-approved PSD program and the Alaska Regional Haze Plan.

    EPA analysis: CAA section 110(a)(2)(D)(i)(II) requires state SIPs to contain adequate provisions prohibiting emissions which will interfere with any other state's required measures to prevent significant deterioration (PSD) of its air quality (prong 3), and adequate provisions prohibiting emissions which will interfere with any other state's required measures to protect visibility (prong 4).

    To address whether emissions from sources in Alaska interfere with any other state's required measures to prevent significant deterioration of air quality, the submissions referenced the Alaska Federally-approved PSD program. As discussed above, Alaska's SIP-approved PSD program last revised on May 19, 2016, currently incorporates by reference Federal PSD requirements as of December 9, 2013 (81 FR 31511). We are therefore proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) with respect to PSD (prong 3) for the 2010 NO2 and 2010 SO2 NAAQS.

    To address whether emissions from sources in Alaska interfere with any other state's required measures to protect visibility, the submission references the Alaska Regional Haze SIP, which was submitted to the EPA on March 29, 2011. The Alaska Regional Haze SIP addresses visibility impacts across states within the region. On February 14, 2013, the EPA approved the Alaska Regional Haze SIP, including the requirements for best available retrofit technology (78 FR 10546).

    The EPA believes, as noted in the 2013 guidance, that with respect to the CAA section 110(a)(2)(D)(i)(II) visibility sub-element, where a state's regional haze SIP has been approved as meeting all current obligations, a state may rely upon those provisions in support of its demonstration that it satisfies the requirements of CAA section 110(a)(2)(D)(i)(II) as it relates to visibility. Because the Alaska Regional Haze SIP was found to meet Federal requirements, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2010 NO2 and 2010 SO2 NAAQS (prong 4).

    110(a)(2)(D)(ii): Interstate and International Transport Provisions

    CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). Specifically, CAA section 126(a) requires new or modified major sources to notify neighboring states of potential impacts from the source.

    State submission: The submission references Alaska's Federally-approved PSD program and revisions to the SIP submitted by ADEC to update the Alaska PSD program.

    EPA analysis: At 18 AAC 50.306(b), Alaska's PSD program incorporates by reference the general provisions of 40 CFR 51.166(q)(2) to describe the public participation procedures for PSD permits, including requiring notice to states whose lands may be affected by the emissions of sources subject to PSD. As a result, Alaska's PSD regulations provide for notice consistent with the requirements of the Federal PSD program. Alaska also has no pending obligations under section 115 or 126(b) of the CAA. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(E): Adequate Resources

    CAA section 110(a)(2)(E) requires each state to provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of Federal or state law from carrying out the SIP or portion thereof), (ii) requirements that the state comply with the requirements respecting state boards under CAA section 128 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of such SIP provision.

    State submission: The submission asserts that ADEC maintains adequate personnel, funding, and authority to implement the SIP. The submission refers to AS 46.14.030 State Air Quality Control Plan which provides ADEC statutory authority to act for the State and adopt regulations necessary to implement the State air plan. The submission also references 18 AAC 50.030 State Air Quality Control Plan which provides regulatory authority to implement and enforce the SIP.

    With respect to CAA section 110(a)(2)(E)(ii), the submission states that Alaska's regulations on conflict of interest are found in Title 2 Administration, Chapter 50 Alaska Public Offices Commission: Conflict of Interest, Campaign Disclosure, Legislative Financial Disclosure, and Regulations of Lobbying (2 AAC 50.010-2 AAC 50.920). Regulations concerning financial disclosure are found in Title 2, Chapter 50, Article 1—Public Official Financial Disclosure. There are no state air quality boards in Alaska. The ADEC commissioner, however, as an appointed official and the head of an executive agency, is required to file a financial disclosure statement annually, by March 15th of each year, with the Alaska Public Offices Commission (APOC). These disclosures are publically available through APOC's Anchorage office. Alaska's Public Officials Financial Disclosure Forms and links to Alaska's financial disclosure regulations can be found at the APOC Web site: http://doe.alaska.gov/apoc/home.html.

    With respect to CAA section 110(a)(2)(E)(iii) and assurances that the State has responsibility for ensuring adequate implementation of the plan where the State has relied on local or regional government agencies, the submission references statutory authority and requirements for establishing local air pollution control programs found at AS 46.14.400 Local air quality control programs.

    The submission also states that ADEC provides technical assistance and regulatory oversight to the Municipality of Anchorage (MOA), Fairbanks North Star Borough (FNSB) and other local jurisdictions to ensure that the State Air Quality Control Plan and SIP objectives are satisfactorily carried out. ADEC has a Memorandum of Understanding with the MOA and FNSB that allows them to operate air quality control programs in their respective jurisdictions. The South Central Clean Air Authority has been established to aid the MOA and the Matanuska-Susitna Borough in pursuing joint efforts to control emissions and improve air quality in the air-shed common to the two jurisdictions. In addition, ADEC indicates the department works closely with local agencies on nonattainment plans.

    EPA analysis: We are proposing to find that the Alaska SIP meets the adequate personnel, funding and authority requirements of CAA section 110(a)(2)(E)(i). Alaska receives sections 103 and 105 grant funds from the EPA and provides matching funds necessary to carry out SIP requirements. For purposes of CAA section 110(a)(2)(E)(ii), we previously approved Alaska's conflict of interest disclosure and ethics regulations as meeting the requirements of CAA section 128 on October 22, 2012 (77 FR 64427). Finally, we are proposing to find that Alaska has provided necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the State has responsibility for ensuring adequate implementation of the SIP as required by CAA section 110(a)(2)(E)(iii). Therefore we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(E) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(F): Stationary Source Monitoring System

    CAA section 110(a)(2)(F) requires (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 the CAA, which reports shall be available at reasonable times for public inspection.

