Federal Register Vol. 81, No.208,

The regulations in 7 CFR part 319 prohibit or restrict the importation into the United States of certain plants and plant products to prevent the introduction of plant pests and noxious weeds. The regulations in “Subpart—Plants for Planting,” §§ 319.37 through 319.37-14 (referred to below as the regulations) contain, among other things, prohibitions and restrictions on the importation of plants, plant parts, and seeds for propagation.

Paragraph (a) of § 319.37-8 of the regulations requires, with certain exceptions, that plants offered for importation into the United States be free of sand, soil, earth, and other growing media. This requirement is intended to help prevent the introduction of plant pests that might be present in the growing media; the exceptions to the requirement take into account factors that mitigate that plant pest risk. Those exceptions, which are found in paragraphs (b) through (e) of § 319.37-8, consider either the origin of the plants and growing media (paragraph (b)), the nature of the growing media (paragraphs (c) and (d)), or the use of a combination of growing conditions, approved media, inspections, and other requirements (paragraph (e)).

Paragraph (e) of § 319.37-8 provides conditions under which certain plants established in growing media may be imported into the United States. In addition to specifying the types of plants that may be imported § 319.37-8(e) also:

• Specifies the types of growing media that may be used;

• Requires plants to be grown in accordance with written agreements between the Animal and Plant Health Inspection Service (APHIS) and the national plant protection organization (NPPO) of the country where the plants are grown and between the foreign NPPO and the grower;

• Requires the plants to be rooted and grown for a specified period in a greenhouse that meets certain requirements for pest exclusion and that is used only for plants being grown in compliance with § 319.37-8(e);

• Requires that the parent plants of the exported plants in growing media are produced from seed germinated in the production greenhouse or from mother plants that are grown and monitored for a specified period prior to export of the descendant plants;

• Specifies the sources of water that may be used on the plants, the height of the benches on which the plants must be grown, and the conditions under which the plants must be stored and packaged; and

• Requires that the plants be inspected in the greenhouse and found free of evidence of plant pests no more than 30 days prior to the exportation of the plants.

A phytosanitary certificate issued by the NPPO of the country in which the plants were grown that declares that the above conditions have been met must accompany the plants at the time of importation. These conditions have been used to successfully mitigate the risk of pest introduction associated with the importation into the United States of approved plants established in growing media.

Currently, orchid plants of genus Dendrobium spp. may only be imported into the United States from Taiwan as bare root plants, in accordance with § 319.37-2. The NPPO of Taiwan has requested that importation into the United States of those plants in growing media be allowed under the provisions of § 319.37-8.

The regulations in § 319.37-8(g) provide that requests such as the one made by the Government of Taiwan be evaluated by APHIS using a pest risk assessment (PRA) that uses specific pest risk evaluation standards that are based on pest risk analysis guidelines established by the International Plant Protection Convention of the United Nations' Food and Agriculture Organization. Such analyses are conducted to determine the plant pest risks associated with each requested plant article and to determine whether or not APHIS should propose to allow the requested plant article established in growing media to be imported into the United States. In accordance with § 319.37-8(g), APHIS has conducted the required PRA, which can be viewed on the Internet on the Regulations.gov Web site or in our reading room.1

In the PRA, titled “Importation of Dendrobium spp. plants in Approved Growing Media From Taiwan into the United States,” APHIS determined that three quarantine pests present in Taiwan could potentially follow the import pathway:

• Helionothrips errans (Williams), a thrips.

• Scirtothrips dorsalis Hood, the chili thrips.

• Spodoptera litura (Fabricius), the Oriental leafworm moth.

A quarantine pest is defined in § 319.37-1 of the regulations as a plant pest of potential economic importance to the United States and not yet present in the United States, or present but not widely distributed and being officially controlled. Potential plant pest risks associated with the importation of Dendrobium spp. from Taiwan in growing media into the United States were derived by estimating the consequences and likelihood of introduction of each quarantine pest into the United States and ranking the risk potential as high, medium, or low. The PRA determined that one of these three pests—S. dorsalis—poses a high pest risk potential. The remaining pests—H. errans and S. litura—were rated as having a medium pest risk potential. Further, it is important to note that those plant pest risks were analyzed in the absence of the mitigative effects of the requirements in § 319.37-8(e), which are designed to establish and maintain a pest-free production environment and ensure the use of pest-free seeds or parent plants. The risk management document (RMD) concluded that the safeguards in § 319.37-8(e) would allow the safe importation of Dendrobium spp. from Taiwan provided that the plants are established in an approved growing medium and meet all other applicable conditions of § 319.37-8(e). This determination is based on the findings of the PRA, RMD, and the Secretary's judgment that the application of the measures required under § 319.37-8(e) will prevent the introduction or dissemination of plant pests into the United States.

Accordingly, we are proposing to amend the regulations in § 319.37-8(e) by adding Dendrobium spp. from Taiwan to the list of plants established in an approved growing medium that may be imported into the United States. The plants would have to be produced, handled, and imported in accordance with the requirements of § 319.37-8(e) and be accompanied at the time of importation by a phytosanitary certificate issued by the NPPO of Taiwan that declares that those requirements have been met.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The 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 enable Taiwanese exporters to provide higher-valued, mature Dendrobium spp. plants directly to wholesalers and retailers. However, such a scenario is considered unlikely, given the technical challenges and marketing costs incurred when shipping finished plants in pots. A more likely scenario is for Taiwan to continue to export immature Dendrobium spp. plants as bare root plants or in approved growing media to U.S. nurseries to grow and sell as finished plants.

Taiwan is the world's largest orchid exporter, with international sales in 2013 totaling $166.3 million. That year, Dendrobium spp. orchids comprised less than 0.1 percent (that is, less than $166,000) of the value of Taiwan's orchid exports worldwide.

The United States imported more than 6,400 metric tons of live orchids valued at $79.4 million in 2015. Orchid imports from Taiwan comprised almost 77 percent of this value, at $61.4 million. In comparison, the value of orchid plants produced in the United States in 2014 was $300 million, with Dendrobium spp. production totaling $12.3 million. Given Dendrobium spp. making up such a small share of Taiwan's orchid sales worldwide, this proposed rule is not expected to have a significant impact on the U.S. orchid industry.

U.S. Dendrobium spp. producers numbered 216 in 2014, but the number of these establishments that are small entities is not known. Given Dendrobium spp. making up such an insignificant share of Taiwan's exports worldwide and the fact that Phalaenopsis and Oncidium spp. orchids are already being imported from Taiwan in approved growing media, we expect the proposed rule would not significantly change the volume or value of orchids imported into the continental United States from Taiwan.

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 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.

To provide the public with documentation of APHIS' review and analysis of any potential environmental impacts associated with the proposed importation of Dendrobium spp. from Taiwan, we have prepared an environmental assessment. The environmental assessment was prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) In addition, copies may be obtained by calling or writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2016-0005. Please send a copy of your comments to: (1) Please send a copy of your comments to: (1) APHIS, using one of the methods described under ADDRESSES at the beginning of this document, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250.

APHIS is proposing to amend the regulations governing the importation of plants and plant products to add orchid plants of the genus Dendrobium from Taiwan to the list of plants that may be imported into the United States in an approved growing medium, subject to specified growing requirements. Respondents will complete activities such as phytosanitary certificates, written agreements, and inspections.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as 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).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 1.166 hours per response.

Respondents: Foreign government and businesses.

Estimated annual number of respondents: 16.

Estimated annual number of responses per respondent: 17.

Estimated annual number of responses: 271.

Estimated total annual burden on respondents: 316 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

A copy of the information collection may be viewed on the Regulations.gov Web site or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) Copies can also be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727. APHIS will respond to any ICR-related comments in the final rule. All comments will also become a matter of public record.

The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

Accordingly, we propose to amend 7 CFR part 319 as follows:

Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-75, referred to below as the regulations or the fruits and vegetables regulations), the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States.

The national plant protection organization (NPPO) of Colombia has requested that we amend the regulations to allow Hass avocados (Persea americana) from Colombia to be imported into the continental United States.

In evaluating Colombia's request, we prepared a pest risk assessment (PRA) and risk management document (RMD). Copies of the PRA and the RMD may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

The PRA, titled “Importation of Fresh Fruit of Avocado, Persea americana Miller var. `Hass', into the Continental United States from Colombia: A Pathway Initiated Risk Assessment,” analyzes the potential pest risk associated with the importation of fresh Hass avocados into the continental United States from Colombia.

The PRA identifies four pests of quarantine significance present in Colombia that could follow the pathway of Hass avocados from Colombia to the continental United States. They are:

• Heilipus lauri Boheman, an avocado seed weevil.

• Heilipus trifasciatus, an avocado seed weevil.

• Maconellicoccus hirsutus (Green), pink hibiscus mealybug.

• Stenoma catenifer, avocado seed moth.

The PRA derives plant pest risk potentials for these pests by estimating the likelihood of introduction of each pest into the continental United States through the importation of Hass avocados from Colombia, as well as the consequences of such introduction, if the avocados are not subject to mitigations to address the pests. The PRA considers three of the pests to have a high unmitigated pest risk potential (H. lauri, H. trifasciatus, and S. catenifer), and one (M. hirsutus) to have a medium unmitigated pest risk potential.

Based on the findings of the PRA, APHIS has determined that measures beyond standard port-of-entry inspection are necessary in order to mitigate the risk associated with the importation of fresh Hass avocados from Colombia into the continental United States. These measures are listed in the RMD and are used as the basis for the requirements of this proposed rule.

Therefore, we are proposing to amend the regulations to allow the importation of commercial consignments of fresh Hass avocados from Colombia into the continental United States, subject to a systems approach. Requirements of the systems approach, which would be added to the regulations as a new § 319.56-76, are discussed below.

Proposed paragraph (a) of § 319.56-76 would set out general requirements for fresh Hass avocados from Colombia destined for export to the continental United States.

Proposed paragraph (a)(1) would require the NPPO of Colombia to provide an operational workplan to APHIS that details the systems approach activities that the NPPO of Colombia and places of production and packinghouses registered with the NPPO of Colombia would, subject to APHIS approval of the workplan, implement to meet the proposed requirements. An operational workplan is an arrangement between APHIS' Plant Protection and Quarantine program and officials of the NPPO of a foreign government that specifies in detail the phytosanitary measures that will comply with U.S. regulations governing the import or export of a specific commodity. Other foreign parties associated with an export program, such as producers and packinghouse operators, may also be signatories on specific operational workplans. Operational workplans apply only to the signatories and establish detailed procedures and guidance for the day-to-day operations of specific import/export programs. Operational workplans also establish how specific phytosanitary issues are dealt with in the exporting country and make clear who is responsible for dealing with those issues. Operational workplans require APHIS approval.

If the operational workplan is approved, APHIS would be directly involved with the NPPO of Colombia in monitoring and auditing the systems approach implementation. Such monitoring could involve site visits by APHIS personnel.

Proposed paragraph (a)(2) would require the avocados considered for export to the continental United States to be grown by places of production that are registered with the NPPO of Colombia and that have been determined to be free from H. lauri, H. trifasciatus, and S. catenifer in accordance with the proposed regulations. We discuss the proposed protocol for considering a production site free from these three pests later in this document.

Proposed paragraph (a)(3) would require the avocados to be packed for export to the continental United States in pest-exclusionary packinghouses that are registered with the NPPO of Colombia.

Registration of places of production and packinghouses with the NPPO of Colombia would ensure that the NPPO exercises oversight of these locations and that the places of production and packinghouses continuously follow the provisions of the export program. It would also facilitate traceback in the event that avocados from Colombia are determined to be infested with quarantine pests.

Proposed paragraph (a)(4) would require Hass avocados from Colombia to be imported into the continental United States in commercial consignments only. Noncommercial shipments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control. Commercial consignments, as defined in § 319.56-2 of the regulations, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of place of production or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer. We currently require most other fruits and vegetables imported into the United States from foreign countries to be imported in commercial consignments as a mitigation against quarantine pests of that commodity.

The systems approach we are proposing includes monitoring and oversight requirements in paragraph (b) of proposed § 319.56-76. These requirements are to ensure that the required phytosanitary measures are properly implemented throughout the process of growing and packing of avocados for export to the United States.

Proposed paragraph (b)(1) would require the NPPO of Colombia to visit and inspect registered places of production monthly, starting at least 2 months before harvest and continuing until the end of the shipping season, to verify that the growers are complying with grove sanitation requirements (discussed below) and following pest control guidelines, when necessary, to reduce quarantine pest populations. Any personnel conducting trapping and pest surveys under this section at registered places of production would have to be hired, trained, and supervised by the NPPO of Colombia. APHIS would monitor the places of production, if necessary. We may consider it necessary to monitor a place of production, for example, if a registered place of production is suspended from the export program for avocadoes from Colombia due to the presence of quarantine plant pests at the place of production, but is subsequently reinstated after taking appropriate remedial actions to address these pests.

Under paragraph (b)(2), in addition to conducting fruit inspections at the packinghouses, the NPPO of Colombia would be required to monitor packinghouse operations to verify that the packinghouses are complying with the packinghouse requirements for pest exclusion, safeguarding, and identification that are described later in this document.

Under paragraph (b)(3), if the NPPO of Colombia finds that a place of production or a packinghouse is not complying with the proposed regulations, no avocados from the place of production or packinghouse would be eligible for export to the United States until APHIS and the NPPO of Colombia conduct an investigation and agree that appropriate remedial actions have been implemented.

Paragraph (b)(4) would require the NPPO of Colombia to retain all forms and documents related to export program activities in places of production and packinghouses for at least 1 year and, as requested, provide them to APHIS for review. Such forms and documents would include (but would not necessarily be limited to) trapping and survey records for H. lauri, H. trifasciatus, and S. catenifer, as well as inspection records, and, if applicable, treatment records. Treatment records would be applicable when, for instance, the NPPO has required a place of production to follow pest control guidelines as a condition of registration, and these guidelines include treatment.

Under paragraph (c) of proposed § 319.56-76, avocado fruit that has fallen from the trees would have to be removed from each place of production at least once every 7 days, starting 2 months before harvest and continuing to the end of harvest. This procedure would reduce the amount of material in the groves that could serve as potential host material for insect pests.

Fruit that has fallen from avocado trees to the ground may be damaged and thus more susceptible to infestation. Therefore, proposed paragraph (c) would not allow fallen avocado fruit to be included in field containers of fruit brought to the packinghouse to be packed for export.

Proposed paragraph (d) of § 319.56-76 would require either that the avocados are grown in places of production located in departments 1 of Colombia that are designated as free of H. lauri, H. trifasciatus, and S. catenifer in accordance with § 319.56-5, or are grown in places of production that have been surveyed by the NPPO of Colombia and have been determined to be free of these pests. (We discuss measures designed to remove M. hirsutus from the pathway of the avocados later in this document.)

Section 319.56-5 specifies that, to be determined to be free of a quarantine pest, an area must be surveyed according to a survey protocol approved by APHIS, and meet the International Plant Protection Convention's International Standards for Phytosanitary Measures (ISPM) No. 4, “Requirements for the establishment of pest-free areas.” ISPM No. 4 require the NPPO to take measures to maintain the pest-free status of the area, including, but not limited to, routine monitoring or the establishment of buffer areas.

Similarly, in order for a place of production to be determined by APHIS to be free of H. lauri, H. trifasciatus, and S. catenifer if it is not located in a pest-free department, the NPPO of Colombia would have to maintain a 1 kilometer buffer zone around the perimeter of the place of production, and would have to survey representative areas of the place of production and buffer zone for H. lauri, H. trifasciatus, and S. catenifer monthly, beginning no more than 2 months before harvest, in accordance with a survey protocol approved by APHIS.

If one or more H. lauri, H. trifasciatus, or S. catenifer is detected during a survey of the place of production or buffer zone, the place of production would be suspended from the export program for avocados to the continental United States until APHIS and the NPPO of Colombia conduct an investigation and agree that appropriate remedial actions to reestablish pest freedom have been implemented.

