Federal Register Vol. 81, No.139,

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.

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.

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.

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.

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

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

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

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.

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

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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.

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.

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.

This proposed rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

Accordingly, we are proposing to amend 7 CFR part 372 as follows:

The additions and revisions read as follows:

§§ 372.8 through 372.10 [Redesignated as §§ 372.12 through 372.14]

The revisions read as follows:

The addition and revision read as follows:

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.

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).

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

The Secretary of Energy has approved publication of this proposed rule.

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:

The additions read as follows:

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.

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.

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 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 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.”

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.

There are no Catalog of Federal Domestic Assistance programs numbers and titles associated with this proposed rule.

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.

For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 14 as follows:

The addition reads as follows:

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

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.

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

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

EPA is acting upon the SIP submission from 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.

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

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

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

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

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

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

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

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including 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.

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

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

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).

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

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).

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.

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.

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.

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

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

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).

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.

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.

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.

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

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

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.

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.

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

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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).

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.

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.

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

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.

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

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.

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

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

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

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

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

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

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

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (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.

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

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

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.

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.

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.

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.

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.

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.

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

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.

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).”

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.

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.

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

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

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.

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.

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

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

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.

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 include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. ADEM Admin. Code r. 335-3-14-.04—Prevention of Significant Deterioration in Permitting describes how Alabama notifies neighboring states of potential emission impacts from new or modified sources applying for PSD permits. This regulation requires ADEM 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 Alabama. Additionally, Alabama does not have any pending obligation under sections 115 and 126 of the CAA. EPA has made the preliminary determination that Alabama'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 Alabama's SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i) and (iii). With respect to 110(a)(2)(E)(ii) (regarding state boards), EPA is proposing disapproval of this sub-element. EPA's rationale respecting each sub-element is described in turn below.

In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), ADEM's infrastructure submissions demonstrate that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, fee schedules for the review of plans, and other planning needs as authorized at Ala. Code section 22-28-11 and section 22-28-9. Ala. Code section 22-28-23 does not allow the local programs to be less strict than the Alabama SIP/regulations and allows for oversight from the State. As evidence of the adequacy of ADEM's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to Alabama on April 19, 2016, outlining 105 grant commitments and current status of these commitments for fiscal year 2015. The letter EPA submitted to Alabama can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0431. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2015, therefore, Alabama's grants were finalized and closed out. Alabama's funding is also met through the state's title V fee program at ADEM Admin. Code r. 335-1-7—Air Division Operating Permit Fees 21 and ADEM Admin. Code r. 335-1-6—Application Fees. 22 EPA has made the preliminary determination that Alabama has adequate resources 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: (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. After reviewing Alabama's SIP, EPA has made the preliminary determination that the State's implementation plan does not contain provisions to comply with section 128 of the Act, and thus Alabama's April 23, 2013, and December 9, 2015, infrastructure SIP submissions do not meet the requirements of the Act. While Alabama has state statutes that may address, in whole or part, requirements related to state boards at the state level, these provisions are not included in the SIP as required by the CAA. Based on an evaluation of the federally-approved Alabama SIP, EPA is proposing to disapprove Alabama's certification that its SIP meets the requirements of 110(a)(2)(E)(ii) of the CAA for the 2010 1-hour NO2 NAAQS. The submitted provisions which purport to address 110(a)(2)(E)(ii) are severable from the other infrastructure elements. Therefore, EPA is proposing to disapprove those provisions which relate only to sub-element 110(a)(2)(E)(ii).

7. 110(a)(2)(F) Stationary Source Monitoring System 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. ADEM's infrastructure SIP submissions describe 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 Alabama infrastructure submissions also describe how the major source and minor source emission inventory programs collect emission data throughout the State and ensure the quality of such data. Alabama meets these requirements through ADEM Admin. Code r. 335-3-1-.04—Monitoring, Records, and Reporting, and 335-3-12—Continuous Monitoring Requirements for Existing Sources. ADEM Admin. Code r. 335-3-1-.04, details how sources are required as appropriate to establish and maintain records; make reports; install, use, and maintain such monitoring equipment or methods and provide periodic emission reports as the regulation requires. These reports and records are required to be compiled, and submitted on forms furnished by the State. Additionally, ADEM Admin. Code r. 335-3-12-.02 requires owners and operators of emissions sources to “install, calibrate, operate and maintain all monitoring equipment necessary for continuously monitoring the pollutants.” 23