    State submission: The submission states that ADEC has general statutory authority in AS 46.14 Air Quality Control to regulate stationary sources via an air permitting program which includes permit reporting requirements, completeness determinations, administrative actions, and stack source monitoring requirements. The submission states ADEC has regulatory authority to determine compliance with these statutes via information requests (18 AAC 50.200) and ambient air quality investigations (18 AAC 50.201). Monitoring protocols and test methods for stationary sources are adopted by reference, including the Federal reference and interpretation methods for NO2 and SO2. The submission also references the SIP-approved Alaska PSD program. Ambient air quality and meteorological data that are collected for PSD purposes by stationary sources are reported to ADEC on a quarterly and annual basis.

    The submission refers to the following statutory and regulatory provisions which provide authority and requirements for source emissions monitoring, reporting, and correlation with emission limits or standards:

    • AS 46.14.140: Emission control permit program regulations.

    • AS 46.14.180: Monitoring.

    • 18 AAC 50.010: Ambient Air Quality Standards.

    • 18 AAC 50.030: State Air Quality Control Plan.

    • 18 AAC 50.035: Documents, Procedures, and Methods Adopted by Reference.

    • 18 AAC 50.040: Federal Standards Adopted by Reference.

    • 18 AAC 50.200: Information Requests.

    • 18 AAC 50.201: Ambient Air Quality Investigation.

    • 18 AAC 50.220: Enforceable Test Methods.

    • 18 AAC 50.306: Prevention of Significant Deterioration Permits.

    • 18 AAC 50.544: Minor Permits: Content.

    EPA analysis: The Alaska SIP establishes compliance requirements for sources subject to major and minor source permitting to monitor emissions, keep and report records, and collect ambient air monitoring data. 18 AAC 50.200 Information Requests provides ADEC authority to issue information requests to an owner, operator, or permittee for purposes of ascertaining compliance. 18 AAC 50.201 Ambient Air Quality Investigations provides authority to require an owner, operator, or permittee to evaluate the effect emissions from the source have on ambient air quality. In addition, 18 AAC 50.306 Prevention of Significant Deterioration Permits and 18 AAC 50.544 Minor Permits: Content provide for establishing permit conditions to require the permittee to install, use and maintain monitoring equipment, sample emissions, provide source test reports, monitoring data, emissions data, and information from analysis, keep records and make periodic reports on process operations and emissions. This information is made available to the public through public processes outlined in these SIP-approved rules.

    Additionally, states are required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The 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 the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. The 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. Based on the above analysis, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(G): Emergency Episodes

    CAA section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs.

    State submission: The submission cites statutory authority including AS 46.03.820 Emergency powers which provides ADEC with emergency order authority where there is an imminent or present danger to the health or welfare of the people of the state or would result in or be likely to result in irreversible or irreparable damage to the natural resources or environment. The submission also refers to 18 AAC 50.245 Air Episodes and Advisories which authorizes ADEC to declare an air alert, air warning, or air advisory to notify the public and prescribe and publicize curtailment action.

    EPA analysis: Section 303 of the CAA provides authority to the EPA Administrator to restrain any source from causing or contributing to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” The EPA finds that AS 46.03.820 Emergency Powers provides emergency order authority comparable to CAA Section 303. We also find that Alaska's emergency episode rule at 18 AAC 50.245 Air Episodes and Advisories, most recently approved by the EPA on August 14, 2007 (72 FR 45378), is consistent with the requirements of 40 CFR part 51 subpart H for NO2 and SO2 (prevention of air pollution emergency episodes, §§ 51.150 through 51.153). Specifically, 40 CFR 51.150 through 51.153 prescribes the requirements for emergency episode plans based on classification of regions in a state. As listed in 40 CFR 52.71 Classification of Regions, all regions in Alaska are classified Priority III for both NO2 and SO2. Areas classified Priority III do not need to develop episode plans under 40 CFR 51.150 through 51.153.

    Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(H): Future SIP Revisions

    CAA section 110(a)(2)(H) requires that SIPs provide for revision of such plan (i) from time to time 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), except as provided in paragraph 110(a)(3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under the CAA.

    State submission: The submission refers to statutory authority to adopt regulations in order to implement the CAA and the state air quality control program at AS 46.03.020(10)(A) Powers of the Department and AS 46.14.010(a) Emission Control Regulations. The submission also refers to regulatory authority to implement provisions of the CAA at 18 AAC 50.010 Ambient Air Quality Standards. The submission affirms that ADEC regularly updates the Alaska SIP as new NAAQS are promulgated by the EPA.

    EPA analysis: As cited above, the Alaska SIP provides for revisions, and in practice, Alaska regularly submits SIP revisions to the EPA to take into account revisions to the NAAQS and other Federal regulatory changes. We have approved revisions to the Alaska SIP on numerous occasions in the past, most recently on May 19, 2016 (81 FR 31511), March 18, 2015 (80 FR 14038), September 19, 2014 (79 FR 56268), August 9, 2013 (78 FR 48611), May 9, 2013 (78 FR 27071) and January 7, 2013 (78 FR 900). We are proposing to approve the Alaska SIP as meeting the requirements of section 110(a)(2)(H) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(I): Nonattainment Area Plan Revision Under Part D

    EPA analysis: There are two elements identified in CAA section 110(a)(2) not governed by the three-year submission deadline of CAA section 110(a)(1), because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but are rather due at the time of the nonattainment area plan requirements pursuant to section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA section 110(a)(2)(I).