Paragraph (e) of proposed § 319.56-76 sets out requirements for harvesting. Harvested avocados would have to be placed in field cartons or containers that are marked with the official registration number of the place of production. The place of production where the avocados were grown would have to remain identifiable when the fruit leaves the grove, at the packinghouse, and throughout the export process. These requirements would ensure that APHIS and the NPPO of Colombia could identify the place of production where the avocados were produced if inspectors find quarantine pests in the fruit either before export or at the port of entry.

We would require the fruit to be moved to a registered packinghouse within 3 hours of harvest or to be protected from fruit fly introduction until moved. Ceratitis capitata and Anastrepha spp. fruit flies are known to exist in Colombia, but Hass avocados are only hosts of these fruit flies once they are harvested. Safeguarding or expeditious shipment to a pest-exclusionary packinghouse would help preclude harvested avocados from becoming infested with fruit flies.

For a similar reason, the fruit would also have to be safeguarded in accordance with the operational workplan while in transit to the packinghouse and while awaiting packing. This safeguarding would prevent the fruit from being infested with fruit flies between harvest and packing.

Proposed paragraph (f) of § 319.56-76 would contain packinghouse requirements for Hass avocados from Colombia.

Paragraph (f)(1) would require registered packinghouses to accept only avocados that are from registered places of production and that are produced in accordance with the requirements of the systems approach during the time they are in use for packing avocados for export to the United States.

Paragraph (f)(2) would require avocados to be packed within 24 hours of harvest in a pest-exclusionary packinghouse. All openings to the outside of the packinghouse would have to be screened or covered by a barrier that prevents pest from entering, as specified within the operational workplan. The packinghouse would have to have double doors at the entrance to the facility and at the interior entrance to the area where the avocados are packed. These proposed requirements are designed to exclude insect pests from the packinghouse.

Paragraph (f)(3) would require the avocados to be packed in insect-proof packaging, or covered with insect-proof mesh or a plastic tarpaulin, for transport to the United States. These safeguards would have to remain intact until arrival in the United States.

Paragraph (f)(4) would require shipping documents accompanying consignments of avocados from Colombia that are exported to the United States to specify the place of production at which the avocados were grown as well as the packing shed or sheds in which the fruit was processed and packed. The identification would have to be maintained until the fruit is released for entry into the United States.

These requirements would ensure that APHIS and the NPPO of Colombia could identify the packinghouse at which the fruit was packed if inspectors find quarantine pests in the fruit either before export or at the port of entry.

Proposed paragraph (g) of § 319.56-76 would require the NPPO of Colombia to visually inspect a biometric sample of fruit from each place of production at a rate determined by APHIS, following any post-harvest processing. Visual inspection should identify M. hirsutus, an external feeder.

However, H. lauri, H. trifasciatus, and S. catenifer are all internal feeders. Accordingly, we would also require the inspector to cut a portion of the fruit to inspect for these pests.

If a single quarantine pest is detected during this inspection protocol, the consignment from which the sample was taken would be prohibited from being shipped to the United States. Additionally, if a single H. lauri, H. trifasciatus, or S. catenifer at any life stage is detected during this inspection, the place of production of the infested avocados would be suspended from the export program for avocados to the continental United States until APHIS and the NPPO of Colombia conduct an investigation and agree that appropriate remedial actions to reestablish pest freedom have been implemented.

Proposed paragraph (h) of § 319.56-76 would require each consignment of Hass avocados from Colombia to be accompanied by a phytosanitary certificate issued by the NPPO of Colombia with an additional declaration that the avocados were produced in accordance with proposed § 319.56-76 and the operational workplan.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this rule. The economic analysis provides an initial regulatory flexibility analysis that examines the potential economic effects of this proposed 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, in the reading room (see ADDRESSES above for more information), or on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

Colombia has requested market access for commercial shipments of Hass avocado into the continental United States under a systems approach. U.S. avocado imports have increased significantly over the years. A growing U.S. population and growing Hispanic share of the population, greater awareness of the avocado's health benefits, year-round availability of fresh, affordable Hass avocados, and greater disposable income have contributed to the increased demand.

The increase in demand over the past decade has contributed to domestic producers being able to maintain production levels despite the large increase in avocado imports. Annual U.S. avocado production, 2003/04 to 2014/15, averaged 206,368 tons, of which California accounted for 87.5 percent or over 375 million pounds. Nearly all of California's production is of the Hass variety.

Potential economic effects of this rule are estimated using a partial equilibrium model of the U.S. fresh Hass avocado sector. Colombia is expected to export 10,000 metric tons of Hass avocados annually to the United States. We estimated economic impacts for annual import levels of 10,000 and 12,000 metric tons. In addition, for the 10,000 metric ton level, we estimate impacts assuming that 20 percent of the imports would displace Hass avocado imports from other countries, yielding a net increase in imports of 8,000 metric tons.

For each import level, consumer welfare gains outweigh producer welfare losses, with positive net welfare impacts. Producer welfare losses under the three import levels range between $4 million and $6 million, which is equivalent to less than 1 percent of the 2014/2015 value of U.S. avocado production. Consumer welfare gains range between $14 million and $22 million, with net welfare gains for the United States of between $10 million and $16 million. The price of fresh Hass avocados is estimated to decline by less than 2 percent under all three import scenarios.

While APHIS does not have information on the size distribution of U.S. avocado producers, according to the Census of Agriculture there were a total of 93,020 Fruit and Tree Nut farms (NAICS 1113) in the United States in 2012. The average value of agricultural products sold by these farms was less than $274,000, which is well below the Small Business Administration's small-entity standard of $750,000. It is reasonable to assume that most avocado farms qualify as small entities. Between 2002 and 2012, the number of avocado operations in California grew by approximately 17 percent, from 4,801 to 5,602 operations.

This proposed rule would allow Hass avocados to be imported into the continental United States from Colombia. If this proposed rule is adopted, State and local laws and regulations regarding avocados imported under this rule would be preempted while the fruit is in foreign commerce. Fresh avocados are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), reporting and recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send comments on the Information Collection Request (ICR) to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2016-0022. Please send a copy of your comments to the USDA using one of the methods described under ADDRESSES at the beginning of this document.

This proposed rule would allow the importation of Hass avocados from Colombia into the continental United States. These avocados must be produced in accordance with the requirements of a systems approach and will require information collection activities, such as an operational workplan, production site and packinghouse registration, inspection, training, monitoring, investigation, survey and survey investigation protocols, carton markings, shipping documents, post-harvest inspection and investigation, recordkeeping, and phytosanitary certificates.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as 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).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 3.44 hours per response.

Respondents: Producers, importers of Hass avocados, the NPPO of Colombia.

Estimated annual number of respondents: 79.

Estimated annual number of responses per respondent: 35.99.

Estimated annual number of responses: 2,843.

Estimated total annual burden on respondents: 9,783 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

A copy of the information collection may be viewed on the Regulations.gov Web site or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) Copies can also be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727. APHIS will respond to any ICR-related comments in the final rule. All comments will also become a matter of public record.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

Accordingly, we propose to amend 7 CFR part 319 as follows:

On June 27, 2011, DOE published in the Federal Register a direct final rule amending the energy conservation standard for residential furnaces and central air conditioners and heat pumps. 76 FR 37408. (The standards set forth in the June 27, 2011 DFR were confirmed in a notice of effective date and compliance dates published in the Federal Register on October 31, 2011. 76 FR 67037.)

DOE is amending its energy conservation standards for central air conditioners pursuant to 42 U.S.C. 6295(m)(1), which requires DOE to periodically review its already established energy conservation standards for a covered product. More specifically, the Energy Policy and Conservation Act of 1975 (EPCA), as amended by the Energy Independence and Security Act of 2007 (EISA 2007), requires that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards. As DOE's last final rule for residential central air conditioners and heat pumps energy conservation standards was issued on June 27, 2011, DOE must act by June 27, 2017.

On July 14, 2015, DOE published a notice of intent to form a working group to negotiate energy conservation standards for central air conditioners and heat pumps and requested nominations from parties interested in serving as members of that working group. 80 FR 40938. This working group (“CAC/HP ECS Working Group”), which ultimately consisted of 15 members in addition to one member from the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC), and one DOE representative, came to a consensus on January 19, 2016 to recommend the energy conservation standard levels outlined in the ASRAC Working Group Final Term Sheet (“the Term Sheet”). (ASRAC Working Group Term Sheet, Docket No. EERE-2014-BT-STD-0048, No. 0076). On August 24, 2016, DOE published a supplemental notice of proposed rulemaking (the August 2016 SNOPR) that incorporates some of those recommendations into DOE's test procedure for central air conditioners and heat pumps. 81 FR 58164.

Several of the Term Sheet recommendations are relevant to this NODA. Recommendation #8 of the Term Sheet recommended standard levels, in terms of SEER, EER, and HSPF, based on the test procedure that was in place at the time of the CAC/HP ECS Working Group negotiations. Recommendation #9 of the Term Sheet provided translated values, in terms of SEER2 and EER2, for some of the recommended standard levels in Recommendation #8 that would be consistent with the proposed amendments to the test procedure outlined in the November 2015 test procedure SNOPR.1 80 FR 69278 (Nov. 9, 2015). The Term Sheet also provided translated values for heating efficiency of split system and single-package heat pumps, in terms of HSPF2, using an alternative test procedure favored by some of the Working Group members. Recommendation #9 of the Term Sheet stated that the energy conservation standards for small-duct high velocity and space constrained products should remain unchanged from current levels (i.e. that there would be no change in stringency), but did not provide translated values. (ASRAC Term Sheet, No. 76 at pp. 4-5)

Based on comments received on the November 2015 test procedure SNOPR, DOE continued work on the concurrent rulemaking to amend the CAC/HP test procedure while the CAC/HP ASRAC Working Group was negotiating the standard levels for CACs and HPs. DOE published a test procedure SNOPR on August 24, 2016 proposing revisions to the amendments of the November 2015 NOPR. 81 FR 58164. The August 2016 test procedure SNOPR included translated HSPF2 levels for split-system and single-package heat pumps, but did not include translated levels for small-duct high velocity and space constrained products.

This NODA provides provisional translations of the CAC/HP Working Group's recommended energy conservation standard levels for small-duct high velocity and space constrained products (which are in terms of the test procedure at the time of the 2015-2016 Negotiations) into levels consistent with the test procedure proposed in the August 2016 test procedure SNOPR. As mentioned, translated values for all other product classes can be found in the Term Sheet 2 or August 24, 2016 test procedure SNOPR. 81 FR 58164.

The August 2016 test procedure SNOPR made minor changes to the procedure for measuring SEER in SDHV systems. Specifically, rather than testing with external static pressure that varies with capacity from 1.1 to 1.2 inches water column (in. wc.), consistent with term sheet Recommendation #2, the August 2016 SNOPR proposed testing all SDHV units with 1.15 in wc. external static pressure. 81 FR 58163 (Aug. 24, 2016). Translation of SEER for this test procedure change would involve a slight reduction for low-capacity unit, no change for medium-capacity units, and a slight increase for high-capacity units. Rather than setting three different SEER levels for these products, DOE's translated level represents an average translation, equivalent to no change in the value. Consequently, current SEER ratings would not change should DOE adopt the test procedure proposed in the August 2016 SNOPR, per the CAC/HP Working Group's Recommendation #8 to keep the current 12 SEER standard.

The August 2016 test procedure SNOPR proposes changes to the test procedure for determining heating performance, including for SDHV systems. Consequently, HSPF2 numerical values for SDHV will be different than the current HSPF numerical values. In the August 2016 test procedure, DOE interpolated between the HSPF2 values resulting from the heating load line slope factor options presented by the CAC/HP Working Group in the Term Sheet to translate current HSPF standard levels to HSPF2 levels in terms of the proposed heating load line slope factor for split-system heat pumps. DOE found that this methodology resulted in a 15% reduction from HSPF to HSPF2 ratings. 81 FR at 58191. For SDHV heat pump products, DOE reviewed split-system heat pump test data to determine the appropriate HSPF to HSPF2 translation and found that the same 15% reduction in HSPF to HSPF2 would be appropriate to apply to SDHV heat pump products as well. Thus, to translate the CAC/HP Working Group recommendation a HSPF2 value consistent with the August 2016 test procedure SNOPR achieve the HSPF2 values presented in this NODA, DOE applied a 15% reduction to the current SDHV HSPF standard.

For the space-constrained air conditioner SEER standard level translation, DOE reviewed existing test data, adjusted relevant measurements based on indoor fan performance data to account for the test procedure changes (e.g., increased ESP), and translated the levels based on the average impact. DOE reviewed test data for multiple blower-coil split-system space-constrained air conditioners. Because these data are for blower-coil systems tested at static pressures lower than those proposed in the August 2016 test procedure SNOPR, DOE had to adjust the data for a relevant translation. Under 10 CFR 429.16, ratings for split-system space-constrained products must include a coil-only efficiency representation of the least efficient coil-only combination. To derive a space-constrained coil-only SEER rating based on the test data, DOE replaced the tested indoor fan power with 365 W/1000 CFM, and recalculated the SEER rating. The 365 W/1000 CFM is the default fan power value in the current test procedure, which represents indoor fan performance at the operating conditions specified in the current test procedure.

The August 2016 test procedure SNOPR proposed that split-system coil-only products be tested at a minimum external static pressure of 0.5 in. wc. To adjust for this change, DOE replaced the tested indoor fan power with 441 W/1000 CFM, and recalculated the SEER rating. The 441 W/1000 CFM is the default fan power value recommended in the CAC/HP Working Group Term Sheet and proposed in the August 2016 test procedure SNOPR to represent split-system coil-only blower power consumption at 0.5 in. wc., which reduced the space-constrained coil-only SEER value by an average of 4%. ASRAC Term Sheet, No. 76 at p. 3; 81 FR at 58185 (Aug. 24, 2016). DOE applied this 4% reduction to the SEER standard level recommended by the CAC/HP Working Group (to maintain stringency equivalent to the current space constrained air conditioner 12 SEER standard) to derive the translated SEER2 level in Table 1. DOE also evaluated the impact on SEER assuming operation at 0.30 in. wc., as recommended by the CAC/HP ECS Working Group, given that the test procedure is not finalized and DOE's proposals may change. To estimate SEER at 0.30 in. wc., DOE replaced the tested indoor fan power with 406 W/1000 CFM, and recalculated the SEER rating. The 406 W/1000 CFM is the default fan power value recommended in the CAC/HP Working Group Term Sheet and proposed in the August 2016 test procedure SNOPR to represent split-system mobile home coil-only blower power consumption at 0.30 in. wc. (ASRAC Term Sheet, No. 76 at p. 3) 81 FR at 58185 (Aug. 24, 2016). The space-constrained coil-only SEER reduced by an average of 2%. DOE applied this 2% reduction to the SEER standard level recommended by the CAC/HP Working Group (to maintain stringency equivalent to the current space constrained air conditioner 12 SEER standard) to derive the translated SEER2 level in Table 1.

For the space-constrained heat pump SEER translation, DOE used a similar methodology as it used for space-constrained air conditioners, but the adjustments to blower power were slightly different. Section 429.16 requires that split-system heat pumps have blower-coil efficiency representations. In addition, the August 2016 test procedure SNOPR proposed that split-system coil-only products be tested at a minimum external static pressure of 0.5 in. wc., which is higher than the 0.1 to 0.2 in. wc. at which these products are currently. DOE replaced the tested indoor fan power with fan power at 0.5 in. wc. determined from product specification sheets and recalculated SEER. The tested SEER reduced by an average of 4% to 11.5, as listed in Table 1 of this preamble. DOE also evaluated the impact on SEER reduction, assuming operation at 0.30 in. wc., as recommended by the CAC/HP ECS Working Group, given that the test procedure is not finalized and DOE's proposals may change. DOE replaced the tested indoor fan power with fan power at 0.30 in. wc. determined from product specification sheets and recalculated SEER. The tested SEER reduced by an average of 1% to 11.9, as listed in Table 1 of this preamble.