    110(a)(2)(J): Consultation With Government Officials

    CAA section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers with respect to NAAQS implementation requirements pursuant to section 121. CAA section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Lastly, CAA section 110(a)(2)(J) requires states to meet applicable requirements of part C, title I of the CAA related to prevention of significant deterioration and visibility protection.

    State submission: The submission refers to statutory authority to consult and cooperate with officials of local governments, state and Federal agencies, and non-profit groups found at AS 46.030.020 Powers of the department paragraphs (3) and (8). The submission states that municipalities and local air quality districts seeking approval for a local air quality control program shall enter into a cooperative agreement with ADEC according to AS 46.14.400 Local air quality control programs, paragraph (d). ADEC can adopt new CAA regulations only after a public hearing as per AS 46.14.010 Emission control regulations, paragraph (a). In addition, the submission states that public notice and public hearing regulations for SIP submission and air quality discharge permits are found at 18 AAC 15.050 and 18 AAC 15.060. Finally, the submission also references the SIP-approved Alaska PSD program.

    EPA analysis: The EPA finds that the Alaska SIP, including the Alaska rules for major source permitting, contains provisions for consulting with government officials as specified in CAA section 121. Alaska's PSD program provides opportunity and procedures for public comment and notice to appropriate Federal, state and local agencies. We most recently approved revisions to the Alaska PSD program on May 19, 2016 (81 FR 31511). In addition, the EPA most recently approved the Alaska rules that define transportation conformity consultation on September 8, 2015 (80 FR 53735). Finally, on February 14, 2013, we approved the Alaska Regional Haze SIP (78 FR 10546).

    ADEC routinely coordinates with local governments, states, Federal land managers and other stakeholders on air quality issues including transportation conformity and regional haze, and provides notice to appropriate agencies related to permitting actions. Alaska regularly participates in regional planning processes including the Western Regional Air Partnership, which is a voluntary partnership of states, tribes, Federal land managers, local air agencies and the EPA, whose purpose is to understand current and evolving regional air quality issues in the West. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for consultation with government officials for the 2010 NO2 and 2010 SO2 NAAQS.

    Section 110(a)(2)(J) also requires the public be notified if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. ADEC is a partner in the EPA's AIRNOW and Enviroflash Air Quality Alert programs, which provide air quality information to the public for five major air pollutants regulated by the CAA: Ground-level ozone, particulate matter, carbon monoxide, SO2, and NO2. Alaska also provides real-time air monitoring information to the public on the ADEC air quality Web site at http://dec.alaska.gov/applications/air/envistaweb/, in addition to air advisory information. During the summer months, the Fairbanks North Star Borough prepares a weekly Air Quality forecast for the Fairbanks area at http://co.fairbanks.ak.us/airquality/. We are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for public notification for the 2010 NO2 and 2010 SO2 NAAQS.

    Turning to the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C) with respect to permitting. The EPA most recently approved revisions to Alaska's PSD program on May 19, 2016 (81 FR 31511). We are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for PSD for the 2010 NO2 and 2010 SO2 NAAQS. We note that our proposed approval of element 110(a)(2)(J) with respect to PSD is not affected by recent court vacaturs of the EPA's PSD implementing regulations. Please see our discussion regarding section 110(a)(2)(C).

    With respect to the applicable requirements for visibility protection, the EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new applicable requirement related to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective. Based on the analysis above, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(K): Air Quality and Modeling/Data

    CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

    State submission: The submission states that air quality modeling is regulated under 18 AAC 50.215(b) Ambient Air Quality Analysis Methods. Estimates of ambient concentrations and visibility impairment must be based on applicable air quality models, databases, and other requirements specified in the EPA's Guideline on Air Quality Models are adopted by reference in 18 AAC 50.040 Federal Standards Adopted by Reference. Baseline dates and maximum allowable increases are found in Table 2 and Table 3, respectively, at 18 AAC 50.020 Baseline Dates and Maximum Allowable Increases.

    EPA analysis: On May 19, 2016, we approved revisions to 18 AAC 50.215 Ambient Air Quality Analysis Methods and 18 AAC 50.040 Federal Standards Adopted by Reference (81 FR 31511). 18 AAC 50.040, at paragraph (f), incorporates by reference the EPA regulations at 40 CFR part 51, Appendix W Guidelines on Air Quality Models revised as of July 1, 2013.

    Based on the foregoing, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(K) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(L): Permitting Fees

    CAA section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit.

    State submission: The submission states that ADEC's statutory authority to assess and collect permit fees is established in AS 46.14.240 Permit Administration Fees and AS 46.14.250 Emission Fees. The permit fees for stationary sources are assessed and collected by the Air Permits Program according to 18 AAC 50, Article 4. ADEC is required to evaluate emission fee rates at least every four years and provide a written evaluation of the findings (AS 46.14.250(g); 18 AAC 50.410).

    EPA analysis: The EPA fully approved Alaska's title V program on July 26, 2001 (66 FR 38940) with an effective data of September 24, 2001. While Alaska's operating permit program is not formally approved into the SIP, it is a legal mechanism the state can use to ensure that ADEC has sufficient resources to support the air program, consistent with the requirements of the SIP. Before the EPA can grant full approval, a state must demonstrate the ability to collect adequate fees. The Alaska title V program included a demonstration the state will collect a fee from title V sources above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i).