For the space-constrained heat pump HSPF translation, DOE used the same methodology as it used for its SDHV system HSPF translation (i.e., applying a 15% reduction). See section II.A.

DOE is interested in receiving comments and views of interested parties concerning the translation of SEER and HSPF values to SEER2 and HSPF2 values shown in Table 1 for spaced-constrained and SDHV products.

The purpose of this NODA is to notify industry, manufacturers, consumer groups, efficiency advocates, government agencies, and other stakeholders of the publication of an analysis of potential energy conservation standards for commercial and industrial fans and blowers. Stakeholders should contact DOE for any additional information pertaining to the analyses performed for this NODA.

I. Comments

FHFA invites comments on all aspects of the proposed amendments and will take all comments into consideration before issuing a final rule. Copies of all comments received will be posted without change on the FHFA Web site at http://www.fhfa.gov and will include any personal information you provide, such as your name, address, email address, and telephone number. Copies of all comments received will be made available for examination by the public on business days between the hours of l0 a.m. and 3 p.m., at the Federal Housing Finance Agency, 400 Seventh Street SW., Eighth Floor, Washington, DC 20219. To make an appointment to inspect comments, please call the Office of General Counsel at (202) 649-3804.

The objectives of the proposed amendments are to:

• Ensure that the regulated entities 1 fulfill the letter and spirit of their legal obligation to promote diversity and ensure the inclusion and utilization of minorities, women, and individuals with disabilities as well as minority-, women-, and disabled-owned businesses, in all their business and activities;

• Clarify that the requirement to promote diversity and inclusion applies to all the regulated entities' operational, commercial and economic endeavors, including management, employment, contracting, capital market transactions, and affordable housing and community investment programs;

• Require the regulated entities to develop a stand-alone diversity and inclusion strategic plan or incorporate diversity and inclusion into its existing strategic planning process and adopt strategies for promoting diversity and ensuring the inclusion of minorities, women, and individuals with disabilities as well as minority-, ­women-, and disabled-owned businesses;

• Require the regulated entities to amend their policies on equal opportunity in employment and contracting to include sexual orientation, gender identity, and status as a parent to the list of protected classifications;

• Encourage the regulated entities to expand contracting opportunities for minorities, women, and individuals with disabilities by working with prime contractors (tier 1) to provide subcontracting (tier 2) opportunities to minority-, women-, and disabled-owned businesses;

• Affirm that the regulated entities are authorized to expand the scope of their outreach and inclusion programs beyond the requirements of the Rule, which focuses on minorities, women, and individuals with disabilities; and

• Improve the usefulness and comparability of the annual reports to FHFA by requiring that the regulated entities provide information about their efforts to advance diversity and inclusion through capital market transactions, affordable housing and community investment programs, initiatives to improve access to mortgage credit, and strategies for promoting the diversity of supervisors and managers.

Section 1116 of the Housing and Economic Recovery Act of 2008 (HERA) amended section 1319A of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act), (12 U.S.C. 4520), to require, in part, that the regulated entities establish or designate an office to carry out the requirements of an Office of Minority and Women Inclusion (OMWI). That office is responsible for: Fulfilling the requirements of section 1116 of HERA that include all matters relating to diversity in the entity's management, employment, and business activities; developing and implementing standards and procedures to promote diversity in all business and activities of the regulated entity; and submitting an annual report to FHFA detailing the actions taken to promote diversity and inclusion. Furthermore, 12 U.S.C. 1833e,1 and Executive Order 11478,2 which is made applicable to FHFA and its regulated entities by 12 U.S.C. 1833e, generally require FHFA and the regulated entities to promote equal opportunity in employment.

FHFA has adopted regulations to implement section 1116 of HERA, 12 U.S.C. 1833e, and in conformance with Executive Order 11478, as amended, to set forth the minimum requirements for the affirmative program for equal opportunity and reporting requirements for the regulated entities.3 Those regulations, located at 12 CFR part 1207, require each regulated entity to establish an OMWI office, or to designate another office, that would be responsible for fulfilling the entity's OMWI responsibilities under the statute and the Rule. Each of these entities must implement policies and procedures to ensure, to the maximum extent possible consistent with financially safe and sound business practices, the inclusion and utilization of minorities, women, individuals with disabilities, and minority-, women-, and disabled-owned businesses in all business and activities and at all levels of the regulated entity, including in management, employment, procurement, insurance, and all types of contracts.4 Part 1207 also requires each regulated entity to submit to the FHFA Director, on or before March 1 of each year, a detailed annual report summarizing their activities during the reporting year (January 1 through December 31 of the preceding year) to comply with the OMWI regulatory requirements.5

In addition, part 1207 provides that the FHFA Director has broad enforcement authority in that he or she may enforce this Rule and standards issued under it in any manner and through any means within his or her authority, including through identifying matters requiring attention, corrective action orders, directives, or enforcement actions under 12 U.S.C. 4513b and 4514.6 To that end, the FHFA Director may conduct examinations of a regulated entity's activities under, and in compliance with, this part pursuant to 12 U.S.C. 4517.7

Strategic planning is critical to the success of any organization, including the regulated entities. As noted in FHFA's Examination Manual (EM) module entitled, Strategic Planning, “in its most fundamental form, strategic planning is the process of evaluating where the institution is, determining where the board would like the institution to go and which risks it is willing to accept, and developing a plan to get there.” 8 The EM also notes that, “strategic planning is the process of establishing goals and developing a roadmap for achieving those goals.” 9 A strategic plan serves as the primary means to communicate the board of directors' long-term vision for the organization and establish measurable goals and objectives for achieving this vision. The EM also identifies the following as components of an effective strategic planning process:

• An analysis of the regulated entity's financial and operational condition;

• An assessment of internal and external risks to the regulated entity;

• An evaluation of the regulated entity's strengths and weaknesses;

• An evaluation of opportunities or potential threats facing the regulated entity;

• The financial and operational goals and realistic projections that serve as benchmarks for achieving desired results within a defined time frame;

• The process by which the regulated entity plans to reach its financial and operational goals;

• The identification of those responsible for achieving the goals; and

• A means to monitor the results on an ongoing basis.

The regulated entities are also subject to the Agency's Prudential Management and Operations Standards (PMOS) found in part 1236 of FHFA's regulations. Pursuant to the PMOS guidelines, the board of directors of each regulated entity is responsible for adopting appropriate business strategies, policies, and procedures. The PMOS guidelines also establish standards by which the board of directors is to review and approve all major strategies and policies at least annually, and make any necessary revisions to ensure consistency with the overall business plan.

FHFA regulations at 12 CFR 1239.31 provide detailed information on the strategic planning requirements for each Bank including a requirement that their board of directors have a strategic business plan in effect at all times. FHFA regulation 12 CFR 1239.31(b) requires the board of directors to (1) review the strategic business plan at least annually; (2) amend the plan as appropriate; (3) re-adopt the plan at least every three years; and (4) establish management reporting requirements and monitor implementation of the strategic business plan and the operating goals and objectives contained in it.

A significant and growing body of research provides evidence that having a diverse and inclusive workforce and leadership team benefits an organization by increasing its ability to be creative, innovative, and solutions-oriented.10 Many organizations, however, fail to recognize that diversity and inclusion are vital components of long-term business viability and success and, as a result, have strictly limited them solely to the human resource function. Organizations that effectively manage diversity and inclusion have integrated the practice into all of their processes by developing and implementing comprehensive diversity and inclusion strategies. Their path to success starts with senior leadership's commitment to integrate diversity and inclusion into the business, at all levels, and to manage it in the same way as any other business strategy.

Effective strategic business planning, executive sponsorship, communication, change management, project management, day-to-day execution, and measurement are all regarded as business fundamentals for most functional areas in an organization. The research supports the premise that the ability to assess the current state and measure the progress of its diversity and inclusion efforts is also a fundamental and prudent business practice.

The Rule became effective on January 27, 2011, and set forth the minimum requirements for the regulated entities' diversity and inclusion programs and reporting requirements. They responded to the new regulatory requirements by establishing an OMWI office or designating another office responsible for fulfilling the entity's OMWI responsibilities. They implemented policies, procedures, and programs to improve human resource processes for recruiting, hiring, and promoting minorities, women, and individuals with disabilities. They also focused attention on identifying diverse suppliers and improving outreach efforts to increase participation opportunities for diverse businesses. These efforts have resulted in improvements in workforce diversity and the utilization of diverse vendors. In order to advance and promote diversity and inclusion, the regulated entities currently engage in one or more of the following activities and initiatives:

• Conducting diversity and inclusion education and training sessions for their directors, managers, and employees;

• Establishing mentoring programs for employees, particularly minorities and women;

• Partnering with minority youth development organizations;

• Sponsoring internship programs for high school and college students;

• Sponsoring and/or supporting community events and celebrations;

• Establishing diversity and inclusion councils;

• Establishing and/or sponsoring employee resource or affinity groups;

• Expanding the scope of outreach activities and initiatives to target and recruit minorities, women, and individuals with disabilities for employment;

• Expanding the scope of outreach activities and initiatives to target minority-, women-, and disabled-owned businesses for contracting opportunities; and

• Marketing to diverse communities.

Many of these efforts and initiatives have enabled or enhanced the ability of the regulated entities to promote opportunities for minorities, women, and individuals with disabilities. While each has worked to build and improve the foundation for advancing diversity and inclusion within its organization, more can be done to expand the breadth, scope, and impact of its existing program. Gaps remain in the regulated entities' processes and approaches for assessing, planning, and executing diversity and inclusion programs that fulfill the letter and spirit of section 1116 of HERA.

The proposed amendments would revise the Rule to require each regulated entity to engage in diversity and inclusion strategic planning. They would either develop a stand-alone diversity and inclusion strategic plan or incorporate diversity and inclusion into their existing strategic planning process. Under the proposal, their board of directors must establish an organizational tone for enhanced focus on, and commitment to, diversity and inclusion. The board of director's ongoing oversight assists in creating the conditions for success by ensuring alignment with the overall strategic and operational direction of the regulated entity. Senior management teams also play an important role in the development and execution of the diversity and inclusion strategic plan.

The regulated entities have mainly focused on workforce and supplier diversity to date, largely as a result of the Rule's primary focus on requirements for establishing an OMWI, ensuring equal opportunity in employment and contracting, and developing and submitting reports on the efforts taken to promote diversity and ensure inclusion in employment and contracting. The proposed amendments emphasize the need to expand the scope of diversity and inclusion considerations to their other business and operational areas. The proposed revision would require the regulated entities to broaden the focus of their existing diversity and inclusion goals and strategies to address all aspects of their business and operations beyond workforce and supplier diversity only, consistent with section 1116 of HERA.

The proposed amendments would encourage the regulated entities to develop and implement procurement programs and initiatives that expand contracting opportunities for minorities, women, and individuals with disabilities and minority-, women-, and disabled-owned businesses beyond contracting with prime contractors (tier 1) by using subcontracting arrangements (tier 2). This could entail negotiating subcontracting opportunities for minorities, women, and individuals with disabilities in contracts between a regulated entity and prime contractors. This could also involve entering into contracts with majority-owned businesses that advance opportunities for minorities, women, and individuals with disabilities. A new annual reporting requirement would include additional information about the number of contracts and the amounts paid to prime contractors (tier 1) for subcontracts (tier 2) with minorities or minority-owned businesses, women or women-owned businesses, and individuals with disabilities or disabled-owned businesses during the reporting year and the diverse spend with non-diverse-owned businesses.

The Rule implements 12 U.S.C. 1833e and conforms with Executive Order 11478, as amended, to require the regulated entities to commit to the principles of equal opportunity in employment and prohibit discrimination on the basis of race, color, national origin, sex, religion, age, disability status, or genetic information. Executive Orders 13087 and 13152 amended Executive Order 11478 to add sexual orientation and status as a parent to the list of protected bases.11 Executive Order 13672, signed on July 21, 2014, amended Executive Orders 11478 and 11246 to extend protection against discrimination in hiring and employment in the civilian federal workforce on the basis of gender identity and in hiring by federal contractors on the basis of both sexual orientation and gender identity.12 The proposed amendments would require the regulated entities to amend their policies on equal opportunity in employment and contracting to prohibit discrimination on the basis of sexual orientation, gender identity, and status as a parent.

The scope of the diversity and inclusion obligations to be satisfied by the regulated entities varies depending on the source of the authority. As previously noted, FHFA's Rule implements 12 U.S.C. 1833e, which applies the requirements of sections 1 and 2 of Executive Order 11478 to the regulated entities. Section 1 requires the regulated entities to provide equal employment opportunity for all persons, prohibit employment discrimination, and promote equal employment opportunity through a continuing affirmative program. Section 2 describes the elements of an affirmative program of equal employment opportunity, which include providing sufficient resources for administering the program in a positive and effective manner; engaging in recruitment activities that reach all sources of job candidates; fully utilizing the skills of all employees; providing employees opportunities to enhance their skills so they may perform at their fullest potential and advance in accordance with their abilities; providing training and advice to managers and supervisors to assure their understanding and implementation of the program; assuring participation at the local level with other employers, schools, and public and private groups in cooperative efforts to improve community conditions that affect employability; and providing for periodic evaluations of the effectiveness of the program.

FHFA acknowledges that diversity encompasses the broad range of demographic characteristics identified in Executive Order 11478. However, section 1116 of HERA only focuses on the responsibility of the regulated entities to promote diversity and ensure the inclusion of minorities and women. Therefore, in accordance with the statutory requirements, the primary focus of the regulatory text amendments is on advancing and promoting opportunities for minorities, women, and individuals with disabilities as well as minority-, women-, and disabled-owned businesses. Nonetheless, FHFA affirms that each regulated entity is authorized to expand the scope of its diversity program beyond the requirements of Executive Order 11478, section 1116 of HERA, and the regulations at 12 CFR part 1207. As a result, each regulated entity is encouraged to incorporate other aspects of diversity and inclusion (e.g., Lesbian, Gay, Bisexual, and Transgender (LGBT)-owned and veteran-owned businesses) into their respective OMWI outreach and inclusion programs, and in turn, their strategic planning processes as long as the broader focus does not detract from or diminish efforts to promote opportunities for minorities, women, and individuals with disabilities and minority-, women-, and disabled-owned businesses.

FHFA proposes to add, revise, or remove several definitions in § 1207.1 to clarify the existing and new regulatory requirements under part 1207. Where FHFA proposes to add or revise terms, FHFA has reviewed several external sources in search of industry standard definitions. FHFA has determined that there is no uniformly accepted term of art or single source for the newly proposed terms, so FHFA has adapted the substance found in multiple external definitions 13 to account for the nature and needs of FHFA's regulated entities.

FHFA proposes to add definitions for “Applicant” and “Promotion” to clarify the scope of the information the regulated entities are required to report to FHFA under existing § 1207.23(b)(3) and § 1207.23(b)(7). FHFA is proposing a new definition of “Diversity and inclusion strategic planning” that would describe the process the regulated entities must engage in to develop strategies for promoting diversity and ensuring the inclusion of minorities, women, and individuals with disabilities.

FHFA proposes to add definitions for “Prime contractor (tier 1)” and “Subcontractor (tier 2)” to identify two types of contracting arrangements available to the regulated entities to promote diversity and the inclusion of minorities, women, and individuals with disabilities and minority-, women-, and disabled-owned businesses. FHFA also proposes to add a definition for “Diversity spend with non-diverse-owned businesses” to describe the dollar amount a regulated entity pays to a firm that is not owned by a minority, woman, or individual with a disability, for professional services provided by a partner, member, or other equity owner who is a minority, woman, or individual with a disability. This type of arrangement can occur when an organization bases its decision to engage a majority-owned law practice or consulting firm based upon its interactions with a specific partner(s) or non-controlling owner(s) who is also a minority, woman, or individual with a disability.

FHFA proposes to add a definition for “Minority-serving financial institution” that would be used by the regulated entities in their efforts to promote access to single- and multi-family mortgage credit, including an assessment of the challenges and impediments financial institutions that primarily serve minorities face in their efforts to access the secondary mortgage market. The proposed definition closely follows the Federal Deposit Insurance Corporation's (FDIC) Policy Statement Regarding Minority Depository Institutions 14 and encompasses depository and non-depository financial institutions.

FHFA is proposing to revise the definition of “Women-owned business” by removing one of the standards used to determine whether a business qualifies as a women-owned business. The existing definitions for minority-, women-, and disabled-owned businesses include criteria for determining the diverse status of a business based on who owns or controls the business as well as who accrues the profits or losses generated by the business. The existing definition of “Women-owned business” also includes a criterion based on the percentage of senior management positions held by one or more women. FHFA believes this criterion is unnecessary due to the emphasis the existing definition places on ownership and control. The proposed removal of this criterion for women-owned businesses would bring consistency to the Rule's standards for determining ownership and control of minority- and disabled-owned businesses. FHFA is also proposing to revise the definitions of “Disabled-owned business,” “Minority-owned business,” and “Women-owned business” by clarifying that ownership can be direct or indirect. By revising the definition, FHFA wishes to encourage each regulated entity to develop and implement procurement programs and initiatives without regard to the distinction between businesses owned by individuals/natural persons and legal persons, such as corporations, as long as the ultimate ownership benefits are held by predominantly disabled, minority, or women owners.

Finally, FHFA is proposing to remove the definitions for “Director,” “FHFA,” “Office of Finance,” and “regulated entity” because they are now defined in 12 CFR part 1201, which defines terms that apply to all FHFA regulations.

FHFA proposes to revise § 1207.2(c) to address the scope of each regulated entity's responsibility to promote diversity and ensure the inclusion and utilization of minorities, women, and individuals with disabilities and minority-, women-, and disabled-owned businesses. The proposed regulatory language would place emphasis on the requirement to promote diversity and ensure inclusion when awarding contracts for goods and services.

FHFA is proposing to revise existing § 1207.3(b), which currently requires each regulated entity's contracts for goods over $10,000 to include a material clause that commits the contractor to practice the principles of equal employment opportunity and nondiscrimination and to submit demographic data reports with respect to their workforce. FHFA proposes to increase the material clause threshold to $25,000 to alleviate administrative burdens the regulated entities encounter when routinely purchasing lower-value goods such as materials and supplies necessary for day-to-day operations. However, FHFA welcomes comments on the potential impact the proposed threshold change could have on small businesses and, specifically, on the dollar amount of the threshold.

FHFA is also proposing to add paragraphs (c) and (d) to existing § 1207.3. Proposed § 1207.3(c) would require each regulated entity to submit to FHFA within 90 days after the effective date of the amended Rule, a list of the types of contracts it considers exempt under § 1207.3(b) and any thresholds, exceptions, and limitations it establishes for implementing § 1207.21(c)(2). Proposed § 1207.3(d) would then require each regulated entity to notify FHFA within 30 days after any additional changes to the list.

FHFA is proposing to revise paragraphs (b) and (c) of § 1207.20 to clarify that a regulated entity's board of directors has ultimate responsibility for achieving the requirements of part 1207—not the regulated entity's OMWI (or office designated to perform the responsibilities of part 1207). The proposed revision would clarify that the OMWI is responsible for leading the regulated entity's efforts to promote diversity and inclusion, and that any officer(s) designated to direct and oversee the diversity and inclusion programs has/have the necessary qualifications to effectively administer the requirements of part 1207.

FHFA is proposing to revise the title of existing § 1207.21 from “Equal opportunity in employment and contracting” to “Promoting diversity and ensuring inclusion in all business and activities” to accurately reflect the scope of requirements for advancing diversity and ensuring inclusion in all activities and at every level of the regulated entity, including management, employment and contracting.

FHFA is proposing to amend § 1207.21(a) to add sexual orientation, gender identity, and status as a parent to the list of bases covered under each regulated entity's equal opportunity statement as required by 12 U.S.C. 1833e, and in conformance with Executive Order 11478.

FHFA is proposing to add a new paragraph to § 1207.21(b)(3) to address the statutory requirement in section 1116(b) of HERA that the regulated entities establish processes that give consideration to the diversity of an applicant when reviewing and evaluating contract proposals and hiring service providers. The proposed rule would require them to develop procedures it would implement for giving consideration to diversity when reviewing and considering contract proposals and hiring service providers.

Proposed § 1207.21(b)(7) would require each regulated entity to establish effective procedures for engaging in diversity and inclusion strategic planning. FHFA is also proposing to revise its allowance that the regulated entities may establish, where commercially reasonable, thresholds, exceptions, and limitations for implementing § 1207.21(b)(7) (proposed § 1207.21(b)(9)). Under § 1207.3(b), the regulated entities would consider any negative or adverse effects the thresholds, exceptions, and limitations would likely have on contracting opportunities for minorities, women, and individuals with disabilities and minority-, women-, and disabled-owned businesses. The proposal would also ensure that the rationale used to support the thresholds, exceptions, and limitations would not be used to frustrate the intent of the statutory or regulatory requirements to promote diversity and inclusion.

Proposed § 1207.21(d) would require each regulated entity to develop and implement strategies for promoting diversity and ensuring the inclusion of minorities, women, and individuals with disabilities and minority-, women-, and disabled-owned businesses. The board-approved strategies would cover three years and be reviewed and affirmed by the board of directors annually.

Proposed § 1207.21(e)(1) through (e)(3) would establish the minimum requirements for developing a diversity and inclusion strategic plan. The requirements would complement the guidance that has been provided in FHFA's EM, Strategic Planning, as well as regulatory requirements and the PMOS guidelines. The proposed amendments would require the regulated entities to include the following components in their diversity and inclusion strategic plans:

• A vision and/or mission statement for fulfilling § 1207.2;

• Measurable goals and objectives for achieving the vision and/or mission statement; and

• A requirement that senior management develop and implement action plans for monitoring and achieving the measurable goals and objectives.

FHFA is proposing to revise § 1207.23(b)(3) and (b)(7) to substitute the word “applicants” as defined in § 1207.1 for the words “individuals applying” to clarify the scope of information the regulated entities are required to report to FHFA.

Proposed § 1207.23(b)(9) through (b)(23) revises and/or supplements the minimum requirements for the annual report submitted by each regulated entity. Proposed § 1207.23(b)(9) would require them to report on the diversity of their supervisors and managers as well as provide a description of the strategies and activities it implemented to promote diverse individuals to supervisory or managerial roles. Proposed § 1207.23(b)(12) would require each regulated entity to provide a description of the strategies, initiatives, and activities it implemented to advance diversity and inclusion in conjunction with capital market or financial transactions, efforts to promote access to credit, and affordable housing and community investment programs. Proposed § 1207.23(b)(16) and § 1207.23(b)(17) would require each regulated entity to report the number and dollar amounts of contracts entered into during the preceding year that it considered exempt under § 1207.3(b). The proposed amendments would also require reporting on the number and dollar amounts of prime contracts and subcontracts that prime contractors had with minorities, women, and individuals with disabilities and minority-, women-, and disabled-owned businesses. Proposed § 1207.23(b)(18) would require that the regulated entity report on diversity spend with non-diverse-owned businesses. Proposed § 1207.23(b)(19) would require the regulated entity to provide the total amounts paid to prime contractors and subcontractors and the percentage that was paid to diverse vendors.

Finally, the proposed amendments would remove most references to the “Office of Finance” found in the existing regulation. The proposed change would neither alter nor reduce the Office of Finance's responsibility to promote diversity and inclusion and would serve to streamline the text of the regulatory requirements. Therefore, FHFA is proposing to add § 1207.25 to explain that any reference to the regulated entities in part 1207 also applies to the Office of Finance, unless the Office of Finance is otherwise specifically addressed or excluded.

Section 1313(f) of the Safety and Soundness Act, as amended by section 1201 of HERA, requires the Director, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability. The Director may also consider any other differences that are deemed appropriate. In preparing this proposed rule, the Director has considered the differences between the Banks and the Enterprises as they relate to the above factors and has determined that the proposed rule would not adversely affect the Banks taking into account all of the above factors.

The proposed regulation does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). FHFA has considered the impact of the proposed amendments under the Regulatory Flexibility Act and certifies that the proposed amendments, if adopted, are not likely to have a significant economic impact on a substantial number of small business entities because the regulation is only applicable to FHFA and the regulated entities, which are not small entities for purposes of the Regulatory Flexibility Act.

For the reasons stated in the preamble, under the authority of 12 U.S.C. 4526, FHFA proposes to amend part 1207 of title 12 of the Code of Federal Regulations as follows:

The revisions and additions read as follows:

The revision reads as follows:

The revisions and additions read as follows:

The revisions and additions read as follows:

Comments

FHFA invites comments on all aspects of the 2016 proposed rulemaking and will take all comments into consideration before issuing the final rule. Copies of all comments will be posted without change, including any personal information you provide, such as your name, address, email address, and telephone number, on the FHFA Web site at http://www.fhfa.gov. In addition, copies of all comments received will be available for examination by the public on business days between the hours of 10 a.m. and 3 p.m., at the Federal Housing Finance Agency, Constitution Center, Eighth Floor, 400 Seventh Street SW., Washington, DC 20219. To make an appointment to inspect comments, please call the Office of General Counsel at (202) 649-3804.

In the Federal Register on September 20, 2016 (81 FR 64357), FHFA published a proposed rule with a 60-day comment period to request comments on the proposal that would establish standards for identifying whether an indemnification payment by the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, any of the Federal Home Loan Banks, or the Federal Home Loan Bank System's Office of Finance to an entity-affiliated party in connection with an administrative proceeding or civil action instituted by FHFA is prohibited or permissible. The proposed rule published an inadvertent clerical error in § 1231.4. FHFA is correcting that error, to clarify, just as the proposed rule did (see fn 7 in the Supplementary Information Section, explaining FHFA's rationale), that September 20, 2016, the date of that proposed rulemaking's publication, is the grandfathering date for individualized indemnification agreements, and is extending the comment period in order that the public may have a full 60 days to comment following this correction.

In proposed rule FR Doc. 2016-22483, on page 64360, in the issue of September 20, 2016, in the right column, in paragraph (b)(3) of § 1231.4, should correctly read: “Amounts due under an indemnification agreement entered into with a named entity-affiliated party on or prior to September 20, 2016.”

The proposed rule requested that the public submit comments by November, 21, 2016. FHFA hereby extends the deadline for submitting comments by an additional 30 days, to December 21, 2016.

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

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the EPA's National Ambient Air Quality Standards (NAAQS). These NAAQS are established under section 109 of the CAA and they currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. The state's air regulations are contained in its SIP, which is basically a clean air plan. Each state is responsible for developing SIPs to demonstrate how the NAAQS will be achieved, maintained, and enforced. The SIP must be submitted to EPA for approval and any changes a state makes to the approved SIP also must be submitted to the EPA for approval.

As detailed in the Technical Support Document (TSD) accompanying this action, the Texas Commission on Environmental Quality (TCEQ or “the State”) submitted revisions to 30 Texas Administrative Code (TAC) Chapter 111, Subchapters 203, 209 and 211. The TCEQ also asked that we remove from the SIP a prior version of the now repealed rule (30 TAC Section 111.155) that we previously approved into the SIP as Rule 105.2, titled “Ground Level Concentrations” that limit ground level concentrations of particulate matter emissions in Texas. See 27 FR 10842 (May 31, 1972).

In the August 21, 1989 SIP submittal, the TCEQ repealed Rule 105.2 and adopted the newly renumbered 30 TAC Section 111.155 to replace it. In an October 28, 1999 (64 FR 57983) direct final rulemaking action, we proposed to approve the newly renumbered Section 111.155 into the Texas SIP. However, we received an adverse comment on inclusion of Section 111.155 (formerly 105.2) into the SIP. We therefore withdrew that October 28, 1999 action. See 64 FR 70592 (December 17, 1999). In our final action to that rulemaking, we stated that we were no longer taking action to approve Section 111.155 into the SIP. See 80 FR 19145 (April 28, 2009). Subsequently, the TCEQ adopted the repeal of Section 111.155 from their State rules. In the State's June 9, 2006 SIP submittal, the TCEQ asked EPA to remove from consideration a currently pending SIP request (the August 21, 1989, SIP submittal) to include 30 TAC Section 111.155 into the SIP. It also asked us to remove the former 105.2 rule from the SIP. Our analysis, available in our TSD in the rulemaking docket, finds that removal of Rule 105.2 (subsequently renumbered by the State as 111.155) is approvable. In 1971, EPA promulgated primary and secondary NAAQS for particulate matter (PM), measured as “total suspended particulate matter” or “TSP.” On July 1, 1987, (52 FR 24634) following the initial review of the standard, EPA announced its decision to replace TSP as the indicator for PM for ambient standards with particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10). The NAAQS for PM have been revised three times since 1987, the most recent of which was on December 14, 2012, when we revised the primary annual PM2.5 standard to 12.0 µg/m 3 and we retained the 24-hour PM2.5 standard of 35 µg/m 3 (78 FR 3086).1 Rather than revising the SIP each time the NAAQS are revised, the Texas SIP at 30 TAC Section 101.21 provides enforcement of the NAAQS throughout Texas (see 42 FR 27894, June 1, 1977). Thus, removing 30 TAC Section 111.155 from the SIP would not result in any weakening of the SIP.

The State's November 15, 2004 SIP submittal requests that EPA approve an amendment to 30 TAC Section 111.209, Exception for Disposal Fires, which allows the disposal of animal remains by veterinarians. Specifically, the November 15, 2004, SIP submittal revises 30 TAC Section 111.209(3) to authorize the use of outdoor burning of animal remains for veterinarians in accordance with Texas Occupations Code (TOC), Section 801.361, Disposal of Animal Remains. This revision to the State's rules was necessary for TCEQ rules to be consistent with State law and to more precisely define when and where such animal remains could be burned by referencing the current state code of practice for veterinarians. The TOC, Section 801.361 addresses what can be burned (i.e., animal remains and the associated medical waste, but not sharps 2 and the circumstances of the specific veterinarian-client-patient case.3 Such burning is also subject to 30 TAC 111.219, General Requirements for Allowable Outdoor Burning, which addresses wind speeds, atmospheric temperature inversions, and other conditions, in an effort to protect, rather than adversely impact, air quality. We commented at the time of the State's public comment period that we had no objections to these revisions. We continue to believe that under section 110(l) of the CAA, such revisions will not interfere with attainment of the NAAQS, Reasonable Further Progress or any other applicable requirement of the CAA. Therefore, this revision is approvable.

The July 18, 2006, SIP submittal revises 30 TAC Section 111.203 to prohibit the burning of household refuse in a limited demographic area on lots of less than five acres, making it a Class C misdemeanor under Texas law if someone knowingly or intentionally burns in such an area. 30 TAC Section 111.209 was amended to make a distinction between allowable burning in areas of attainment and nonattainment, and to incorporate all currently SIP-approved controls at 30 TAC Section 111.219. Additional amended regulations were included in the July 18, 2006, SIP submittal which included regulations to require signs at designated specific residential properties for consolidated burning at the designated site, records to include the site description of a platted subdivision, to ensure that all waste was generated at specific residential properties for which the site is designated, and ensure that all burning at the designated site is directly supervised by an employee of a fire department who is part of the fire protection personnel, as defined by Texas Government Code, Section 419.021, and is acting in the scope of the person's employment, where the fire department employee shall notify the appropriate TCEQ regional office with a telephone or electronic facsimile notice 24 hours in advance of any scheduled supervised burn, and other advisory requirements including that TCEQ approval is not required.