    In addition, Alaska regulations at 18 AAC 50.306(d)(2) and 18 AAC 50.311(d)(2) require fees for purposes of major new source permitting as specified in 18 AAC 50.400 through 18 AAC 50.499. Therefore, we are proposing to conclude that Alaska has satisfied the requirements of CAA section 110(a)(2)(L) for the 2010 NO2 and 2010 SO2 NAAQS.

    110(a)(2)(M): Consultation/Participation by Affected Local Entities

    CAA section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

    State submission: The submission states ADEC has authority to consult and cooperate with officials and representatives of any organization in the State; and persons, organization, and groups, public and private using, served by, interested in, or concerned with the environment of the state. The submission refers to AS 46.030.020 Powers of the department paragraphs (3) and (8) which provide authority to ADEC to consult and cooperate with affected State and local entities. In addition, AS 46.14.400 Local air quality control programs paragraph (d) provides authority for local air quality control programs and requires cooperative agreements between ADEC and local air quality control programs that specify the respective duties, funding, enforcement responsibilities, and procedures.

    EPA analysis: The EPA finds that the Alaska provisions cited above provide for local and regional authorities to participate and consult in the SIP development process. Therefore, we are proposing to approve the Alaska SIP as meeting the requirements of CAA section 110(a)(2)(M) for the 2010 NO2 and 2010 SO2 NAAQS.

    V. Proposed Action

    We are proposing to approve the Alaska SIP as meeting the following CAA section 110(a)(2) infrastructure elements for the 2010 NO2 and 2010 SO2 NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).

    VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the 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 it does not involve technical standards; and

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: June 21, 2016. Dennis J. McLerran, Regional Administrator, Region 10.
    [FR Doc. 2016-17056 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2015-0854; FRL-9948-99-Region 10] Approval of Medford, Oregon; Carbon Monoxide Second 10-Year Limited Maintenance Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a second 10-year carbon monoxide (CO) limited maintenance plan (LMP) for the Medford area, submitted by the Oregon Department of Environmental Quality (ODEQ) on December 11, 2015, along with a supplementary submittal on December 30, 2015, as a revision to its State Implementation Plan (SIP). In accordance with the requirements of the Clean Air Act (CAA), the EPA is approving this SIP revision because it demonstrates that the Medford area will continue to meet the CO National Ambient Air Quality Standards (NAAQS) for a second 10-year period beyond redesignation, through 2025.

    DATES:

    Comments must be received on or before August 19, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2015-0854 at http://www.regulations.gov, or via email to [email protected]gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    John Chi, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, 1200 6th Avenue, Seattle, WA 98101; telephone number: 206-553-1185; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information, please see the direct final action, of the same title, which is located in the Rules and Regulations section of this Federal Register. The EPA is approving the State's SIP revision as a direct final rule without prior proposal because the EPA views this as a noncontroversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule. If the EPA receives no adverse comments, the EPA will not take further action on this proposed rule.

    If the EPA receives adverse comments, the EPA will withdraw the direct final rule and it will not take effect. The EPA will address all public comments in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of the rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    Dated: June 30, 2016. Michelle L. Pirzadeh, Acting Regional Administrator, Region 10.
    [FR Doc. 2016-17058 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0362; FRL-9949-26-Region 4] Air Plan Approval; North Carolina Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), Division of Air Quality (NCDAQ) on August 23, 2013, for inclusion into the North Carolina SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP submission. NCDAQ certified that the North Carolina SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in North Carolina. EPA is proposing to find that portions of North Carolina's infrastructure SIP submission, provided to EPA on August 23, 2013, satisfy certain infrastructure elements for the 2010 1-hour NO2 NAAQS.

    DATES:

    Written comments must be received on or before August 19, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0362 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via telephone at (404) 562-8726 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    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

    1 In these infrastructure SIP submissions states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Unless otherwise indicated, the Title 15A regulations of the North Carolina Administrative Code (“15A NCAC”) cited throughout this rulemaking have either been approved, or submitted for approval into North Carolina's federally-approved SIP. The North Carolina General Statutes (“NCGS”) cited throughout this rulemaking, however, are not approved into the North Carolina SIP unless otherwise indicated.

    This action is proposing to approve North Carolina's infrastructure submission for the applicable requirements of the 2010 1-hour NO2 NAAQS, with the exception of the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the state board requirements of 110(E)(ii). On November 3, 2015, EPA took final action to approve North Carolina's August 23, 2013, infrastructure SIP submission regarding the state board requirements of section 110(a)(2)(E)(ii), for the 2010 1-hour NO2 NAAQS. See 80 FR 67645. Therefore, EPA is not proposing any action today pertaining to section 110(a)(2)(E)(ii). With respect to North Carolina's infrastructure SIP submission related to the provisions pertaining to the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), EPA is not proposing any action at this time. For the aspects of North Carolina's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that North Carolina's already approved SIP meets certain CAA requirements.

    II. What elements are required under sections 110(a)(1) and (2)?

    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 110(a)(2).” 2

    2 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. This proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

    • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources 3

    3 This rulemaking only addresses requirements for this element as they relate to attainment areas.

    • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP Revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 4

    4 As mentioned above, this element is not relevant to this proposed rulemaking.

    • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and PSD and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting Fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions?

    EPA is acting upon the SIP submission from North Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour 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 (NNSR) 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.

    5 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    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.

    6See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    7 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    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

    8See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    9 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

    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

    10 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

    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.

    11 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    12 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    13 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

    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 (GHGs). 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 fine particulate matter (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, among other things, 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.

    14 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

    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

    15 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    16 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    17See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions).

    IV. What is EPA's analysis of how North Carolina addressed the elements of the sections 110(a)(1) and (2) “Infrastructure” provisions?