The March 3, 2014 SIP submittal revises 30 TAC Section 111.211 to allow prescribed burns for the purpose of wildfire hazard mitigation. The submitted revision allows prescribed burning in other areas, such as where rural areas interface with urban areas, for the purpose of wildfire hazard mitigation in order to reduce the incidence, intensity, and spread of wildfires. The EPA submitted comments to the TCEQ during the State's public comment period. The State responded to our comments and those were included as part of the SIP submittal. We have reviewed the State's evaluation of our comments and agree that the revision is not allowing an additional activity with the addition of wildfire hazard mitigation, since the TCEQ already has the ability to allow prescribed burns for wildfire hazard mitigation purposes on a case by case basis. The purpose of the revision is to better facilitate the process of allowing prescribed burns for wildfire hazard mitigation and thereby reduce the chance of emissions of pollutants that could be emitted in an uncontrolled wildfire. Our analysis, available in our TSD in the rulemaking docket, finds that the revisions to 30 TAC Section 111.211 are not significant, are approvable and would not interfere with attainment of the NAAQS or prevent any reasonable further progress in obtaining the NAAQS or any other applicable requirement of the CAA.

We are proposing to approve the Texas SIP revisions dated from 1989, 2004, 2006 and 2014. Specifically, we are proposing to approve the August 21, 1989 and the June 9, 2006 submittals that repealed the Rule 105.2 (subsequently renumbered 30 TAC Section 111.155). We are proposing to approve the November 15, 2004, submittal that revises 30 TAC Section 111.209. We are proposing to approve the July 18, 2006, submittal that adopted amendments to 30 TAC Section 111.203 and 30 TAC Section 111.209 that revises 30 TAC Subchapter B “Emissions Limits.” We are also proposing to approve the March 3, 2014, submittal that adopted amendments to 30 TAC Section 111.211 with revisions to Subchapter B.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Texas regulations as described in the Proposed Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office.

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

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

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

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

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

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

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

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

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

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

In addition, 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 proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

On July 18, 1997, the EPA established the 1997 PM2.5 National Ambient Air Quality Standards (NAAQS), including an annual standard of 15.0 µg/m3 based on a 3-year average of annual mean PM2.5 concentrations, and a 24-hour (or daily) standard of 65 µg/m3 based on a 3-year average of the 98th percentile of 24-hour concentrations (62 FR 38652). The EPA established the 1997 PM2.5 NAAQS based on significant evidence and numerous health studies demonstrating the serious health effects associated with exposures to PM2.5. To provide guidance on the CAA requirements for state and tribal implementation plans to implement the 1997 PM2.5 NAAQS, the EPA promulgated the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) (hereinafter, the “2007 PM2.5 Implementation Rule”).

On October 17, 2006, the EPA strengthened the 24-hour PM2.5 NAAQS to 35 µg/m3 and retained the level of the annual PM2.5 standard at 15.0 µg/m3 (71 FR 61144). Following promulgation of a new or revised NAAQS, the EPA is required by the CAA to promulgate designations for areas throughout the United States; this designation process is described in section 107(d)(1) of the CAA. On November 13, 2009, the EPA designated areas as either attainment/unclassifiable or nonattainment with respect to the revised 2006 24-hour PM2.5 NAAQS (74 FR 58688). In that November 2009 action, the EPA designated Franklin County, Idaho, as part of the cross-state Logan UT-ID nonattainment for the 2006 24-hour PM2.5 NAAQS, requiring Idaho to prepare and submit an attainment plan to meet the revised 24-hour PM2.5 NAAQS. The EPA included Franklin County in the nonattainment area due to Idaho emission sources, particularly motor vehicle commuter patterns, contributing to violations of the 24-hour PM2.5 NAAQS recorded at the Logan, Cache County, Utah monitor, based on 2006 to 2008 ambient air quality data.

On March 2, 2012, the EPA issued “Implementation Guidance for the 2006 24-Hour Fine Particulate (PM2.5) National Ambient Air Quality Standards (NAAQS)” to provide guidance on the development of SIPs to demonstrate attainment with the revised 24-hour standard (March 2012 Implementation Guidance). The March 2012 Implementation Guidance explained that the overall framework and policy approach of the 2007 PM2.5 Implementation Rule provided effective and appropriate guidance on statutory requirements for the development of SIPs to attain the 2006 24-hour PM2.5 NAAQS. Accordingly, the March 2012 Implementation Guidance instructed states to rely on the 2007 PM2.5 Implementation Rule in developing SIPs to demonstrate attainment with the 2006 24-hour PM2.5 NAAQS.

On January 4, 2013, the D.C. Circuit Court issued a decision in NRDC v. EPA, 706 F.3d 428, holding that the EPA erred in implementing the 1997 PM2.5 NAAQS pursuant only to the general implementation requirements of subpart 1, part D of title I of the CAA, rather pursuant to the implementation requirements specific to particulate matter (PM10) in subpart 4, part D of title I of the CAA (“subpart 4”). The court reasoned that the plain meaning of the CAA requires implementation of the 1997 p.m.2.5 NAAQS under subpart 4 because PM2.5 particles fall within the statutory definition of PM10 and thus implementation of the PM2.5 NAAQS is subject to the same statutory requirements as the PM10 NAAQS. The Court did not vacate the 2007 PM2.5 Implementation Rule but remanded the rule with instructions for the EPA to promulgate new implementation regulations for the PM2.5 NAAQS in accordance with the requirements of subpart 4. On June 6, 2013, consistent with the Court's remand decision, the EPA withdrew its March 2012 Implementation Guidance which relied on the 2007 PM2.5 Implementation Rule to provide guidance for the 2006 24-hour PM2.5 NAAQS.

Prior to the January 4, 2013 Court decision, states had worked towards meeting the air quality goals of the 2006 PM2.5 NAAQS in accordance with the EPA regulations and guidance derived from subpart 1 of Part D of Title I of the CAA. The EPA considered this history in issuing the PM2.5 Subpart 4 Nonattainment Classification and Deadline Rule (2014 Classification and Deadline Rule) (79 FR 31566, June 2, 2014) that identified the initial classification under subpart 4 for areas currently designated nonattainment for the 1997 and/or 2006 PM2.5 standards as Moderate. The final rule also established December 31, 2014 as the deadline for the states to submit any additional SIP elements related to attainment. On December 24, 2014, the IDEQ supplemented the 2012 SIP submission to address the Court's decision.

With respect to the requirements for attainment plans, the EPA notes that the general nonattainment area planning requirements are found in subpart 1, and the Moderate area planning requirements for particulate matter are found in subpart 4. The EPA has a longstanding general guidance document that interprets the 1990 amendments to the CAA commonly referred to as the “General Preamble” (57 FR 13498, April 16, 1992). The General Preamble addresses the relationship between subpart 1 and subpart 4 requirements and provides recommendations to states for meeting statutory requirements for particulate matter nonattainment planning. Specifically, the General Preamble explains that requirements applicable to Moderate area nonattainment SIPs are set forth in subpart 4, but such SIPs must also meet the general nonattainment planning provisions in subpart 1, to the extent these provisions “are not otherwise subsumed by, or integrally related to,” the more specific subpart 4 requirements (57 FR 13538). In addition, on August 24, 2016, the EPA issued a final rule establishing requirements applicable to nonattainment areas for current and future PM2.5 NAAQS in response to the vacatur of the 2007 implementation rule. Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements, 81 FR 58010 (August 24, 2016). While that rule is not effective until October 24, 2016, the EPA considered the guidance contained in the final rule when evaluating the SIP submission at issue.

The requirements of subpart 1 for attainment plans include: (i) The section 172(c)(1) requirements for reasonably available control measures (RACM), reasonably available control technology (RACT) and attainment demonstrations; (ii) the section 172(c)(2) requirement to demonstrate reasonable further progress (RFP); (iii) the section 172(c)(3) requirement for emissions inventories; (iv) the section 172(c)(5) requirements for a nonattainment new source review (NSR) permitting program; and (v) the section 172(c)(9) requirement for contingency measures.

Several subpart 4 requirements for Moderate areas are comparable with subpart 1 requirements and include: (i) The section 189(a)(1)(A) NSR permit program requirements; (ii) the section 189(a)(1)(B) requirements for an attainment demonstration; (iii) the section 189(a)(1)(C) requirements for RACM; and (iv) the section 189(c) requirements for RFP and quantitative milestones. In addition, under subpart 4 the Moderate area attainment date is no later than the end of the 6th calendar year after designation.

The EPA has evaluated the 2012 SIP submittal and 2014 amendment to determine whether they meet the applicable Clean Air Act (CAA) requirements. Based on this evaluation, the EPA is proposing to approve certain provisions and disapprove other provisions of the 2012 SIP submittal and 2014 amendment.

The attainment plan elements that the IDEQ submitted for Franklin County included base year and attainment year emissions inventories that addressed direct particulate matter emissions and all particulate matter precursors, an analysis of RACM and RACT, contingency measures, and reasonable further progress addressed through the attainment demonstration. The attainment plan's strategy for controlling direct and precursor PM2.5 emissions relied primarily on a mandatory episodic woodstove curtailment program, the change-out of uncertified woodstoves, revised road sanding practices, and expected direct PM2.5 and PM2.5 precursor reductions from the Tier 2 Federal Motor Vehicle Emission Requirements (65 FR 6698, February 10, 2000).

The applicable attainment planning requirements under subpart 4 (section 189(a) and (b)) depend on whether the nonattainment area is classified as Moderate or Serious. In response to the Court's decision in NRDC v. EPA, the EPA finalized on June 2, 2014, initial classifications of all current 1997 and 2006 PM2.5 nonattainment areas as Moderate (79 FR 31566). Thus, the IDEQ's 2012 SIP submittal and the 2014 amendment for Franklin County is evaluated pursuant to the Moderate area requirements of subpart 4.

On May 14, 2014, we proposed approval of the baseline emissions inventory included as part of Idaho's 2012 submittal (79 FR 27543). The emissions inventory covered direct PM2.5 and precursors to the formation of PM2.5 (nitrogen oxides (NOX), volatile organic compounds (VOCs), ammonia (NH3), and sulfur dioxide (SO2)) to meet the comprehensive emissions inventory requirement of CAA section 172(c) for the 2006 24-hour PM2.5 NAAQS. We received no comments on our proposed rulemaking and finalized our approval on July 18, 2014 (79 FR 41904). We are not taking comments on the inventory as part of this action.

The December 14, 2012 attainment plan submitted by the IDEQ included permanent and enforceable Franklin County, City of Clifton, City of Dayton, Franklin City, City of Oxford, City of Preston, and City of Weston ordinances implementing the mandatory woodstove curtailment and burn ban programs. The IDEQ's Air Quality Index (AQI) program supports the local jurisdictions by instituting mandatory burn bans for uncertified woodstoves when PM2.5 concentration levels are at or forecasted to reach 25.4 µg/m3. Each of the adopted ordinances ban open burning of any kind during burn ban days, ban the sale or installation of non-EPA certified devices in new or existing buildings, and prohibit the construction of any building for which a solid fuel burning device is the sole source of heat. On March 25, 2014, the EPA approved the ordinances submitted in the attainment plan because they provided important PM2.5 reductions in the nonattainment area and strengthened the Idaho SIP (79 FR 16201). By including these measures in the SIP, the State has made them permanent and enforceable. With the EPA's approval of these control measures on March 25, 2014, the measures have become federally enforceable. The EPA already provided notice and comment on the proposed approval of these ordinances into the SIP on December 26, 2013 (78 FR 78315), and we are not taking comment on those provisions.

In our March 25, 2014 action, the EPA also approved road sanding agreements between the IDEQ, Franklin County Road and Bridge, and the Idaho Transportation Department to reduce the contribution of primary PM2.5 from reentrained dust on paved roads. Although the road sanding agreements were expected to reduce emissions of PM2.5, we determined that the agreements were not directly enforceable. However, the road sanding agreements are similar to agreements previously approved by the EPA as voluntary measures in the Idaho SIP (70 FR 29247), and consistently implemented by the relevant state and county governments.1 Accordingly, the EPA approved the road sanding agreements as voluntary measures in accordance with existing guidance.2 Lastly, in the 2012 SIP submittal and 2014 amendment, the IDEQ also quantified the emission reduction benefits from three woodstove change-out programs conducted in 2006-2007, 2011-2012, and 2013-2014 that replaced a total of 212 units, with annual estimated emissions reductions of 8.04 tons per year (tpy) PM2.5, 0.47 tpy NOX, and 18.57 tpy VOC. Further details on these control measures can be found in the docket for this action as well as in the proposed and final Federal Register notices approving these measures (78 FR 78315 and 79 FR 16201). The EPA is not taking comment on these approved actions.

The CAA requirements of subpart 4 include a demonstration that a nonattainment area will meet applicable NAAQS within the timeframe provided in the statute (section 189(a)(1)(B)). For the 2006 PM2.5 24-hour NAAQS, an attainment plan must show that a Moderate nonattainment area will attain the standard as expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation, which in the case of Franklin County was December 31, 2015.

Section 189(a)(1)(B) requires that a Moderate area nonattainment plan contain either a demonstration that the plan will provide for attainment by the applicable attainment date, or a demonstration that attainment by such date is impracticable. Due to the multi-state nature of the shared Logan UT-ID air shed and the location of the violating monitor in Logan, Utah, the Utah Department of Air Quality (UDAQ) conducted the attainment demonstration for the entire nonattainment area with IDEQ's active participation. This attainment demonstration was included in Appendix D of IDEQ's 2012 SIP submittal. In response to the EPA's 2014 Classification and Deadline Rule, IDEQ again worked with the UDAQ to update the attainment demonstration with new modeling based on more recent emission inventory information. This updated modeling, cited in the 2014 amendment, demonstrated attainment by the subpart 4 attainment date of December 31, 2015.

The EPA is proposing to disapprove the attainment demonstration because the area did not, in fact, attain the NAAQS by December 31, 2015.

In evaluating the 2012 SIP submission and 2014 amendment under the requirements of subpart 4, control of direct PM2.5 and precursors must be considered. According to CAA section 302(g) the term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and by product material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used. The provisions of subpart 4 do not define the term “precursor” for purposes of particulate matter, nor do they explicitly require the control of any specifically identified precursor. However, the EPA has long recognized the scientific basis for concluding that SO2, NOX, VOC, and ammonia are precursors to PM10 and to PM2.5 (81 FR 58018-19).

The EPA's interpretation of section 189(e) and section 172 indicates that consideration of all precursors is necessary for PM2.5 attainment plans, and RACM/RACT requirements explicitly require the evaluation of available control measures for direct PM2.5 emissions and precursor emissions from stationary, area, and mobile sources in order to attain as expeditiously as practicable. Section 189(e) requires the control of appropriate precursors from major stationary sources, unless the Administrator determines that precursor emissions from such major stationary sources do not contribute significantly to nonattainment in the area.

Subpart 4 expressly requires control of precursors from major stationary sources where direct PM from major sources is controlled unless certain conditions are met; however, other sources of precursors may also need to be controlled for the purposes of demonstrating attainment as expeditiously as practicable in a given area. Thus, the statute requires states with Moderate nonattainment areas to evaluate available control measures for all sources of direct PM2.5 and PM2.5 precursor emissions to determine whether such measures are economically and technologically feasible, and to adopt all measures that are deemed reasonable and are necessary to demonstrate attainment as expeditiously as possible (e.g., all measures constituting RACM and RACT controls for sources located in the area). The EPA has interpreted subpart 4 to require control of precursors from all source categories in a given nonattainment area, unless there is a demonstration that controlling a precursor or precursors is not necessary for expeditious attainment of the NAAQS in the area.

As discussed in the EPA's 1992 General Preamble, in the event that a state's attainment plan includes controls on major stationary sources for PM10 in order to achieve timely attainment in the area, section 189(e) requires controls of all PM10 precursors for major stationary sources located within the area, unless there is a showing that such sources do not contribute significantly to violations in the area (57 FR 13541). Thus, the EPA's interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM10 contemplates that states may develop attainment plans that regulate only those precursors that contribute significantly to nonattainment in the area in question, i.e., states may determine that only certain precursors need be regulated for attainment purposes. Id.; see also Assoc. of Irritated Residents v. EPA, et al., 423 F.3d 989 (9th Cir. 2005). The EPA maintains that application of this same approach to PM2.5 precursors under subpart 4 is appropriate and reasonable (81 FR 58020-22).