    North 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. These requirements are met through several North Carolina Administrative Code (NCAC) regulations. Specifically, 15A NCAC 2D .0500 Emission Control Standards establishes emission limits for NO2. The following rules address additional control measures, means and techniques: 15A NCAC 2D .0600 Monitoring: Recordkeeping: Reporting, and 15A NCAC 2D .2600 Source Testing. In addition, NCGS 143-215.107(a)(5), Air quality standards and classifications, provides the North Carolina Environmental Management Commission (EMC) with the statutory authority, “To develop and adopt emission control standards as in the judgment of the Commission may be necessary to prohibit, abate, or control air pollution commensurate with established air quality standards.” 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

    18 On June 12, 2015, EPA published a final action entitled, “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.” See 80 FR 33840.

    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: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. NCGS 143-215.107(a)(2), Air quality standards and classifications, provides the EMC with the statutory authority “To determine by means of field sampling and other studies, including the examination of available data collected by any local, State or federal agency or any person, the degree of air contamination and air pollution in the State and the several areas of the State.”

    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, and includes the annual ambient monitoring network design plan and a certified evaluation of the state's ambient monitors and auxiliary support equipment.19 The latest monitoring network plan for North Carolina was submitted to EPA on July 23, 2015, and on November 19, 2015, EPA approved this plan. North Carolina's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0362.

    19 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58.

    NCGS 143-215.107(a)(2), EPA regulations, along with North Carolina's Ambient Air Monitoring Network Plan, 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. EPA has made the preliminary determination that North Carolina's SIP and practices are adequate for the ambient air quality monitoring and data system requirements 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). To meet these obligations, North Carolina cited the following regulations: 15A NCAC 2D. 0500 Emissions Control Standards; 15A NCAC 2D. 0530 Prevention of Significant Deterioration; 15A NCAC 2D. 0531 Sources in Nonattainment Areas; 15A NCAC 2Q .0300 Construction Operation Permits; and 15A NCAC 2Q .0500 Title V Procedures. Collectively, these regulations enable North Carolina to regulate sources contributing to the 2010 1-hour NO2 NAAQS through enforceable permits. North Carolina also cited to the following statutory provisions as supporting this element: NCGS 143-215.108, Control of sources of air pollution; permits required; NCGS 143-215.107(a)(7), Air quality standards and classifications; and NCGS 143-215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal penalties, and injunctive relief.

    In this action, EPA is proposing to approve North Carolina's infrastructure SIP for the 2010 1-hour NO2 NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP for enforcement of NO2 emissions controls and measures and the regulation of minor sources and modifications to assist in the protection of air quality in nonattainment, attainment or unclassifiable areas.

    Enforcement: NC DAQ's above-described, SIP-approved regulations provide for enforcement of NO2 emission limits and control measures through enforceable permits. In addition, North Carolina cited NCGS 143-215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal penalties, and injunctive relief, which provides NC DENR with the statutory authority to seek civil and criminal penalties, and injunctive relief to enforce air quality rules.

    Preconstruction PSD Permitting for Major Sources: With respect to North Carolina's infrastructure SIP submission related to the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), EPA is not proposing any action today regarding these requirements and instead will act on this portion of the submission in a separate action.

    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. Regulation 15A NCAC 2Q .0300 Construction Operation Permits governs the preconstruction permitting of minor modifications and construction of minor stationary sources.

    EPA has made the preliminary determination that North Carolina's SIP is adequate for enforcement of control measures and regulation of minor sources and construction or 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”). With respect to North Carolina's infrastructure SIP in relation to the interstate transport requirements of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) (prongs 1 through 4), EPA is not proposing any action today regarding these requirements.

    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. Regulations 15A NCAC 2D .0530, Prevention of Significant Deterioration, and 15A NCAC 2D .0531, Sources of Nonattainment Areas, provide how NCDAQ will notify neighboring states of potential impacts from new or modified sources consistent with the requirements of 40 CFR 51.166. These regulations require NC DAQ to provide an opportunity for a public hearing to the public, which includes state or local air pollution control agencies, “whose lands may be affected by emissions from the source or modification” in North Carolina. In addition, North Carolina does not have any pending obligation under sections 115 and 126 of the CAA. Accordingly, EPA has made the preliminary determination that North Carolina's SIP is adequate for ensuring 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 North Carolina's SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i) and (iii). With respect to North Carolina's August 23, 2013, infrastructure SIP submission related to the state board requirements of section 110(a)(2)(E)(ii), EPA took final action to approve these provisions for the 2010 1-hour NO2 NAAQS on November 3, 2015. See 80 FR 67645. EPA's rationale for today's proposal respecting sub-elements (i) and (iii) is described below.

    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), North Carolina's infrastructure SIP submission cites several regulations. Rule 15A NCAC 2Q. 0200, Permit Fees, provides the mechanism by which stationary sources that emit air pollutants pay a fee based on the quantity of emissions. State statutes NCGS 143-215.3, General Powers of Commission and Department: Auxiliary Powers, and NCGS 143-215.107(a)(1), Air Quality Standards and Classifications, provide the EMC with the statutory authority “[t]o prepare and develop, after proper study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in the State or in any designated area of the State.” NCGS 143-215.112, Local air pollution control programs, provides the EMC with the statutory authority “to review and have general oversight and supervision over all local air pollution control programs.” North Carolina has three local air agencies located in Buncombe, Forsyth, and Mecklenburg Counties that implement the air program in these areas.