The General Preamble describes the assessment of precursors as specific to each nonattainment area, and acknowledges that the determination of precursor significance would likely vary based on the characteristics of the area-wide nonattainment problem. The General Preamble further provides that in making a determination regarding the significance of precursors, the EPA will rely on technical information presented in the state's submittal, including filter analysis, the relative contribution to overall nonattainment, the selected control strategies, as well as other relevant factors (57 FR 13541). The recent PM2.5 Implementation Rule also discusses the types of technical analyses that states may perform to demonstrate the significance or insignificance of a particular precursor. (81 FR 58020-22); 40 CFR 51.1006.

The IDEQ's 2012 SIP submittal contained a detailed analysis of the Logan UT-ID air shed (see Appendix A, Special Air Quality Studies, PM2.5 Saturation Studies—Utah State University). This study concluded that, “the Cache Valley (Logan UT-ID) PM2.5 nonattainment is somewhat uniquely a wintertime problem, when low lying, persistent radiation and subsidence inversions set up, trapping pollutants in the Valley for extended periods of time, thereby allowing photochemically-derived particulate material to become elevated. Chemical analysis by researchers at Utah's Division of Air Quality and Air Monitoring Center, as well as Utah State University, have shown that 50-95% of the PM2.5 collected at the Logan site is composed of ammonium nitrate (NH4NO3).” This secondary formation of ammonium nitrate is due in large part to NOX and VOC emissions from onroad motor vehicles combining with the abundant levels of ammonia from small cattle operations, agricultural fields, and natural and constructed wetlands in the greater air shed, both within and surrounding the nonattainment area. The study concluded that, “based on measurements at the Logan location, the Valley's wintertime formation of ammonium nitrate was found to be limited by the availability of nitric acid (HNO3). Furthermore, the report stated that the Cache Valley was found to be NH3-rich by a factor of approximately two. Comparisons of wintertime ambient NH3 concentrations between the Valley's urban area (Logan) and a rural location (Amalga), showed the rural area averaged ≉2.5 times the NH3 of the urban site.” As a result of this analysis, all scientific precursors to PM2.5, including VOCs and ammonia, were considered as part of the 2012 SIP submittal and 2014 amendment.

The general SIP planning requirements for nonattainment areas under subpart 1 include section 172(c)(1), which requires implementation of all RACM (including RACT). The CAA section 172(c) indicates that what constitutes RACM or RACT is related to what is necessary for attainment in a given area, as the provision states that nonattainment plans shall provide for attainment of the NAAQS in the area covered by the attainment plan.

The SIP requirements under subpart 4 likewise impose upon states an obligation to develop attainment plans that impose RACM and RACT on sources within a nonattainment area. Section 189(a)(1)(C) requires that states with areas classified as Moderate nonattainment areas must have SIP provisions to assure that RACM and RACT level controls are implemented by no later than four years after designation of the area. As with subpart 1, the terms RACM and RACT are not defined within subpart 4. Nor do the provisions of subpart 4 specify how states are to meet the RACM and RACT requirements. However, the EPA's longstanding guidance in the General Preamble provides recommendations for appropriate considerations for determining what control measures constitute RACM and RACT for purposes of meeting the statutory requirements of subpart 4.

The EPA's guidance for RACM under subpart 4 in the General Preamble includes: (1) A list of some potential measures for states to consider; (2) a statement of the EPA's expectation that the state will provide a reasoned explanation for a decision not to adopt a particular control measure; (3) recognition that some control measures might be unreasonable because the emissions from the affected sources in the area are de minimis; (4) an emphasis on state evaluation of potential control measures for reasonableness, considering factors such as technological feasibility and the cost of control; and (5) encouragement that states evaluating potential control measures imposed upon municipal or other governmental entities also include consideration of the impacts on such entities, and the possibility of partial implementation when full implementation would be infeasible (e.g., phased implementation of measures such as road paving). 57 FR 13540.

With respect to RACT requirements, the EPA's existing guidance in the General Preamble: (1) Noted that RACT has historically been defined as “the lowest emission limit that a source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility;” (2) noted that RACT generally applies to stationary sources, both stack and fugitive emissions; (3) suggested that major stationary sources be the minimum starting point for a state's RACT analysis; and (4) recommended that states evaluate RACT not only for major stationary sources, but for other source categories as needed for attainment and considering the feasibility of controls. Id. at 13541

For both RACM and RACT, the EPA notes that an overarching principle is that if a given control measure is not needed to attain the relevant NAAQS in a given area as expeditiously as practicable, then that control measure would not be required as RACM or RACT because it would not be reasonable to impose controls that are not in fact needed for attainment purposes. In making recommendations for the subpart 4 RACM and RACT requirements, the focus is upon the process to identify emissions sources, to evaluate potential emissions controls, and to impose those control measures that are reasonable and that are necessary to bring the area into attainment as expeditiously as practicable, but by no later than the attainment date for the area. The only exception is if the economically and technically feasible measures not necessary to attain by the outermost attainment date and adopted as RACT/RACM will collectively advance attainment by at least a year. If that is the case, the additional measures must be adopted.

The new PM2.5 Implementation Rule adopts a process oriented analysis similar to the approaches set forth in the General Preamble and the remanded 2007 PM2.5 Implementation Rule (81 FR 58035-47); 40 CFR 51.1009.

Consistent with EPA guidance at the time, the IDEQ evaluated which measures would constitute RACM and RACT in Franklin County.

1. The IDEQ evaluated the technical and economic feasibility of establishing a motor vehicle inspection and maintenance (I&M) program for Franklin County (Appendix C of the 2012 SIP submittal). Modeling conducted by the UDAQ, using the EPA's Motor Vehicle Emission Simulator (MOVES) model, showed expected NOX reductions of 4.6% from implementing an I&M program generally. Projecting this anticipated NOX reduction to Franklin County's share of the overall Logan UT-ID motor vehicle fleet (approximately 10%) yields a potential NOX reduction benefit of 0.46% for the air shed. The IDEQ estimated the cost of establishing an I&M program for Franklin County based on an existing I&M station in Canyon County, Idaho (population 198,871 in 2013). The IDEQ then scaled the potential costs of this program to reflect the population of Franklin (12,854 in 2013). The IDEQ found that while some variable costs may be reduced, the annual fixed costs of keeping a basic I&M station operational remained quite high (total annual estimated cost would be approximately $300,000). The IDEQ calculated that dividing this annual cost by the expect NOX emissions reduction for Franklin County (15 tons per year) yields an estimated cost per ton of NOX reduced of at least $20,000 per ton. The IDEQ also calculated the cost per vehicle (approximately 8,574 vehicles) to be $70 per vehicle based on a two year inspection cycle. Given ongoing vehicle fleet turnover with newer, cleaner Tier 2 and 3 vehicles since the IDEQ's 2012 SIP submittal, these costs relative to expected NOX reductions have likely increased as the small percentage of pre-1996 motor vehicles most likely to fail an I&M test for NOX and VOC emissions are retired from the vehicle fleet. For these reasons, the IDEQ determined that a Franklin County I&M program was not a reasonable control approach based on factors including the cost of control and economic feasibility.

2. As discussed above, the General Preamble suggests that major stationary sources be the minimum starting point for a state's RACT analysis and recommended that states evaluate RACT not only for major stationary sources, but for other source categories as needed for attainment and considering the feasibility of controls. In developing the emissions inventories underlying the 2012 SIP submittal and 2014 amendment, the criteria of 40 CFR 51 for air emissions reporting requirements under the EPA's National Emissions Inventory (NEI) was used to establish a 100 tpy threshold for identifying stationary point sources. For Franklin County there are no point sources with the potential to emit 100 tpy of PM2.5 or any PM2.5 plan precursor. As described in Appendix B of the IDEQ's 2012 SIP submittal, emissions from point sources under the EPA's NEI reporting threshold of 100 tpy were included in the area source base-year emissions inventory. For Franklin County, due to its rural nature and general lack of industrial base, emissions from these industrial and commercial source categories are generally insignificant compared to other source categories. For these reasons, the IDEQ considered RACT requirements satisfied for Franklin County.

3. As previously discussed in the Control Measures section, the IDEQ submitted road sanding agreements negotiated between the IDEQ, Franklin County Road and Bridge, and the Idaho Department of Transportation to reduce PM2.5 emissions from re-entrained road dust. In our March 25, 2014 final approval of the road sanding agreements as voluntary measures, we explained that the agreements were not directly enforceable and could not be considered as full control measures, with full emission reduction credit under the attainment demonstration.3 As part of the 2014 amendment, the IDEQ submitted revised road sanding agreements to address the EPA's enforceability concerns. While these revised road sanding agreements improve on potential enforceability, they still do not meet our enforceability criteria to be approved as full control measures meeting RACM requirements.

4. As previously discussed in the Control Measures section, the EPA approved the permanent and enforceable Franklin County, City of Clifton, City of Dayton, Franklin City, City of Oxford, City of Preston, and City of Weston ordinances implementing the mandatory woodstove curtailment and burn ban program (79 FR 16201, March 25, 2014). The EPA is now proposing to determine that these ordinances already approved into the Idaho SIP satisfy our criteria for RACM under subpart 1 and subpart 4. The EPA also notes that because the ordinances banned the sale or installation of non-EPA certified devices in new or existing buildings in Franklin County jurisdictions, the three woodstove change-out programs conducted in 2006-2007, 2011-2012, and 2013-2014, that replaced 212 units, can be considered to have permanent, enforceable, and lasting emission reductions in the nonattainment area, estimated to be 8.04 tpy PM2.5, 0.47 tpy NOX, and 18.57 tpy VOC.

The EPA is proposing to approve the woodstove curtailment, device restrictions and burn ban control measures discussed above, and already incorporated into the SIP, as meeting the requirements of RACM. We are proposing to approve IDEQ's determination that an I&M program for Franklin County is not economically feasible under RACM. We are also proposing to approve IDEQ's determination that RACT controls are not necessary given the lack of stationary sources in the county.

Under the attainment plan requirements, an area must implement all reasonable control measures that are not necessary to attain by the outermost attainment date, if such measures would advance the date of attainment by an estimated one year. At the time of the IDEQ's December 24, 2014 amendment, the State and the EPA had access to monitoring data showing that it would not be possible to advance attainment by one year (December 31, 2014) due to expected 3-year average of 24-hour PM2.5 concentrations of 40 μg/m3 at the Franklin monitor, and 45 μg/m3 at the Logan, Utah monitor, based on preliminary 2012-2014 data. Therefore, we are proposing to approve IDEQ's determination that it was not possible to advance the attainment date by one-year and that they implemented all reasonable available control measures identified.

As discussed in the “Characterization of the Franklin County Air Shed” section above, secondary formation of ammonium nitrate (NH4NO3) is the most dominant source of PM2.5 in the valley (approximately 80% of the PM2.5). Due to the unique topography of being surrounded by steep mountain ranges approximately 3,000 to 5,000 feet above the Cache Valley floor, this air shed is particularly susceptible to wintertime inversion events. During these inversion events VOCs and NOX emissions (primarily from on-road motor vehicles) are trapped in a shallow layer of air with ammonia emissions (primarily from agricultural operations) to form ammonium nitrate. The 2012 submittal included the Utah State University Special Air Quality Studies which determined that the air shed was ammonia rich by a factor of approximately two. Modeled sensitivity runs, conducted by UDAQ in cooperation with IDEQ, also showed that significant reductions in the ammonia inventories would have little to no effect on predicted PM2.5 concentrations.4 As such, one of the most significant control measures for the area as a whole, was Utah's establishment of an I&M program to reduce NOX and VOCs from on-road motor vehicles. As discussed above, IDEQ also assessed the economic feasibility of establishing an I&M program to reduce NOX and VOCs, but found that the estimated $20,000+ per ton reduction of NOX renders the cost unreasonable and thus not RACM. IDEQ also considered other potential NOX controls such as controls for home heating of natural gas or distillate oil, but determined it was prohibitively expensive given the tiny proportion of the emissions inventory for those sources (see Table 1). The potential for VOC and SO2 reductions from Franklin County sources was similarly small. While the emissions inventory shows some potential for reducing VOC emission from commercial, consumer, and industrial solvents, IDEQ noted that many of these products are purchased in the more populous retail center in Logan, Utah. Therefore the Utah VOC controls for these products would have an air shed wide impact. Lastly, IDEQ notes that MOVES modeling conducted as part of the 2012 submittal, using a 2008 base year, predicted VOC emissions reductions from on-road mobile sources of 37% by January 1, 2015, due to fleet turnover with cleaner Tier 2 vehicles. IDEQ did assess potential SO2, NOX, VOC, and NH3 reductions from Idaho-specific control measures. However, due to the sparse population and generally small emissions inventories, the direct PM2.5 control measures discussed above (woodstoves and road sanding) were deemed as the only viable and economically feasible measures possible to impose as RACM.

IDEQ's analysis of potential control measures under RACM was informed by the emissions inventory for the area (see pages 23-29 of the 2012 submittal). As discussed above, many of the source categories in the Franklin County portion of the nonattainment area have negligible emissions due to the sparse population and rural nature of the county. IDEQ then analyzed the emissions inventory for SO2, NOX, VOC, NH3, and direct PM2.5, to determine possible control measures (see pages 38-41). Pursuant to that analysis, IDEQ identified and established the mandatory woodstove curtailment program, burn ban, heating device restrictions and the woodstove change-out programs discussed above to satisfy the RACM requirement for the predominant emissions sources in the county, with estimated emission reductions greater than 0.13 tons per episode day. The IDEQ also determined reasonable measures beyond the Tier 2 Federal Motor Vehicle Emission Requirements, the diesel emission reduction program, the commuter bus service, and the Park-n-Ride lots already in place for the area are not available for mobile emissions. The EPA has reviewed the comprehensive emissions inventory information, as summarized in Table 1. Based on the 2012 submittal and 2014 amendment, the EPA proposes to find that IDEQ has satisfied the RACM requirement for the Idaho portion of the area.

Contingency measures are additional measures to be implemented in the event that an area fails to attain a standard by its attainment date, or fails to meet Reasonable Further Progress (RFP). See CAA section 172(c)(9); 81 FR 58066. These measures must be fully adopted rules or control measures that take effect with minimal further action by the state or the EPA. Contingency measures should also contain trigger mechanisms and an implementation schedule. In addition, they should be measures not already included in the SIP control strategy, and should provide for emission reductions equivalent to one year of RFP.

The EPA explained that the April 16, 1992 General Preamble provided the following guidance: “States must show that their contingency measures can be implemented without further action on their part and with no additional rulemaking actions such as public hearings or legislative review. In general, EPA will expect all actions needed to affect full implementation of the measures to occur within 60 days after EPA notifies the State of its failure.” (57 FR at 13512). The statute requires that contingency measures provide for additional emission reductions that are not relied on for RFP or attainment and that are not included in the demonstration. The purpose of contingency measures is to provide a cushion while the plan is being revised to meet the missed milestone and continue progress towards expeditious attainment. In other words, contingency measures are intended to achieve reductions over and beyond those relied on in the attainment and RFP demonstrations.

In its 2012 SIP submittal, the IDEQ relied on two sets of measures as contingency measures: Idaho control measures that had already been adopted and implemented but which were not included or accounted for in UDAQ's attainment demonstration modeling; and the contingency measures included in Utah's 2012 SIP submission. IDEQ asserted that such measures collectively would achieve emission reductions resulting in a 0.2 μg per year reduction, equaling one year's worth of emission reductions necessary to achieve RFP at the time of IDEQ's 2012 submittal. While the IDEQ asserts that the 0.2 μg per year reduction would occur, the reductions are not quantified in the UDAQ modeling. The EPA is therefore proposing to disapprove the IDEQ's contingency measure plan element.5

For PM2.5 nonattainment areas, two statutory provisions apply regarding RFP and quantitative milestones. First, under subpart 1, CAA section 172(c)(2) requires attainment plans to provide for RFP, which is defined in CAA section 171(l) as “such annual incremental reductions in emissions of the relevant air pollutant as are required by [Part D of Title I] or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” Reasonable further progress is a requirement to assure that states make steady, incremental progress toward attaining air quality standards, rather than deferring implementation of control measures and thereby emission reductions until sometime just before the date by which the standard is to be attained. Second, under subpart 4, CAA section 189(c) requires that attainment plan submissions have “quantitative milestones which are to be achieved every 3 years until the area is redesignated to attainment and which demonstrate reasonable further progress . . . toward attainment by the applicable date.”