    As further evidence of the adequacy of NCDAQ's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to North 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 North Carolina can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0362. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. North Carolina satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2015, therefore North Carolina's grants were finalized and closed out. Collectively, these rules and commitments provide evidence that NC DAQ has adequate personnel, funding, and legal authority to carry out the State's implementation plan and related issues. EPA has made the preliminary determination that North Carolina has adequate resources and authority to satisfy sections 110(a)(2)(E)(i) and (iii), North Carolina has adequate resources for implementation of the 2010 1-hour 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. North Carolina's infrastructure submission describes how the State establishes requirements for emissions compliance testing and utilizes emissions sampling and analysis.

    NC DAQ uses these data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with emission regulations and additional EPA requirements. North Carolina meets these requirements through 15A NCAC 2D .0604 Exceptions to Monitoring and Reporting Requirements; 15A NCAC 2D .0605 General Recordkeeping and Reporting Requirements; 15A NCAC 2D .0611 Monitoring Emissions from Other Sources; 15A NCAC 2D .0612 Alternative Monitoring and Reporting Procedures; 15A NCAC 2D .0613 Quality Assurance Program; and 15A NCAC 2D .0614 Compliance Assurance Monitoring. In addition, 15A NCAC 2D .0605(c) General Recordkeeping and Reporting Requirements allows for the use of credible evidence in the event that the NCDAQ Director has evidence that a source is violating an emission standard or permit condition, the Director may require that the owner or operator of any source submit to the Director any information necessary to determine the compliance status of the source. In addition, EPA is unaware of any provision preventing the use of credible evidence in the North Carolina SIP. Also, NCGS 143-215.107(a)(4), Air quality standards and classifications, provides the EMC with the statutory authority “To collect information or to require reporting from classes of sources which, in the judgment of the [EMC], may cause or contribute to air pollution.”

    Stationary sources are required to submit periodic emissions reports to the State by Rule 15A NCAC 2Q .0207 “Annual Emissions Reporting.” North Carolina is also 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 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. North Carolina made its latest update to the 2011 NEI on December 5, 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 North 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 North Carolina's infrastructure SIP submission with respect to section 110(a)(2)(F).

    8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. North Carolina's infrastructure SIP submission cites 15A NCAC 2D .0300, Air Pollution Emergencies, as identifying air pollution emergency episodes and preplanned abatement strategies, and provides the means to implement emergency air pollution episode measures. Under NCGS 143-215.3(a)(12), General powers of Commission and Department; auxiliary powers, if NC DENR finds that such a “condition of . . . air pollution exists and that it creates an emergency requiring immediate action to protect the public health and safety or to protect fish and wildlife, the Secretary of the Department [NC DENR] with the concurrence of the Governor, shall order persons causing or contributing to the . . . air pollution in question to reduce or discontinue immediately the emission of air contaminants or the discharge of wastes.” In addition, NCGS 143-215.3(a)(12) provides NC DENR with the authority to declare an emergency when it finds that a generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. This statute also allows, in the absence of a generalized condition of air pollution, should the Secretary find “that the emissions from one or more air contaminant sources . . . is causing imminent danger to human health and safety or to fish and wildlife, he may with the concurrence of the Governor order the person or persons responsible for the operation or operations in question to immediately reduce or discontinue the emissions of air contaminants . . . or to take such other measures as are, in his judgment, necessary.” EPA has made the preliminary determination that North Carolina's SIP submission is adequate to satisfy the emergency powers obligations of the 2010 1-hour NO2 NAAQS.

    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. NC DAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in North Carolina. NCGS 143-215.107(a)(1) and (a)(10) grant NC DAQ the authority to prepare and develop, after proper study, a comprehensive plan for the prevention of air pollution and implement the CAA, respectively. These provisions also provide NC DAQ the ability and authority to respond to calls for SIP revisions, and North Carolina has provided a number of SIP revisions over the years for implementation of the NAAQS. In addition, State regulation 15A NCAC 2D .2401(d) states that “The EMC may specify through rulemaking a specific emission limit lower than that established under this rule for a specific source if compliance with the lower emission limit is required to attain or maintain the ambient air quality standard for ozone or PM2.5 or any other ambient air quality standard in Section 15A NCAC 2D .0400.” EPA has made the preliminary determination that North 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 North 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 the visibility requirements. With respect to North Carolina's infrastructure SIP submission related to the preconstruction PSD permitting, EPA is not proposing any action today regarding these requirements and instead will act on these portions of the submission in a separate action. EPA's rationale for its proposed action regarding applicable consultation requirements of section 121, the public notification requirements of section 127, and visibility is described below.

    Consultation with government officials (121 consultation): 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. Rules 15A NCAC 2D .0531, Sources in a Nonattainment Areas, 2D .1600, General Conformity, 2D .2000, Transportation Conformity, along with the State'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. North Carolina adopted state-wide consultation procedures for the implementation of transportation conformity. Implementation of transportation conformity as outlined in the consultation procedures requires NC DAQ to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. The Regional Haze SIP provides for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs. EPA has made the preliminary determination that North Carolina's SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour NO2 NAAQS when necessary.

    Public notification (127 public notification): Rule 15A NCAC 2D .0300 Air Pollution Emergencies provides North Carolina with the authority to declare an emergency and notify the public accordingly when it finds a generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. Additionally, the NC DAQ has the North Carolina Air Awareness Program which is a program to educate the public on air quality issues and promote voluntary emission reduction measures. The NC DAQ also features a Web page providing ambient monitoring information regarding current and historical air quality across the State at http://www.ncair.org/monitor/. North Carolina participates in the EPA AirNOW program, which enhances public awareness of air quality in North Carolina and throughout the country. EPA has made the preliminary determination that North 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 for the public notification element of section 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. NC DENR 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 NC DENR 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 North Carolina's infrastructure SIP submission is approvable for the visibility protection element of section 110(a)(2)(J) related to the 2010 1-hour NO2 NAAQS and that North Carolina does not need to rely on its regional haze program to satisfy this element.

    11. 110(a)(2)(K) Air Quality Modeling and Submission of 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. This infrastructure requirement is met through emissions data collected through 15A NCAC 2D .0600 Monitoring: Recordkeeping: Reporting (authorized under NCGS 143-215.107(a)(4)), which provides information to model potential impact of major and some minor sources. 15A NCAC 2D .0530 Prevention of Significant Deterioration and 15A NCAC 2D .0531 Sources in Nonattainment Areas require that air modeling be conducted in accordance with 40 CFR part 51, Appendix W, Guideline on Air Quality Models. NCGS 143-215.107(a) also provides authority for the EMC to determine by means of field sampling and other studies, the degree of air contamination and air pollution in the State. These regulations demonstrate that North Carolina has the authority to perform air quality modeling and to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour NO2 NAAQS. The NC DAQ currently has personnel with training and experience to conduct source-oriented dispersion modeling that would likely be used in NO2 NAAQS applications with models approved by EPA. Additionally, North Carolina participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2010 1-hour NO2 NAAQS, for the Southeastern states. Taken as a whole, North Carolina's air quality regulations and practices demonstrate that NC DAQ has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS has been promulgated, and to provide such information to the EPA Administrator upon request. EPA has made the preliminary determination that North 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: Section 110(a)(2)(L) 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.

    To satisfy these requirements, North Carolina's infrastructure SIP submission cites Regulation 15A NCAC 2Q .0200 Permit Fees, which 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 sufficient fee to cover the costs of the permitting program. Additionally, North Carolina has a fully approved title V operating permit program at 15A NCAC.0500 Emissions Control Standards and 2Q .0500, Title V Procedures, 20 which include provisions to implement and enforce PSD and NNSR permits once Title V permits have been issued. The fees collected under 15A NCAC 2Q .0200 also support this activity. NCGS 143-215.3, General powers of Commission and Department; auxiliary Powers, provides authority for NC DAQ to require a processing fee in an amount sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. EPA has made the preliminary determination that North Carolina's SIP and practices adequately provide for permitting fees related to the 2010 1-hour NO2 NAAQS, when necessary.

    20 Title V program regulations are federally-approved but not incorporated into the federally-approved SIP.

    13. 110(a)(2)(M) Consultation/participation by affected local entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Rule 15A NCAC 2Q .0530, Prevention of Significant Deterioration, requires that the NCDAQ notify the public, including affected local entities, of PSD permit applications and associated information related to PSD permits, and the opportunity for comment prior to making final permitting decisions. NCGS 150B-21.1 and 150B-21.2 authorize and require NCDAQ to advise, consult, cooperate 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. Also, Rule 15A NCAC 2D .2000 Transportation Conformity requires consultation with all affected partners to be implemented for transportation conformity determinations. Furthermore, NC DAQ 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, Regional Haze Implementation Plan, and the 8-Hour Ozone Attainment Demonstration for the North Carolina portion of the Charlotte-Gastonia-Rock Hill NC-SC nonattainment area. EPA has made the preliminary determination that North Carolina's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour NO2 NAAQS when necessary.

    V. Proposed Action

    EPA is proposing to approve that portions of NCDAQ's infrastructure SIP submission, submitted August 23, 2013, for the 2010 1-hour NO2 NAAQS, has met the above described infrastructure SIP requirements. EPA is proposing to approve these portions of North Carolina's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because these aspects of the submission are consistent with section 110 of the CAA. The PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), will not be addressed by EPA at this time. EPA has already taken action to approve North Carolina's infrastructure SIP submission related to section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS.

    VI. Statutory and Executive Order Reviews

    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).

    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.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 8, 2016. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2016-17071 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2015-0015; A-1-FRL-9949-16-Region 1] Air Plan Approval; RI; Regional Haze Five Year Progress Report AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Rhode Island on January 7, 2015. This SIP revision includes Rhode Island's regional haze progress report and adequacy determination for the first regional haze implementation period. This action is being taken under the Clean Air Act.

    DATES:

    Written comments must be received on or before August 19, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R01-OAR-2015-0015 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e, on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Anne K. McWilliams, Air Quality Planning Unit, U.S. Environmental Protection Agency, New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone (617) 918-1697, facsimile (617) 918-0697, email [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    Dated: July 5, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.
    [FR Doc. 2016-16940 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0756; FRL-9949-27-Region 4] Air Plan Approval/Disapproval; Alabama Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve in part and disapprove in part portions of the April 23, 2013, and December 9, 2015, update State Implementation Plan (SIP) submissions, submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), for inclusion into the Alabama SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. ADEM certified that the Alabama SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in Alabama. With the exception of provisions pertaining to prevention of significant deterioration (PSD) permitting, and visibility in other states, for which EPA is proposing no action through this notice, and with the exception of the provisions respecting state boards, for which EPA is proposing disapproval, EPA is proposing to approve Alabama's infrastructure SIP submissions provided to EPA on April 23, 2013, and updated on December 9, 2015, as satisfying the required infrastructure elements for the 2010 NO2 NAAQS.

    DATES:

    Written comments must be received on or before August 19, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2014-0756 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Wong can be reached via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    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. Sections 110(a)(2) require 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 NO2 NAAQS to EPA no later than January 22, 2013.1

    1 In these infrastructure SIP submissions states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Throughout this rulemaking, unless otherwise indicated, the term “ADEM Admin. Code r.” indicates that the cited regulation has been approved into Alabama's federally-approved SIP. The term “Ala. Code” refers to Alabama state statutes, which, unless otherwise indicated, are not a part of the federally-approved SIP.