The IDEQ's 2012 SIP submittal was developed to meet the subpart 1 RFP requirements, and the 2014 amendment was intended to address the D.C. Circuit's determination that the subpart 4 requirements apply to PM2.5 NAAQS; however, the IDEQ submittals do not include quantitative milestones as required pursuant to section 189(c). Specifically, section 189(c) provides that an attainment plan must have quantitative milestones which are to be achieved every three years until the area is redesignated to attainment, and which demonstrate reasonable further progress toward attainment by the applicable attainment date.6 While the SIP submittals did identify one measure of RFP (i.e. that the area will attain by the attainment date), the SIP submittals do not adequately address the RFP requirement or provide specific quantitative milestone as required pursuant to section 189(c). For this reason, we propose to disapprove the SIP with respect to the RFP and quantitative milestones requirements.

While the specific RFP and quantitative milestones requirements were not satisfied in the SIP submittals, the IDEQ's attainment plan did contain control measures that were implemented after the area was designated nonattainment. For example, the woodstove curtailment and burn ban ordinances were adopted and in place during the summer and fall of 2012. In addition, the woodstove change-out programs conducted in 2006-2007 and 2011-2012, had already commenced and achieved sustained and quantifiable emission reductions of 8.04 tons per year (tpy) PM2.5, 0.47 tpy NOX, and 18.57 tpy VOC. The IDEQ calculated the emissions reductions associated with the number of woodstoves exchanged in each of those years. In addition, the IDEQ quantified the estimated reduction in PM2.5 reentrained road dust emissions from the road sanding agreements effective July 16, 2012 and October 25, 2012. The control measures in the IDEQ's attainment plan were in place and achieving reductions within three years of submission. The State relied upon these control measures, in addition to the Utah control measures, to provide the bulk of the emissions reductions projected to bring the area into attainment, and those measures were achieving reductions during the three years from the subpart 4 attainment plan submission date. However, the IDEQ's SIP submittal did not specify whether such measures were also included for the purposes of RFP and quantitative milestones. If properly accounted for and specified in the SIP submittal, such reductions might be sufficient to provide the necessary demonstration of RFP for use in a quantitative milestones report.

Section 176(c) of the CAA requires Federal actions in nonattainment and maintenance areas to “conform to” the goals of SIPs. This means that such actions will not cause or contribute to violations of a NAAQS, worsen the severity of an existing violation, or delay timely attainment of any NAAQS or any interim milestone. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the transportation conformity rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, the EPA, the FHWA, and the FTA to demonstrate that their long-range transportation plans and transportation improvement programs (TIPs) conform to applicable SIPs. This demonstration is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (budgets) contained in a SIP.

For budgets to be approvable, they must meet, at a minimum, the EPA's adequacy criteria (40 CFR 93.118(e)(4)). One of the adequacy criteria requires that motor vehicle emissions budgets when considered together with all other emissions sources, are consistent with the applicable requirements for reasonable further progress, attainment or maintenance (40 CFR 93.118(e)(4)((iv)). In this case the applicable requirement is attainment of the 2006 24-hour PM2.5 NAAQS. The Cache Valley NAA failed to attain the 2006 24-hour PM2.5 NAAQS by December 31, 2014.7 Therefore, the submitted motor vehicle emissions budgets do not meet the aforementioned adequacy criterion. We are proposing to disapprove the submitted budgets consistent with our proposed disapproval of the attainment demonstration for the Idaho portion of the area.

This section explains the consequences of a disapproval of a SIP under section 110(k) of the Act. The Act provides for the imposition of sanctions and the promulgation of a federal implementation plan (FIP) if a state fails to submit and the EPA approve a plan revision that corrects the deficiencies identified by the EPA in its disapproval.

If the EPA finalizes disapproval of a required SIP submission, such as an attainment plan submission, or a portion thereof, section 179(a) provides for the imposition of sanctions unless the deficiency is corrected within 18 months of the final rulemaking of disapproval. The first sanction would apply 18 months after the EPA disapproves the SIP. Under EPA's sanctions regulations, 40 CFR 52.31, the first sanction imposed at 18 months following a disapproval is 2:1 offsets for sources subject to the new source review requirements under section 173 of the Act. If the deficiency remains uncorrected at 24 months after the disapproval a second sanction is imposed consisting of a prohibition on the approval or funding of certain highway projects.8 The EPA also has authority under section 110(m) to impose sanctions on a broader area, but is not proposing to take such action in today's rulemaking. The imposition of sanctions is avoided or stopped by a final EPA rulemaking action finding that the state corrected the SIP deficiencies resulting in the disapproval.

In addition to sanctions, if the EPA finds that a state failed to submit the required SIP revision or finalizes disapproval of the required SIP revision, or a portion thereof, the EPA must promulgate a FIP no later than 2 years from the date of the finding if the deficiency has not been corrected within that time period.

One consequence if EPA finalizes disapproval of a control strategy SIP submission is a conformity freeze.9 If we finalize the disapproval of the attainment demonstration SIP without a protective finding, a conformity freeze will be in place as of the effective date of the disapproval (40 CFR 93.120(a)(2)). The Idaho portion of the Cache Valley NAA is a “donut area” as defined in the transportation conformity rule (40 CFR 93.101).10 As such, the Idaho portion of the area does not have a metropolitan planning organization (MPO) and there is no long range transportation plan or TIP that would be subject to a freeze. However, the freeze does mean that no new projects in the Idaho portion of the Cache Valley NAA may be found to conform until another attainment demonstration SIP is submitted and the motor vehicle emissions budgets are found adequate or the attainment demonstration is approved.

The EPA is proposing to approve the woodstove curtailment ordinances, burn ban, heating device restrictions and woodstove change-out programs as meeting RACM requirements. However, for the reasons set forth above and because the area failed to attain by the December 31, 2015 attainment date, we are proposing to determine that the IDEQ has not satisfied the attainment demonstration, the contingency measures, the RFP and quantitative milestone, and the motor vehicle emission budget requirements for the Franklin County portion of the Logan UT-ID area. As such, we are proposing to disapprove these elements.

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

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

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply on any Indian reservation land in Idaho or any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction.

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

In the Clean Air Act (CAA) Amendments of 1977, Congress established a program to protect and improve visibility in the Nation's national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. The EPA promulgated regional haze regulations in 1999 to implement sections 169A and 169B of the CAA. These regulations require states to develop and implement plans to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas 1 (Class I areas). See 64 FR 35714 (July 1, 1999); see also 70 FR 39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).

Regional haze is impairment of visual range or colorization caused by air pollution, principally fine particulate, produced by numerous sources and activities, located across a broad regional area. The sources include but are not limited to, major and minor stationary sources, mobile sources, and area sources including non-anthropogenic sources. These sources and activities may emit fine particles (PM 2.5) (e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust), and their precursors (e.g., sulfur dioxide (SO2), nitrogen oxides (NOX), and in some cases, ammonia and volatile organic compounds). Fine particulate can also cause serious health effects and mortality in humans, and contributes to environmental effects such as acid deposition and eutrophication. See 64 FR at 35715. Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time in most national parks and wilderness areas. The average visual range in many Class I areas in the western United States is 100-150 kilometers, or about one-half to two-thirds the visual range that would exist without manmade air pollution.2 Visibility impairment also varies day-to-day and by season depending on variations in meteorology and emission rates. The deciview (dv) is the metric by which visibility is measured in the regional haze program. A change of 1 dv is generally considered the change in visual range that the human eye can perceive.

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources with the potential to emit greater than 250 tons per year (tpy) or more of any visibility impairing pollutant in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the Act requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources 3 built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology”, as determined by the state or us in the case of a plan promulgated under section 110(c) of the CAA. Under the Regional Haze rule, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area.

We promulgated regulations addressing Regional Haze in 1999, 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P.4 These regulations require all states to submit implementation plans that, among other measures, contain either emission limits representing BART for certain sources constructed between 1962 and 1977, or alternative measures that provide for greater reasonable progress than BART. 40 CFR 51.308(e).

On June 13, 2008, Louisiana submitted a SIP to address regional haze. EPA acted on that submittal in two separate actions. The first was a limited disapproval (77 FR 33641) because of deficiencies in the state's regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia to the EPA of the Clean Air Interstate Rule (CAIR). The second was a partial limited approval/partial disapproval (77 FR 39425) because the SIP revision met some but not all of the applicable requirements of the CAA and EPA's regulations as set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-308, but as a whole, the SIP revision strengthened the SIP. The deficiencies included inadequate Best Available Retrofit Technology (BART) determinations for four facilities. These four facilities are the only non-electric generating unit (EGU) facilities in Louisiana that were identified as being subject to BART and are referred to as the non-EGU facilities.

On August 11 2016, Louisiana submitted a SIP revision intended to address the deficiencies related to BART for the four non-EGUs.

The four non-EGU facilities are: Phillips 66 Company-Alliance Refinery; Mosaic Fertilizer LLC, Uncle Sam Plant; Eco-Services Operations Corp.; and Sid Richardson Carbon Co., Addis Plant. For three facilities (Phillips 66, Eco-Services, and Sid Richardson), LDEQ had submitted a BART analysis under 40 CFR 51.308(e)(1)(ii)(A). For each of these facilities, we determined, in our July 3, 2012 notice, that the BART analysis satisfied part, but not all, of the requirements. We also found that LDEQ had erred in exempting Mosaic from BART by using future controls and visibility impacts rather than assessing controls that were in place at the time of the SIP submittal.

In its August 11, 2016 SIP submittal, LDEQ provided revised BART analyses for the three facilities to address the deficiencies noted in the previous Regional Haze SIP action. LDEQ has also provided a BART analysis for Mosaic. A summary of our proposed findings for these facilities is provided below. For more details, please see our evaluation of the BART determination for each of these four subject-to-BART sources in the TSD.

The Sid Richardson Carbon Company's Addis Plant is located in West Baton Rouge Parish, Louisiana. For the BART eligible units at the facility, LDEQ submitted in the original Regional Haze SIP a BART engineering analysis; for particulate matter the LDEQ determined that the high efficiency fabric filters already in use at the facility are BART. EPA found that the LDEQ acted within its discretion in making this determination and that the analyses met the BART requirements. However, the EPA found that the BART analysis for NOX and SO2 were deficient. While LDEQ indicated that no controls were technically feasible, EPA found that the record did not provide a sufficient basis for this conclusion. Based on this, the NOX and SO2 BART determination for the Addis Plant was deemed deficient (77 FR 11851).

The original modeling that was performed showed that the facility had an impact that was above the contribution threshold of 0.5 deciview level for determining which sources are subject to BART. The Addis plant model results were 0.756 deciviews.

In response to the EPA action, Sid Richardson revised the BART analysis and updated the modeling. The facility requested permission to perform a new round of modeling using the same emissions parameters that were used in the original model but utilizing the newest EPA approved methods and guidance documents. EPA reviewed and concurred with the methodology and modeling results provided by Sid Richardson. Based on this analysis, LDEQ concluded that the facility is not subject-to-BART because its model visibility impact was less than 0.5 deciviews. We have evaluated LDEQ's submittal and propose to approve the Sid Richardson BART analysis and modeling and the LDEQ's finding that the Addis plant is not subject-to-BART.

The Phillips 66 Company (Phillips 66) owns and operates the Alliance Refinery near Belle Chasse, Louisiana, which is a subject-to-BART source.5 On December 5, 2005, Conoco Phillips, the United States of America and the State of Louisiana, entered into a Consent Decree (CD) 6 as part of the National Refinery Initiative for the Belle Chasse (Alliance) Refinery. In our previous action, we found that the BART engineering analysis provided by Phillips 66 utilized emission reductions that are mandated per the CD for the fluidized catalytic cracker (FCCU), the process refinery flares and the crude unit heater. However, the LDEQ did not provide a complete BART evaluation for these units. In the August 11, 2016 SIP revision, LDEQ provided a complete BART determination for these units. Controls and conditions required by the CD include a wet gas scrubber on the FCCU, selective catalytic reduction (SCR) on the FCCU and crude unit heater, flare gas recovery for the process refinery flares, and compliance with the Standards of Performance for Petroleum Refineries as prescribed in 40 CFR part 60, subpart J for the low pressure and high pressure flares, CO boilers, and crude unit heaters. Implementation of these control projects as per the CD emissions reduction requirements have resulted in reducing the overall site visibility impacts. In the previous action, we also found that the LDEQ failed to submit the emissions limits as part of the SIP revision as required. The emissions limits are now included in an Administrative Order on Consent (AOC) No. AE-AOC-14-00211A between LDEQ and Phillips 66 and were provided in the August 11, 2016 SIP revision.

In our initial action on Louisiana Regional Haze, we approved LDEQ's BART determinations for several other subject to BART units at the Alliance Refinery. These units include the cooling water tower, gas-fired heaters, loading docks, and the coke transfer and storage area. See 77 FR at 39432. However, at that time, LDEQ did not submit the BART emissions limits for approval into the SIP. The BART emissions limits for these units are also included in AOC No. AE-AOC-14-00211A.

EPA proposes to find that the current controls installed and operating conditions at these subject to BART units constitute BART. The emissions limits for all of the subject to BART units at the Alliance Refinery are included in the AOC in accordance with 40 CFR 51.308(4)(e). Upon EPA approval of this portion of the Regional Haze SIP submittal, the AOC becomes federally enforceable. We propose to approve the BART analysis and the emission limits for Phillips 66 as meeting the BART requirements.

Mosaic Fertilizer, LLC, owns and operates the Uncle Sam Plant (Mosaic) in St. James Parish, Louisiana and produces phosphoric acid and sulfuric acid. In our previous action, we partially disapproved Louisiana's Regional Haze SIP for failure to identify Mosaic as subject to BART and failure to submit a BART determination for Mosaic.

In Louisiana's initial Regional Haze SIP submittal, the LDEQ used a contribution threshold of 0.5 dv for determining which sources are subject to BART, and we approved this threshold in our previous action. See, 77 FR at 11849. The Regional Haze Rule states that a BART eligible source can only be exempted from being subject to BART if its visibility impacts at the time the SIP is developed are less than the screening value. See, 70 FR 39118; 77 FR at 11849.

In the original Regional Haze SIP submittal, the LDEQ properly identified Mosaic as a BART eligible source consistent with the BART Guidelines. However, LDEQ's initial SIP submittal inappropriately allowed Mosaic to screen out based on controls that were not installed at the time of the submittal. LDEQ accepted Mosaic's modeling, which was based on future controls that were to be installed on the A-Train Sulfuric Acid Stack. Based on the modeling results, the LDEQ listed the facility as passing both the screening modeling as well as the refined modeling. As such, LDEQ erroneously determined that the facility was not subject to BART and, therefore, was not required to perform a BART analysis.

In our final action (77 FR at 39429), we determined that the state should have identified the Mosaic facility as being subject to BART and submitted a BART determination for the source. Mosaic entered into a CD with the EPA, LDEQ and other parties on December 23, 2009.7 The CD required the installation of controls on the Sulfuric Acid Trains A, D, and E, including a scrubber system on the A Train and process improvements on the D Train. These controls resulted in a reduction in SO2 emissions of over 10,000 tons per year. In its SIP revision, LDEQ provided a complete BART analysis concluding that additional control beyond those required by the consent decree would not be necessary to meet BART. Based on a review of the BART analysis and LDEQ's determination, EPA agrees that Mosaic, with its current controls and operating conditions, has satisfied BART. The emissions limits for Mosaic under current controls and operating conditions are included in AOC No. AE-AOC-14-00274A which was included in the August 11, 2016 SIP revision in accordance with 40 CFR 51.308(4)(e). Upon EPA approval of this portion of the Regional Haze SIP submittal, the AOC becomes federally enforceable. We propose to approve the BART analysis and the emission limits for Mosaic.