    This action is proposing to approve Alabama's infrastructure SIP submissions for the applicable requirements of the 2010 1-hour NO2 NAAQS, 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 of section 110(a)(2)(D)(i), (prongs 1, 2 and 4), and the state board requirements of section 110(a)(2)(E)(ii). On March 18, 2015, EPA approved Alabama's April 23, 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 14019.2 Therefore, EPA is not proposing any action today pertaining to sections 110(a)(2)(C), prong 3 of D(i) and (J). Additionally, today, EPA is not taking action related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of prongs 1 and 2 of section 110(a)(2)(D)(i), and prong 4 of (D)(i). With respect to Alabama's infrastructure SIP submissions related to section 110(a)(2)(E)(ii) requirements respecting the section 128 state board requirements, EPA is proposing to disapprove this element of Alabama's submissions in this rulemaking. For the aspects of Alabama's submittals proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Alabama's already approved SIP meets certain CAA requirements.

    2 ADEM clarified that its December 9, 2015, submission was not intended to address the PSD requirements that were approved by EPA on March 18, 2015. See www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0756.

    II. What elements are required under sections 110(a)(1) and (2)?

    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 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 3 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).”

    3 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. Today's proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

    • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources 4

    4 This rulemaking only addresses requirements for this element as they relate to attainment areas.

    • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 5

    5 As mentioned above, this element is not relevant to today's proposed rulemaking.

    • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and PSD and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions?

    EPA is acting upon the SIP submissions from Alabama 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.6 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.

    6 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    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.7 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.8 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.

    7 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    8 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    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.9 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.10

    9 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    10 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

    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.11

    11 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

    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.12 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).13 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.14 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.

    12 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    13 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    14 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

    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 GHGs. 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.15 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.

    15 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

    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.16 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.17 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.18

    16 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    17 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    18 See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).

    IV. What is EPA's analysis of how Alabama addressed the elements of the sections 110(a)(1) and (2) “infrastructure” provisions?

    Alabama's infrastructure submissions address 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. Several regulations within Alabama's SIP are relevant to air quality control. The regulations described below have been federally approved in the Alabama SIP and include enforceable emission limitations and other control measures for activities that contribute to NO2 concentrations in the ambient air and provide ADEM the authority to establish such limits and measures as well as schedules for compliance to meet the applicable requirements of the CAA. ADEM Admin. Code r. 335-3-1-.03—Ambient Air Quality Standards, authorizes ADEM to adopt rules for the control of air pollution in order to comply with NAAQS, including those necessary to obtain EPA approval under section 110 of the CAA. ADEM Admin. Code r. 335-3-1-.06—Compliance Schedule, sets the schedule for the State's Air Pollution Control rules and regulations to be consistent with the requirements of the CAA. ADEM Admin. Code r. 335-3-1-.05—Sampling and Testing Methods, details the authority and means with which ADEM can require testing and emissions verification. EPA has made the preliminary determination that the provisions contained in these regulations satisfy section 110(a)(2)(A) 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 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.19

    19 On June 12, 2015, EPA published a final action entitled, “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.” See 80 FR 33840.

    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. These requirements are met through ADEM Admin. Code r. 335-3-1-.03—Ambient Air Quality Standards, ADEM Admin. Code r. 335-3-1-.05—Sampling and Testing Methods, and ADEM Admin. Code r. 335-3-1-.04—Monitoring, Records, and Reporting. These SIP-approved rules along with Alabama's Ambient Air Monitoring Network Plan, 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. 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.20 The latest monitoring network plan for Alabama was submitted to EPA on July 22, 2015, and on November 19, 2015, EPA approved this plan. Alabama's approved 2015 monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0756. EPA has made the preliminary determination that Alabama's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2010 1-hour NO2 NAAQS.

    20 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58.

    3. 110(a)(2)(C) Programs 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). ADEM's 2010 1-hour NO2 NAAQS infrastructure SIP submissions cited SIP provisions to address these requirements. Specifically, the submissions cited ADEM Admin. Code r 335-3-14-.01—“General Provisions,” 335-3-14-.02,—“Permit Procedure”, 334-3-14-.03—“Standards for Granting Permits”, 335-3-14-.04—“Prevention of Significant Deterioration in Permitting” and 335-3-14-.05—“Air Permits Authorizing Construction in or Near Nonattainment Areas”. 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 Alabama's section 110(a)(2)(C) infrastructure SIP submissions.

    Enforcement: ADEM's above-described, SIP-approved regulations provide for enforcement of NO2 emission limits and control measures through enforceable permits for new or modified stationary sources. Note also that ADEM has authority to issue enforcement orders and assess penalties (see Code sections 22-22A-5, 22-28-10 and 22-28-22).

    PSD Permitting for Major Sources: With respect to Alabama's April 23, 2013, infrastructure SIP submission related to the PSD permitting requirements of major sources for 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. ADEM Admin. Code r 334-3-14-.03—“Standards for Granting Permits” governs the preconstruction permitting of minor modifications and construction of minor stationary sources. EPA has made the preliminary determination that Alabama'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) 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 through 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 Alabama's 2010 1-hour NO2 NAAQS infrastructure submissions did not address prongs 1 and 2.

    110(a)(2)(D)(i)(II)—prong 3: With respect to Alabama'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 Alabama's April 23, 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 Alabama's 2010 1-hour NO2 NAAQS infrastructure submissions 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 in