The Eco-Services Operations Corp facility (Eco-Services) is a sulfuric acid plant located in Baton Rouge, Louisiana.8 The plant produces sulfuric acid by using two sulfuric acid production trains, Unit 1 and Unit 2, but only Unit 2 is subject to BART.9 Effective July 23, 2007, the EPA, LDEQ and other parties entered into a CD with Eco-Services due to violations associated with excess emissions of sulfuric acid mist and sulfur dioxide. The CD required a scrubber to be installed on each of the units to control SO2 emissions.10

In the July 23, 2012 action (77 FR at 39426), EPA found that with the selected control strategy, the Eco-Services units met the BART requirements at 40 CFR part 51, Appendix Y.OV.D.1.9.11 However, EPA found that the LDEQ failed to submit the emissions limits as part of the SIP revision as required. The emissions limits are included in the AOC No. AE-AOC-14-00957 between LDEQ and Eco-Services, which was provided in the August 11, 2016 SIP revision.

In the BART analysis, Eco-Services identified both a short term and long term limit control level for SO2. The long term emissions limits for Eco-Services under current controls and operating conditions are included in the AOC in accordance with 40 CFR 51.308(4)(e) and are federally enforceable. The short term limit provided in the BART analysis is 3 lbs/ton, consistent with the limits established in the Consent Decree. The long term limit in the Consent Decree includes an exemption for emissions during startup shutdown and malfunction. However, the short term emissions are limited by the New Source Performance Standard (NSPS) for Sulfuric Acid Plants (40 CFR part 60, subpart H). This short term limit is applicable at all times and is adequate to meet BART during periods of startup and shutdown. EPA concurs with LDEQ's evaluation and findings that the current controls in place, along with the federally enforceable limits established in the AOC and through applicability to the NSPS standard, constitutes BART. We propose to approve the BART analysis and the emission limits for Eco-Services. Upon approval the limits in the SIP these limits will be federally enforceable.

We are proposing to approve Louisiana's Regional Haze SIP revision submitted on August 11, 2016. Specifically, we are proposing to find that the following elements have satisfied the federal requirement:

• the State's identification of BART-eligible sources,

• the State's determination that Sid Richardson Addis Plant is not subject to BART,

• the State's BART determinations for Phillips 66, Eco-Services, and Mosaic.

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

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

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

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

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

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

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

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

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

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

In addition, 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 proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the modification of regulations in 40 CFR part 180 for residues of a pesticide chemical in or on a food commodity. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.

Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

PP 5F8430. EPA-HQ-OPP-2016-0083. Bayer CropScience LP, P.O. Box 12014, 2 T.W. Alexander Drive Research Triangle Park, NC 27709, requests to amend the tolerance in 40 CFR 180.499 for residues of the fungicide, Propamocarb Hydrochloride, in or on potato at from 0.06 parts per million (ppm) to 0.30 ppm. The gas/liquid chromatography and N-FID or MSD is used to measure and evaluate the chemical propamocarb hydrochloride. Contact: RD.

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.

Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

PP 4F8303. EPA-HQ-OPP-2016-0594. Dow AgroSciences, 9330 Zionsville Road, Indianapolis, IN 46268, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide 2,4-D in or on cotton, gin byproducts at 1.5 parts per million (ppm), and cotton, undelinted seed at 0.8 ppm. The EN-CAS Method No. ENC-2/93 is used to measure and evaluate the chemical 2,4-D. Contact: RD.

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

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this proposed rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

Manufacturers (including importers) or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance to a proposed or final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

EPA is proposing these SNURs under TSCA section 5(a)(2) for three chemical substances which were the subject of PMNs P-15-276, P-15-378, and P-15-559. These SNURs would require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity. In accordance with the procedures at § 721.160(c)(3)(i), in the Federal Register publication of May 16, 2016 (81 FR 30452) (FRL-9944-77) EPA issued direct final SNURs on these chemical substances, which are the subject of PMNs. EPA received notices of intent to submit adverse comments on these SNURs. Therefore, as required by § 721.160(c)(3)(ii), EPA withdrew the direct final SNURs in the Federal Register of July 14, 2016 (81 FR 45416) (FRL-9948-81), and is now issuing this proposed rule on these three chemical substances. The records for the direct final SNURs on these chemical substances were established as docket EPA-HQ-OPPT-2015-0810. Those records include information considered by the Agency in developing the direct final rule. While notices of intent to submit adverse comments were received during the direct final rule phase, no substantive comments were submitted. EPA awaits the adverse comments during the open comment period for this proposed rule. Comments received on the two isocyanate PMN chemicals in today's proposed rule will be addressed in a final rule with isocyanate PMN chemicals that were the subject of previous proposed rules published in the Federal Register at 80 FR 845 (January 7, 2015) and 81 FR 21830 (April 13, 2016).

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use (15 U.S.C. 2604(a)(1)(B)(i)). TSCA furthermore prohibits such manufacturing or processing from commencing until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination (15 U.S.C. 2604(a)(1)(B)(ii)). As described in Unit V., the general SNUR provisions are found at 40 CFR part 721, subpart A.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before the manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register, a statement of EPA's findings.

Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.

To determine what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.

EPA is proposing significant new use and recordkeeping requirements for three chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:

• PMN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (assigned for non-confidential chemical identities).

• Public comments and EPA's response to comments on the three direct final SNURs

• Basis for the TSCA non-section 5(e) SNURs (i.e., SNURs without TSCA section 5(e) consent orders).

• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VII. for more information).

• CFR citation assigned in the regulatory text section of this proposed rule.

The three PMN substances included in this rulemaking are not subject to consent orders under TSCA section 5(e). These cases completed Agency review prior to June 22, 2016. Under TSCA, prior to the enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act on June 22, 2016, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “non-TSCA section 5(e) SNURs” are consistent with the determination made at the time and are promulgated pursuant to §  721.170. EPA has determined that every activity designated as a “significant new use” in all non-TSCA section 5(e) SNURs issued under §  721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and (ii) may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.

Chemical name: Functionalized carbon nanotubes (generic).

CAS number: Claimed confidential.

Basis for action: The PMN states that the substance will be used as a thin film for electronic device applications. Based on SAR analysis of test data on analogous carbon nanotubes and other respirable poorly soluble particulates, EPA identified potential lung effects and skin penetration and toxicity induction from inhalation and dermal exposure to the PMN substance. Further, EPA predicts toxicity to aquatic organisms via releases of the PMN substance to surface water. Although there is potential for dermal exposure, EPA does not expect significant occupational exposures due to the use of impervious gloves, and because the PMN is used in a liquid and is not spray applied except in a closed system. Further, EPA does not expect environmental releases during the use identified in the PMN submission. Therefore, EPA has not determined that the proposed manufacturing, processing, and or use of the substance may present an unreasonable risk to human health or the environment. EPA has determined, however, that any use of the substance without the use of impervious gloves, where there is potential for dermal exposure; manufacturing the PMN substance for use other than as a thin film for electronic device applications; manufacturing, processing, or using the PMN substance in a form other than a liquid; use of the PMN substance involving an application method that generates a mist, vapor, or aerosol except in a closed system; or any release of the PMN substance into surface waters or disposal other than by landfill or incineration may cause serious health effects or significant adverse environmental effects. Based on this information, the PMN substance meets the concern criteria at § 721.170 (b)(3)(ii) and (b)(4)(ii).

Recommended testing: EPA has determined that the results of a fish early-life stage toxicity test (OPPTS Test Guideline 850.1400); a daphnid chronic toxicity test (OPPTS Test Guideline 850.1300); an algal toxicity test (OCSPP Test Guideline 850.4500); a 90-day inhalation toxicity test (OPPTS 870.3465) with additional testing parameters beyond those noted at CFR 870.3465, for using the 90-day subchronic protocol for nanomaterial assessment; a two-year inhalation bioassay (OPPTS Test Guideline 870.4200); and a surface charge by electrophoresis (for example, using ASTM E2865-12 or NCL Method PCC-2—Measuring the Zeta Potential of Nanoparticles) would help characterize the health and environmental effects of the PMN substance.

CFR citation: 40 CFR 721.10902.

Chemical name: Diisocyanato hexane, homopolymer, alkanoic acid-polyalkylene glycol ether with substituted alkane (3:1) reaction products-blocked (generic).

CAS number: Claimed confidential.

Basis for action: The PMN states that the substance will be used as a dual cure/UV cure adhesion/barrier coating for wood substrates. Based on SAR analysis of test data on analogous diisocyanates, EPA identified concerns for respiratory sensitization. Furthermore, the National Institute for Occupational Safety and Health (NIOSH) alert at http://www.cdc.gov/niosh/docs/2006-149/pdfs/2006-149.pdf summarizes four case reports: one death and several incidents of asthma or other respiratory disease following exposure to methylenebis(phenyl isocyanate) (MDI) during spray-on truck bed lining operations. For this PMN substance, a significant new use is any use of the substance without a NIOSH-certified particulate respirator with an APF of at least 10 where there is a potential for inhalation exposure, or any use in consumer products. For new isocyanates submitted as PMNs, EPA expects to issue TSCA section 5(e) orders imposing 0.1% limits on total residual isocyanates and greater levels of respiratory protection (at least an APF of 50, or 1000 if used in a process that generates a vapor or particulate), and no consumer use. The Agency would then likely issue a SNUR defining the significant new use as total residual isocyanates exceeding that 0.1% limit and any use in a consumer product. However, as mentioned in Unit VI., below, and in the original May 16, 2016 direct final rule, EPA designated that date as the cutoff date for determining whether the new use is ongoing. Furthermore, a Notice of Commencement of Manufacture or Import was submitted and the chemical substance is now on the TSCA Inventory and is being used with respiratory protection with an APF of less than 50. For these reasons, EPA is not changing the terms of the original direct final SNUR for this PMN substance. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).

Recommended testing: EPA has determined that the results of a skin sensitization test (OPPTS Test Guideline 870.2600) and a 90-day inhalation toxicity test (OPPTS Test Guideline 870.3465) would help characterize the human health effects of the PMN substance.

CFR citation: 40 CFR 721.10913.

Chemical name: Modified diphenylmethane diisocyanate prepolymer with polyol (generic).

CAS number: Claimed confidential.

Basis for action: The PMN states that the generic (non-confidential) use of the substance will be as a raw material for flexible foam. Based on SAR analysis of analogous diisocyanates, EPA identified concerns for potential dermal and respiratory sensitization from dermal and inhalation exposures, and for pulmonary toxicity from inhalation exposure, to the PMN substance where the average molecular weight is below 7,500 daltons and any molecular weight species is below 1,000 daltons. For the molecular weight distribution described in the PMN, significant occupational exposures are not expected. Therefore, EPA has not determined that the proposed manufacture of the substance may present an unreasonable risk. EPA has determined, however, that any manufacture of the PMN substance with an average molecular weight below 7,500 daltons, and where any molecular weight species is below 1,000 daltons may cause serious health effects. For new isocyanates submitted as PMNs, EPA expects to issue TSCA section 5(e) orders imposing 0.1% limits on total residual isocyanates and greater levels of respiratory protection (at least an APF of 50, or 1000 if used in a process that generates a vapor or particulate), and no consumer use. The Agency would then likely issue a SNUR defining the significant new use as total residual isocyanates exceeding that 0.1% limit and any use in a consumer product. However, as mentioned in Unit VI., below, and in the original May 16, 2016 direct final rule, EPA designated that date as the cutoff date for determining whether the new use is ongoing. Furthermore, a Notice of Commencement of Manufacture or Import was submitted and the chemical substance is now on the TSCA Inventory and is being used with respiratory protection with an APF of less than 50. For these reasons, EPA is not changing the terms of the original direct final SNUR for this PMN substance. Based on this information, the PMN substance meets the concern criteria at § 721.170(b)(3)(ii).

Recommended testing: EPA has determined that the results of a skin sensitization test (OPPTS Test Guideline 870.2600) and a 90-day inhalation toxicity test (OPPTS Test Guideline 870.3465) would help characterize the human health effects of the PMN substance.

CFR citation: 40 CFR 721.10920.

During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA determined that one or more of the criteria of concern established at § 721.170 were met. For additional discussion on these chemical substances, see Units II. and IV. of this proposed rule.

EPA is proposing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this proposed rule:

• EPA would receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.

• EPA would have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• EPA would be able to either determine that the prospective manufacture or processing is not likely to present an unreasonable risk, or to take necessary regulatory action associated with any other determination, before the described significant new use of the chemical substance occurs.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at https://www.epa.gov/tsca-inventory.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this proposed rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.

When chemical substances identified in this proposed rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. The identities of the three chemical substances subject to this proposed rule have been claimed as confidential and EPA has received no post-PMN bona fide submissions (per §§ 720.25 and 721.11). Based on this, the Agency believes that it is highly unlikely that any of the significant new uses described in the regulatory text of this proposed rule are ongoing.

Therefore, as mentioned in the original May 16, 2016 direct final rule, EPA designated that date as the cutoff date for determining whether the new use is ongoing. Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that May 16, 2016 date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires. If such a person met the conditions of advance compliance under § 721.45(h), the person would be considered exempt from the requirements of the SNUR. Consult the Federal Register document of April 24, 1990 (55 FR 17376) for a more detailed discussion of the cutoff date for ongoing uses.

EPA recognizes that TSCA section 5 does not require developing any particular new information (e.g., generating test data) before submission of a SNUN. There is an exception: development of test data is required where the chemical substance subject to the SNUR is also subject to a rule, order or consent agreement under TSCA section 4 (see TSCA section 5(b)(1)).

In the absence of a TSCA section 4 test rule covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Guidelines for Pesticides and Toxic Substances.”

The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs and define the terms of any potentially necessary controls if the submitter provides detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

According to § 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca/how-submit-e-pmn.

EPA has used scientific information, technical procedures, measures, methods, protocols, methodologies, and models consistent with the risk assessment documents included in the public docket. These information sources supply information relevant to whether a particular use would be a significant new use, based on relevant factors including those listed under TSCA section 5(a)(2).

The clarity and completeness of the data, assumptions, methods, quality assurance, and analyses employed in EPA's decision are documented, as applicable and to the extent necessary for purposes of this proposed significant new use rule, in Unit II and in the documents noted above. EPA recognizes, based on the available information, that there is variability and uncertainty in whether any particular significant new use would actually present an unreasonable risk. For precisely this reason, it is appropriate to secure a future notice and review process for these uses, at such time as they are known more definitely. The extent to which the various information, procedures, measures, methods, protocols, methodologies or models used in EPA's decision have been subject to independent verification or peer review is adequate to justify their use, collectively, in the record for a significant new use rule.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this proposed rule, during the development of the direct final rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2015-0810.

This proposed rule would establish SNURs for three chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).

According to PRA (44 U.S.C. 3501 et seq.), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to this proposed rule have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This proposed rule would not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601 et seq.), that promulgation of a SNUR does not have a significant economic impact on a substantial number of small entities where the following are true:

1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

2. The SNUR submitted by any small entity would not cost significantly more than $8,300.

A copy of that certification is available in the docket for this proposed rule.

This proposed rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit IX. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:

• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.

• Submission of the SNUN would not cost any small entity significantly more than $8,300.

Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government would be impacted by this proposed rule. As such, EPA has determined that this proposed rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq.).

This proposed rule would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).

This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this proposed rule.

This proposed rule is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this proposed rule does not address environmental health or safety risks disproportionately affecting children.

This proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this proposed rule is not expected to affect energy supply, distribution, or use and because this proposed rule is not a significant regulatory action under Executive Order 12866.

In addition, since this proposed rule would not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), would not apply to this proposed rule.

This proposed rule does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Therefore, it is proposed that 40 CFR chapter I be amended as follows: