Federal Register Vol. 81, No.96,

I. Executive Summary A. Purpose of This Proposed Rule

The purpose of this proposed rule is to require installation of broadband infrastructure at the time of new construction or substantial rehabilitation of multifamily rental housing that is funded or supported by HUD.1 This rulemaking does not require a HUD-funded grantee to undertake new construction or substantial rehabilitation, but when a grantee does choose to pursue such activity for multifamily rental housing with HUD funding, this proposed rule would require installation of broadband infrastructure. While the proposed rule only requires affected grantees to install one form of broadband infrastructure, HUD suggests that grantees consider whether installing more than one form of broadband infrastructure would be beneficial to encourage competition among service providers on quality and price. Installing unit-based broadband infrastructure in multifamily rental housing that is newly constructed and substantially rehabilitated with or supported by HUD funding will provide a platform for individuals and families residing in such housing to participate in the digital economy, and increase their access to economic opportunities.

This proposed rule would require installation of broadband infrastructure at the time of new construction or substantial rehabilitation of multifamily rental units funded by the following programs:

1. Choice Neighborhoods Implementation Grant program;

2. Community Development Block Grant (CDBG) program, including the CDBG Disaster Recovery program;

3. Continuum of Care program;

4. HOME Investment Partnerships program;

5. Housing Opportunities for Persons With AIDS program;

6. Housing Trust Fund program;

7. Project-Based Voucher program;

8. Public Housing Capital Fund program;

9. Section 8 project-based housing assistance payments programs, including, but not limited to, the Section 8 New Construction, Substantial Rehabilitation, Loan Management Set-Aside, and Property Disposition programs; and

10. Supportive Housing for the Elderly and Persons with Disabilities program.

The requirements of the proposed rule would not apply to multifamily rental housing that only has a mortgage insured by HUD's Federal Housing Administration or with a loan guaranteed under a HUD loan guarantee program.

HUD is proposing to define broadband infrastructure as cables, fiber optics, wiring, or other permanent infrastructure, including wireless infrastructure, as long as the installation results in broadband infrastructure in each dwelling unit meeting the definition created by the Federal Communications Commission (FCC), which currently is 25 Megabits per second (Mbps) download, 3 Mbps upload. In addition, HUD is proposing that, for programs that do not already have a definition of substantial rehabilitation, substantial rehabilitation be defined as work on the electrical system that is equal to or greater than 75 percent of the cost of replacing the entire electrical system, or when the cost of the rehabilitation is equal to or greater than 75 percent of the total estimated cost of replacing the multifamily rental housing after the rehabilitation is complete.

The costs and benefits of this proposed rule are difficult to quantify, but they can be described qualitatively. This proposed rule only requires that the broadband infrastructure provided is to receive high-speed Internet that is “accessible” in each unit; it does not require those recipients of funding undertaking new construction or substantial rehabilitation to provide a regular subscription to broadband service (even at a cost) to current or future residents. Furthermore, the definition of broadband infrastructure in the proposed rule is broad enough to include coaxial cable television (TV) wiring that supports cable modem access or even permanent infrastructure that would provide broadband speeds to dwelling units wirelessly. The rulemaking also provides for exceptions to the installation requirements for where the installation is too costly to provide due to location or building characteristics.

A recent survey by the National Association of Homebuilders found that just 4 percent of the surveyed multifamily housing developers never installed landline wires and jacks in multifamily units completed in the past 12 months.2 In recent years, HUD's competitive grants for new construction under the Choice Neighborhoods program have sought the provision of broadband access. Therefore, this rulemaking simply proposes to codify what is considered common practice in the private market today when new construction or substantial rehabilitation is undertaken.

Given the wide range of technologies that may be employed to meet the requirements of this proposed rule, it is not possible to specify the cost of the technology and how much additional burden this may be for owners or developers building or providing substantial rehabilitation to HUD-assisted rental housing. If the broadband infrastructure is wiring connected to proximate telephone or cable company networks, the cost is not expected to be significant, as all electrical work in a multifamily project is estimated to be only about 10 percent of the construction cost; 3 running an additional cable through existing electrical conduits would be a minimal incremental cost. If the broadband infrastructure is wireless, the cost will be for the equipment, which varies greatly by the design and size of the project, as does the cost per unit. Given that the costs of installation of broadband infrastructure are only a portion of the 10 percent of construction costs, the requirement proposed by this rulemaking is not expected to measurably reduce the size of the housing or the number of units to be constructed. At most, installation of broadband infrastructure may reduce the provision of other amenities or nonessential finishes, but HUD considers even these reductions. Additionally, the proposed rule only applies to new construction or substantial rehabilitation that is supported with HUD-provided resources.

Materials on the benefits of narrowing the digital divide are voluminous. Having broadband Internet in the home increases household income 4 and yields higher education achievement for students.5 On July 2015, the Council of Economic Advisers issued the report “Mapping the Digital Divide,” which examines progress in the United States in narrowing the digital divide and the work that still needs to be done, especially in the Nation's poorest neighborhoods and most rural communities.6 However, this proposed rule's limited scope in only requiring the installation of infrastructure instead of providing Internet access also limits the benefits of the proposed rule. The benefit of the proposed rule is that where broadband Internet service can be made available, the tenant, residing in housing with broadband infrastructure, will be assured of the ability to access broadband Internet service, whether they choose and are able to afford Internet service or not. This puts broadband Internet service within reach, especially where other charitable and public social programs, including HUD's ConnectHome program, provide free or reduced-cost service.

On March 23, 2015, President Obama issued a Presidential memorandum on “Expanding Broadband Deployment and Adoption by Addressing Regulatory Barriers and Encouraging Investment and Training.” 7 In this memorandum, the President noted that access to high-speed broadband is no longer a luxury, but it is a necessity for American families, businesses, and consumers. The President further noted that the Federal Government has an important role to play in developing coordinated policies to promote broadband deployment and adoption, including promoting best practices, breaking down regulatory barriers, and encouraging further investment.

On July 15, 2015, HUD launched its Digital Opportunity Demonstration, known as “ConnectHome,” in which HUD provided a platform for collaboration among local governments, public housing agencies, Internet service providers, philanthropic foundations, nonprofit organizations, and other relevant stakeholders to work together to produce local solutions for narrowing the digital divide in communities across the nation served by HUD. The demonstration, or pilot, commenced with the participation of 28 communities.8 Through contributions made by the Internet service providers and other organizations participating in the pilot, residents living in public and HUD-assisted housing in these 28 communities will receive discounted broadband service, technical assistance, literacy training, and electronic devices that provide for accessing high-speed Internet.

The importance of all Americans having access to the Internet cannot be overstated. As HUD stated in its announcement of the Digital Opportunity Demonstration, published in the Federal Register on April 3, 2015, at 80 FR 18248, knowledge is a pillar to achieving the American Dream—a catalyst for upward mobility as well as an investment that ensures each generation has opportunities to succeed. Many low-income Americans do not have broadband Internet at home, contributing to the estimated 66 million Americans who lack basic digital literacy skills.9 Without broadband adoption and the skills to use Internet technology at home, children and adults can miss out on the high-value educational, economic, and social impact that high-speed Internet provides. It is for these reasons that HUD is exploring ways, beyond ConnectHome, to narrow the digital divide for the low-income individuals and families served by HUD multifamily rental housing programs. This proposed rule presents one such additional effort.

This proposed rule would apply to new construction and substantial rehabilitation of multifamily rental housing in the HUD programs that authorize and fund such activities. These programs are listed in Section II.B of this preamble. The proposed rule would not apply to multifamily rental housing with a mortgage insured by HUD's Federal Housing Administration (FHA) or with a loan guaranteed under a HUD loan guarantee program.10 Further, this proposed rule would not apply to new construction or substantial rehabilitation of single-family or single-unit housing.

HUD proposes to require installation of broadband infrastructure in individual housing units at the time of new construction or substantial rehabilitation of multifamily rental housing, because while such installation is not without cost, the cost can be reduced by providing the installation at the time when housing is first being built or substantially rehabilitated.

As provided in section I.B. of this preamble, this proposed rule would apply to multifamily rental housing that is to be newly constructed or substantially rehabilitated with funds under the following HUD programs, as implemented through the regulations or under authorities cited below:

1. Choice Neighborhoods Implementation Grant program, for which the requirements are found in HUD notices of funding availability (NOFAs);

2. Community Development Block Grant (CDBG) program, for which the regulations are found in 24 CFR part 570;

3. Continuum of Care (CoC) program, for which the regulations are found in 24 CFR part 578;

4. HOME Investment Partnerships (HOME) program, for which the regulations are found in 24 CFR part 92;

5. Housing Opportunities for Persons With AIDS (HOPWA) program, for which the regulations are found in 24 CFR part 574;

6. Housing Trust Fund (HTF) program, for which the regulations are found in 24 CFR part 93;

7. Project-Based Voucher program, for which the regulations are found in 24 CFR part 983;

8. Public Housing Capital Fund program, for which the regulations are found in 24 CFR part 905;

9. Section 8 project-based housing assistance payments programs, including, but not limited to, the Section 8 New Construction, Substantial Rehabilitation, Loan Management Set-Aside, and Property Disposition programs; and

10. Supportive Housing for the Elderly and Persons with Disabilities program, for which the regulations are found in 24 CFR part 891.

One of HUD's major new construction and substantial rehabilitation programs, the Choice Neighborhoods program, already requires broadband infrastructure in new construction units and permits the use of Choice Neighborhood funds for broadband infrastructure in substantially rehabilitated units. In addition, Choice Neighborhood grantees may use up to 15 percent of their grants for Critical Community Improvements, of which neighborhood broadband programs are considered an eligible expense. The Choice Neighborhoods program supports locally driven strategies to address struggling neighborhoods with distressed public or HUD-assisted housing through a comprehensive approach to neighborhood transformation. The program is designed to catalyze critical improvements in neighborhood assets, including vacant property, housing, services, and schools. One of the three core goals of the Choice Neighborhoods program is to replace distressed public and assisted housing with high-quality, mixed-income housing.11 The Choice Neighborhoods program is implemented through annual NOFAs. HUD's Fiscal Year (FY) 2014 Choice Neighborhoods NOFA requires housing to be built with broadband Internet infrastructure.12

As noted in the Summary, HUD recognizes that installation of broadband infrastructure will not be feasible for every new construction or substantial rehabilitation of multifamily rental housing proposed to be covered by this proposed rule. For example, HUD recognizes that constructing or undertaking substantial rehabilitation of multifamily rental housing in certain areas may make installation of broadband infrastructure infeasible. As the Rural Utilities Service of the U.S. Department of Agriculture (USDA) stated in a final rule entitled “Economic Benefits of Broadband Deployment in Rural Areas,” published on February 6, 2013,13 bringing broadband services to rural areas presents challenges because rural systems must contend with lower household density than urban systems. Similarly, the particular type or structure of covered multifamily rental housing to be substantially rehabilitated may also make the installation of broadband infrastructure infeasible. The proposed rule therefore offers exceptions to broadband installation requirements when a funding recipient determines that installing broadband infrastructure is not feasible. Recipients and owners will be responsible for maintaining documentation that justifies the recipient's determination of infeasibility. HUD will consider providing additional guidance on this issue when the final rule becomes effective.

As noted in the Summary, “broadband” is the common term used to refer to a very fast connection to the Internet. Such connection is also referred to as high-speed broadband or high-speed Internet. HUD recognizes that broadband is defined by several agencies as Internet access of at least a certain speed.14 HUD is proposing to require that, where feasible, infrastructure be installed to provide every housing unit covered by this proposed rule with the ability to access the Internet that meets the definition adopted by the FCC—currently 25 Mbps download, 3 Mbps upload— regardless of whether any Internet service provider offers such access in a given location. This will provide the capacity for future broadband adoption without having to undertake additional renovation work. If the FCC modifies its definitions in the future, HUD's requirements for any new construction or substantial rehabilitation undertaken after the definition change will also change.

The broadband infrastructure that needs to be installed to provide families in covered multifamily rental housing with broadband access will vary according to the housing being constructed or rehabilitated and the plans of the entity doing such construction or rehabilitation. Therefore, HUD proposes a flexible definition, allowing entities undertaking new construction or substantial rehabilitation to install the broadband infrastructure that is most feasible given the specifics of the construction or substantial rehabilitation to be undertaken. HUD proposes to require installation of cables, fiber optics, wiring, or other infrastructure, as long as the installation results in broadband accessibility in each dwelling unit. HUD proposes only to require the installation of broadband infrastructure on the property, not to require that grantees be responsible for ensuring an external connection between the property and an Internet service provider (ISP).

While some of the HUD programs listed in Section II.B of this preamble define what is meant by “substantial rehabilitation,” the majority of the covered programs do not define this term. Therefore, for the sole purpose of determining when substantial rehabilitation of covered multifamily rental housing would trigger installation of broadband infrastructure and, except in the HOPWA program, where substantial rehabilitation is already defined, HUD proposes to define “substantial rehabilitation” to mean:

(1) Significant work on the electrical system of the multifamily rental housing. “Significant work” is defined as work that is equal to or greater than 75 percent of the cost of replacing the entire electrical system. In the case of multifamily rental housing with multiple buildings with more than 4 units, “entire system” refers to the electrical system of the building(s) undergoing rehabilitation; or

(2) Rehabilitation of the multifamily rental housing in which the estimated cost of the rehabilitation is equal to or greater than 75 percent of the total estimated cost of replacing the multifamily rental housing after the rehabilitation is complete. In the case of multifamily rental housing with multiple buildings with more than 4 units, the replacement cost used in this determination would be the replacement cost of the building(s) undergoing rehabilitation.

HUD intends for this proposed rule to apply to projects that have not yet established their budgets and had funding approved, in order to give recipients and owners adequate time to factor the installation of broadband infrastructure into their new construction or substantial rehabilitation plans.

With this proposed rule, HUD seeks to take another important step toward narrowing the digital divide by providing residents in covered multifamily rental housing that is to be newly constructed or substantially rehabilitated with infrastructure that supports access to broadband Internet service, thereby increasing access to educational and economic opportunities for these residents.

While HUD welcomes comments on all aspects of this proposed rule, HUD is seeking specific comment on the following questions:

1. In light of the policy objectives discussed in the preamble, should this proposed rule be applied to other HUD programs, particularly additional multifamily housing programs (such as Rental Supplement (RS), Rental Assistance Payment (RAP), Moderate Rehabilitation Programs (Mod Rehab), etc.) or programs addressing single-family housing? Should any programs covered by this proposed rule be removed?

2. Given that the definition of the term “substantial rehabilitation” will determine which projects (other than new construction) are affected by this rulemaking, should the definition be changed in any way?

3. How much does it cost to add the installation of broadband infrastructure to a pre-planned new construction or rehabilitation project? Are HUD's estimates for the labor and materials costs for installing broadband infrastructure accurate? What data can the public share with HUD about the most cost-effective way for broadband infrastructure to be installed during a new construction or rehabilitation project?

4. The proposed rule provides exceptions to the requirements if compliance would be infeasible due to cost, location, or structural concerns. Are these exceptions too broad or too narrow? What is the best way for grantees to demonstrate to HUD that installation of broadband infrastructure is infeasible, and what would appropriate sanctions be if grantees do not comply even if it was feasible? Do any grantees have experience with a project in which installing broadband infrastructure was physically or economically infeasible, and under what circumstances was it infeasible?

5. When evaluating whether the rehabilitation being done meets the threshold in the definition of substantial rehabilitation, should HUD use the pre-rehabilitation estimates for the project alone, or should HUD include increases in rehabilitation costs that arise in the process of rehabilitation?

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This proposed rule was determined to be a “significant regulatory action” as defined in section 3(f) of the Executive order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Executive order).

As discussed, this proposed rule furthers HUD's efforts to narrow the digital divide in low-income communities served by HUD. Specifically, HUD proposes to require installation of broadband infrastructure at the time of new construction or substantial rehabilitation of multifamily rental housing that is funded by HUD. As noted in the Executive Summary, the costs and benefits of this proposed rule are difficult to quantify, but they can be described qualitatively.

The evidence demonstrating the benefits of narrowing the digital divide is well documented. In just one example, a study conducted by a former Chair of the President's Council of Economic Advisers used data on the amount of time Internet users spend online to estimate that Internet access produces thousands of dollars of consumer surplus per user each year.15 As noted above, however, the benefits of Internet technology have not been evenly distributed and research shows that there remain substantial disparities in both Internet use and the quality of access. This digital deficit is generally concentrated among older, less educated, and less affluent populations.16

HUD recognizes that the proposed rule's limited scope in only requiring the installation of infrastructure, instead of providing Internet access, also limits the benefits of the proposed rule. Specifically, the benefit of the proposed rule is that where broadband Internet can be made available at a limited price, the tenant, residing in housing with broadband infrastructure, will be assured of the ability to access broadband Internet service, whether they choose and are able to afford Internet service or not. This proposed rule, therefore, would put broadband Internet service within reach where other charitable and public social programs, including HUD's ConnectHome program, provide free or reduced cost service.

It is not possible to specify the exact costs that recipients and owners may incur as a result of the proposed rule, given the variety of available technologies that may be used to satisfy the new broadband requirements. However, available data indicates that any costs associated with this proposed rule will be minimal.

As is displayed on table I, broadband Internet access can be provided using two general technologies: Wired and wireless, each with several specific technologies. Broadband can be delivered over wired lines using very-high-bit-rate digital subscriber lines (VDSL), cable lines, power lines (BPL), or fiber optic platforms. Using wireless technologies, broadband can be provided using satellite, fixed wireless, mobile wireless, and Wi-Fi platforms.

Whereas wired lines technologies may require some sort of physical infrastructure consisting of internal wiring within the dwelling unit, wireless technologies do not require any additional physical infrastructure within the building. With wireless technology, the signal travels through the air to the customer, who uses a connection technology, such as a modem, to access the services. For wireless technologies, the infrastructure cost to the property boundary (connection to the service provider) is nil ($0). However, the availability of wireless broadband service is limited and evolving, so HUD expects many builders will opt to install wired broadband infrastructure.

Building costs of installing wired infrastructure are limited to in-dwelling wiring, as this is all that is required by the proposed rule. Within the unit or the building, the electrical work consists of running cable (meeting the requirements of category (Cat) 5e or Cat 6 wire), installing jacks and plates, and minor construction work (such as drilling and patching walls). Fiber optic cables are rarely run in the dwelling unit but are installed by the service provider outside the unit; the non-fiber optic wiring then makes broadband accessible within the unit. Depending on the market, some of the cost is also born by the service provider.

The average per-unit cost for wiring for broadband Internet is approximately $200 17 (see table II). These costs are simply estimates of one method of complying with the requirements of the proposed rule. Labor costs will also vary based on the region and whether the installation is being done as part of substantial rehabilitation or new construction. At most, installation of broadband infrastructure may reduce the provision of other amenities or nonessential finishes, but even these reductions are considered unlikely.

HUD also notes that the proposed rule is drafted so as to minimize the costs of the new installation requirements. For example, the proposed rule does not mandate any rehabilitation or construction, and the decision to undertake such activities appropriately remains with recipients and owners. Rather, the scope of the proposed regulatory changes is limited to requiring the installation of broadband infrastructure if the recipient or owner elects to undertake new construction or substantial rehabilitation. The proposed rule minimizes the economic impacts on recipients and owners by recognizing that the installation of broadband infrastructure is generally less burdensome and costly at the time of new construction or substantial rehabilitation than when such installation is undertaken as a stand-alone effort.

Moreover, this proposed rule only requires the installation of broadband infrastructure that is “accessible” in each unit. The proposed rule does not require recipients or owners to provide a regular subscription to broadband Internet service (even at a cost) to residents. Also minimizing the economic costs of the proposed regulatory changes is the fact that the proposed definition of broadband infrastructure is broad enough to include cable television, fiber optic cabling, and wireless infrastructure providing appropriate broadband connectivity to the individual units. As discussed above in this Executive Summary, multifamily HUD or standard- market new construction typically provides telephone landline and cable TV connectivity. Further, HUD's competitive grants for new construction under the Choice Neighborhoods program have, in recent years, sought the provision of broadband.

A review of HUD internal databases, summarized on table III, shows that in 2013, the 58,677 units within the targeted programs were newly constructed or rehabilitated. However, HUD's data did not contain specific information to be able to determine how many of the units that underwent rehabilitation met the definition of “substantial rehabilitation” contained in the proposed rule, so the number of affected units would be smaller than is contained in the table. In addition, data on affected units newly constructed using CDBG funding is unavailable, as grantee reports do not separate multifamily from single-unit new construction.

Further, a review found that multifamily (5-plus unit) HUD or standard-market new construction typically provides telephone landline and many provide cable TV connectivity.18 A recent survey by the National Association of Homebuilders found that just 4 percent of the surveyed multifamily housing developers did not install landline wires and jacks in multifamily units completed in the past 12 months.18 19 In recent years, HUD's competitive grants for new construction under the Choice Neighborhoods program have required the provision of broadband.20 Therefore, this proposed rule simply codifies what is considered common practice in several programs.

Accordingly, most recipients and owners already meet the standards established in the proposed rule, and the new regulatory requirements will impose minimal, if any, new economic costs. HUD has addressed those rare situations where the proposed new requirements may prove too costly by granting exceptions to the installation requirements where the installation is economically infeasible due to location or building characteristics.

The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulation Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The proposed rule would provide that for new construction or substantial rehabilitation of multifamily rental housing funded by HUD, as part of the new construction or substantial rehabilitation to be undertaken, such activity must include installation of broadband infrastructure. None of the HUD-covered programs listed in this proposed rule require a grantee to undertake new construction or substantial rehabilitation. Instead, new construction and substantial rehabilitation are eligible activities that grantees may take using HUD funds. Therefore, small entities will not incur any costs than they otherwise would incur by voluntarily undertaking new construction or substantial rehabilitation, since the costs of these activities, including the installation of broadband infrastructure, are funded by HUD. For these reasons, this proposed rule will not have a significant economic impact on a substantial number of small entities.

Notwithstanding HUD's determination that this proposed rule will not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this proposed rule that will meet HUD's objectives, as described in this preamble.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule will not impose any Federal mandates on any State, local, or tribal governments or the private sector within the meaning of the UMRA.

The information collection requirements contained in this proposed rule must be submitted to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) for review and approval. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.

The burden of the information collections in this proposed rule is estimated to be minimal. The reporting of new construction or substantial rehabilitation activity under the programs covered by this proposed rule is not increased through the installation of broadband infrastructure. However, the information collection that is new is the documentation required of the grantee that the location of proposed new construction makes installation of broadband infrastructure infeasible, or that the cost of installing the infrastructure would result in a fundamental alteration in the nature of its program or activity or in an undue financial burden. The total number of grantees that undertake new construction or substantial rehabilitation, as defined in this proposed rule, with HUD funds is currently low, and this is reflected in the respondents.

In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning this collection of information to:

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

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;

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

(4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Interested persons are invited to submit comments regarding the information collection requirements in this proposed rule. Comments must refer to the proposal by name and docket number (FR-5890-P-01) and must be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503, Fax number: 202-395-6947, and Collette Pollard, Reports Liaison Officer, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410.

A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations in 24 CFR part 50 that implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection, during regular business hours, in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500, or online at www.regulations.gov. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This proposed rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments nor preempt State law within the meaning of the Executive order.

The Catalog of Federal Domestic Assistance numbers applicable to the programs that would be affected by this rule are: 14.218, 14.225, 14.228, 14.239, 14.241, 14.267, 14.850, 14.871, and 14.872.

Accordingly, for the reasons stated in the preamble, HUD proposes to amend 24 CFR parts 5, 92, 93, 570, 574, 578, 880, 881, 883, 884, 886, 891, 905, and 983 as follows:

The purpose of this proposed rule is to require States and local governments to evaluate the availability of broadband access and the vulnerability of housing occupied by low- and moderate income households to natural hazard risks, many of which may be increasing due to climate change, in their consolidated planning efforts. These evaluations will be conducted using readily available data sources developed by Federal government agencies and other available data and analyses, including State, Tribal, and local hazard mitigation plans that have been approved by the Federal Emergency Management Agency (FEMA). Where access to broadband Internet service is not currently available or is minimally available (such as in certain rural areas), States and local governments must consider ways to bring broadband Internet access to low- and moderate-income residents, including how HUD funds could be used to narrow the digital divide for these residents. Further, where low- and moderate-income communities are at risk of natural hazards, including those that are expected to increase due to climate change, States and local governments must consider ways to incorporate appropriate hazard mitigation and resilience into their community planning and development goals, codes, and standards, including the use of HUD funds. These two planning considerations reflect emerging needs of communities in this changing world. Broadband access provides access to a wide range of resources, services, and products and such access not only can assist individuals in improving their economic outlook, but also assists communities in this same way. Analysis of natural hazards, including the anticipated effects of climate change on those hazards, is important to help ensure that jurisdictions are aware of existing and developing vulnerabilities in the geographic areas that they serve that can threaten the health and safety of the populations they serve.

The current regulations require that local governments and States consult public and private agencies that provide assisted housing, health services, and social and fair housing services during preparation of the consolidated plan. Under the current regulations, local governments and States are also required in their citizen participation plan to encourage the participation of local and regional institutions and businesses in the process of developing and implementing their consolidated plans. The proposed rule would require States and local governments, in preparing their consolidated plans, to add to the list of public and private agencies and entities that they now must consult with for preparation of their plans, to consult with public and private organizations, including broadband Internet service providers, organizations engaged in narrowing the digital divide (e.g., schools, digital literacy organizations), and agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies. Jurisdictions must also encourage the participation of these entities in implementing relevant components of the plan.

The proposed rule would also require jurisdictions to describe broadband access in housing occupied by low- and moderate-income households based on an analysis of data for its low- and moderate-income neighborhoods in the National Broadband Map 1 created by the National Telecommunications and Information Administration (NTIA) of the Department of Commerce. Grantees may also use broadband availability data in the Federal Communications Commission (FCC) Form 477 2 or other data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan. These needs include the need for broadband wiring and for connection to the broadband service in the household units, the need for increased competition by having more than one broadband Internet service provider serve the jurisdiction.

The proposed rule would also require that jurisdictions provide, as part of their required housing market analysis, an assessment of natural hazard risks, including risks expected to increase due to climate change, to low- and moderate-income residents based on an analysis of data, findings, and methods in (1) the most recent National Climate Assessment,3 the Climate Resilience Toolkit,4 the Impact of Climate Change and Population Growth on the National Flood Insurance Program Through 2100,5 or the Community Resilience Planning Guide for Buildings and Infrastructure Systems prepared by the National Institute of Standards and Technology (NIST); 6 (2) other climate risk-related data published by the Federal government or other State or local government climate risk related data, including FEMA-approved hazard mitigation plans which incorporate climate change; or (3) other climate risk data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan. Grantees may request Technical Assistance through their HUD Field Office or directly at www.HUDExchange.info/get-assistance.

HUD's Consolidated Plan process, established by regulation in 1994, provides a comprehensive planning process for HUD programs administered by HUD's Office of Community Planning and Development, specifically the Community Development Block Grant (CDBG) program, the HOME Investment Partnerships (HOME) program, Emergency Solutions Grants (ESG) program and the Housing with Opportunities for Persons With AIDS (HOPWA). Comprehensive community planning provides officials with an informative profile of their communities in terms of population, housing, economic base, community facilities, and transportation systems, and such information aids officials in their investment decisions. HUD's Consolidated Planning process assists State and local officials that are recipients of HUD funds under the above-listed programs in determining the housing and community development needs of their respective communities. Requiring consolidated plan jurisdictions to consider the broadband and natural hazard resilience needs of their communities helps to ensure a more complete profile of the needs of their communities. As discussed in this preamble, the importance of providing broadband access to all cannot be overstated. Broadband access is not only important to increasing opportunity for an individual's success, but to the success of a community. Consideration of the impact of natural hazard risks, many of which are anticipated to increase due to climate change, in one's community, and how communities can help mitigate any such adverse impacts, is equally important as it will help to guide the best use of land and orderly and sustainable growth. In brief, the benefits of this proposed rule are to promote a balanced planning process that more fully considers the housing, environmental, and economic needs of communities.

HUD does not anticipate that the costs of the revised consultation and reporting requirements will be significant since the regulatory changes proposed by this proposed rule merely build upon similar existing requirements for other elements covered by the consolidated planning process rather than mandating completely new procedures. Further, the required assessments will be based on data readily available on the Internet. Therefore, jurisdictions will not have to incur the expense and administrative burdens associated with collecting data. Moreover, this proposed rule does not mandate that actions be taken to address broadband needs or climate change adaptation needs. Consolidated plan jurisdictions are in the best position to decide how to expend their HUD funds. However, HUD believes that the additional analyses required by this rule may highlight areas where expenditure of funds would assist in opening up economic opportunities through increased broadband access or mitigate the impact of possible natural hazards, including those that may be exacerbated due to climate change. HUD leaves it to jurisdictions to consider any appropriate methods to promote broadband access or protect against the adverse impacts of climate change, taking into account the other needs of their communities, and available funding, as identified through the consolidated planning process.

On March 23, 2015, President Obama issued a Presidential Memorandum on “Expanding Broadband Deployment and Adoption by Addressing Regulatory Barriers and Encouraging Investment and Training.” 7 In this memorandum, the President noted that access to high-speed broadband is no longer a luxury, but it is a necessity for American families, businesses, and consumers.8 The President further noted that the Federal government has an important role to play in developing coordinated policies to promote broadband deployment and adoption, including promoting best practices, breaking down regulatory barriers, and encouraging further investment.

The memorandum established an interagency Broadband Opportunity Council, including representatives from the Executive Branch agencies, for the purposes of consulting with State, local, tribal, and territorial governments, as well as telecommunications companies, utilities, trade associations, philanthropic entities, policy experts, and other interested parties to identify and assess regulatory barriers and opportunities to broadband adoption. The council's report, published by the White House on September 21, 2015, included a number of specific actions that agencies (including HUD) agreed to take to promote greater broadband deployment and adoption. This change to the Consolidated Planning process is one of those actions.9

On July 15, 2015, HUD launched its Digital Opportunity Demonstration, known as “ConnectHome,” in which HUD provided a platform for collaboration among local governments, public housing agencies, Internet service providers, philanthropic foundations, nonprofit organizations and other relevant stakeholders to work together to produce local solutions for narrowing the digital divide in communities across the nation served by HUD.10 The demonstration, or pilot as it is also called, commenced with the participation of 28 communities. Through contributions made by the Internet service providers and other organizations participating in the pilot, these 28 communities will benefit from the ConnectHome collaboration by receiving, for the residents living in HUD public and assisted housing in these communities, broadband infrastructure, technical assistance, literacy training, and electronic devices that provide for accessing high-speed Internet.

On March 9, 2016, President Obama launched the ConnectALL initiative to ensure that more Americans have the broadband they need to get a job, engage their community, and deliver opportunity to their children.11 ConnectALL will increase the affordability of broadband for low-income Americans; deliver digital literacy skills; increase access to affordable devices; develop a tool to support broadband planning; bring together private sector corporations helping to deliver affordable connectivity; and marshal philanthropic support for digital inclusion. The goal of ConnectALL is to create a national effort to connect 20 million more Americans to broadband by 2020.

The importance of all Americans having access to the Internet cannot be overstated. As HUD stated in its announcement of the Digital Opportunity Demonstration, published in the Federal Register on April 3, 2015, at 80 FR 18248, “[k]nowledge is a pillar to achieving the American Dream—a catalyst for upward mobility as well as an investment that ensures each generation is as successful as the last.” 12 Many low-income Americans do not have broadband Internet at home, contributing to the estimated 66 million Americans who are without the most basic digital literacy skills. Without broadband access and connectivity and the skills to use Internet technology at home, children will miss out on the high-value educational, economic, and social impact that high-speed Internet provides. It is for these reasons that HUD is exploring ways, beyond ConnectHome, to narrow the digital divide for the low-income individuals and families served by HUD multifamily rental housing programs. This proposed rule presents one such additional effort.

On November 1, 2013, President Obama signed Executive Order 13653, on “Preparing the United States for the Impacts of Climate Change.” 13 The Executive Order recognizes that the impacts of climate change—including an increase in prolonged periods of excessively high temperatures, more heavy downpours, an increase in wildfires, more severe droughts, permafrost thawing, ocean acidification, and sea-level rise—are often most significant for communities that already face economic or health-related challenges. Research has developed the concept of social vulnerability, which describes characteristics (age, gender, socioeconomic status, special needs, race, and ethnicity) of populations that influence their capacity to prepare for, respond to, and recover from hazards and disasters, including the sensitivity of a population to climate change impacts and how different people or groups are more or less vulnerable to those impacts. Social vulnerability and equity in the context of climate change are important because some populations may have less capacity to prepare for, respond to, and recover from climate-related hazards and effects.14 Executive Order 13653 asserts that managing these risks requires deliberate preparation, close cooperation, and coordinated planning by the federal government, State, Tribal, and local governments, and stakeholders. Further, the Executive Order calls upon Federal agencies to identify opportunities to support and encourage smarter, more climate-resilient investments by States, local communities, and tribes, through grants and other programs, in the context of infrastructure development.

Section 7 of Executive Order 13653 established the President's State, Local, and Tribal Leaders Task Force on Climate Change Resilience and Preparedness (Task Force). Co-chaired by the Chair of the White House Council on Environmental Quality and the Director of the White House Office of Intergovernmental Affairs, the Task Force consisted of 26 governors, mayors, county officials, and Tribal leaders from across the United States. Members brought first-hand experiences in building climate preparedness and resilience in their communities and conducted broad outreach to thousands of government agencies, trade associations, planning agencies, academic institutions, and other stakeholders, to inform their recommendations to the Administration.

The President charged the Task Force with providing recommendations on how the Federal government can respond to the needs of communities nationwide that are dealing with the impacts of climate change by removing barriers to resilient investments, modernizing Federal grant and loan programs to better support local efforts, and developing the information and tools they need to prepare, among other measures. In November 2014, Task Force members presented their recommendations for the President at a White House meeting with Vice President Biden and other senior Administration officials.15 Among other actions, the Task Force called on HUD to consider strategies within existing grant programs to facilitate and encourage integrated hazard mitigation approaches that address climate-change related risks, land use, development codes and standards, and capital improvement planning. This proposed rule represents one step that HUD is taking to implement these recommendations.

HUD's consolidated planning process serves as the framework for a community-wide dialogue to identify housing and community development priorities that align and focus funding from the HUD formula block grant programs: Community Development Block Grant (CDBG) program, HOME Investment Partnerships (HOME) program, Emergency Solutions Grant (ESG) program, and Housing Opportunities for Persons With AIDS (HOPWA) program. HUD's regulations for the consolidated planning are codified at 24 CFR part 91(entitled “Consolidated Submissions for Community Planning and Development Programs”).

The Consolidated Plan, which may have a planning duration of between 3 and 5 years, is designed to help States and local governments assess their affordable housing and community development needs, in the context of market conditions at the time of their planning, and to make data-driven, place-based decisions on how to expend HUD funds in their jurisdictions. In developing their consolidated plans, States and local governments are required to engage their communities, both in the process of developing and reviewing the proposed plan, and as partners and stakeholders in the implementation of the plan. By consulting and collaborating with other public and private entities, States and local governments can better align and coordinate community development programs with a range of other plans, programs, and resources to achieve greater impact. A jurisdiction's consolidated plan is carried out through annual action plans, which provide a concise summary of the actions, activities, and the specific Federal and non-federal resources that will be used each year to address the priority needs and specific goals identified by the Consolidated Plan. States and local governments report on accomplishments and progress toward consolidated plan goals in the Consolidated Annual Performance and Evaluation Report (CAPER).

The regulatory amendments proposed by this rule would require States and local governments to consider broadband access and natural hazard resilience as part of their consolidated planning efforts. As provided in this proposed rule, States and local governments will need to consider the broadband needs of their low- and moderate-income residents, and the extent that available broadband Internet service providers and technology support these residents' broadband access needs. Where the required analysis demonstrates that such support is not currently available or is minimally available, States and local governments should consider ways to bring broadband Internet access to these residents, such as the extent to which broadband Internet service providers could be solicited to contribute to the broadband access needs of low-income residents, or how HUD funds could be used to narrow the digital divide for low- and moderate-income residents.

Further, where the required analysis demonstrates that low- and moderate-income communities are at risk of natural hazards, including those that may be exacerbated due to climate change, States and local governments should consider ways to incorporate hazard mitigation and resilience into their community planning and development goals, development codes, and standards, including how HUD funds could be used to mitigate natural hazard risks, including increasing risks due to climate change, with other Federal, State, local, philanthropic, and private sector funding. In this regard, President Obama's Administration is committed to giving communities across the United States the information and tools they need to plan for current and future climate change impacts, such as flooding and sea-level rise. In March 2014, the Administration launched the Climate Data Initiative, an effort to make vast Federal data resources on climate change risks and impacts openly available to the public.16 Following a major disaster designation, jurisdictions should consider reviewing and possibly revising the required resilience analysis. Such a review would assist jurisdictions in determining whether the disaster has introduced new or unanticipated hazard risks and consequences or unmet needs. Such a review would assist jurisdictions in deciding how best to use HUD funds to address new resilience-related and disaster recovery-related needs. HUD specifically invites public comments on the need for this type of post-disaster review and the possibility of requiring such a reevaluation at the final rule stage.

This proposed rule is one part of a broader set of Administration and HUD initiatives to narrow the digital divide and enhance climate resilience in low-income communities. Given the focus of the consolidated plan on housing needs, the assessments required by the proposed rule are limited to broadband access in housing and the vulnerability of housing to natural hazard risks. HUD, however, is cognizant of the critical non-housing needs of low-income communities. The adoption of broadband, which includes digital literacy by low-income residents is an equally critical component of closing the digital divide. Likewise, the evaluation of vulnerability to natural hazard risks on a broader, community-wide, level is an equally significant component of ensuring the resilience of low-income households. Under 24 CFR 91.215 (for local governments) and 24 CFR 92.315 (for States), jurisdictions must provide a description of priority non-housing community development needs eligible for assistance under HUD's community development programs. Given the importance of broadband adoption to communities and the goals of this rulemaking, HUD strongly encourages jurisdictions to consider implementing such actions in their non-housing community development efforts. Similarly, HUD strongly encourages jurisdictions to consider the use of block grant funds for actions that enhance the resilience of communities to natural hazard risks as a whole. To this end, jurisdictions should consider basing such actions on the FEMA-approved State, Tribal, and local hazard mitigation plans that may be used to conduct the housing-specific assessments required by the proposed rule.

In addition, HUD continues to encourage regional planning considerations, and maintains the requirement for local governments and States to, in their citizen participation plan, encourage the participation of local and regional institutions and businesses in the process of developing and implementing their consolidated plans.

The proposed rule would make the following changes to the Consolidated Plan regulations:

1. Consultation and citizen participation requirements (§§ 91.100.91.105. 91.110, 91.115). The current regulations require that local governments and States consult public and private agencies that provide assisted housing, health services, and social and fair housing services during preparation of the consolidated plan. Under the current regulations, local governments and States are also required, in their citizen participation plan, to encourage the participation of local and regional institutions and businesses in the process of developing and implementing their consolidated plans. The proposed rule would amend these requirements to specify that local governments and States must consult with public and private organizations, including broadband Internet service providers, and other organizations engaged in narrowing the digital divide. Further, the citizen participation plan must encourage their participation in implementing any components of the plan designed to narrow the digital divide for low-income residents. The proposed rule would also require local governments and States to consult with agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies in the process of developing the consolidated plan.

2. Contents of Consolidated Plan (§§ 91.5, 91.200, 9.200, 91.210, 91.300, 91.310). The proposed rule would make several changes to subparts C and D of HUD's regulations 24 CFR part 91, which establish the required contents of the consolidated plan. First, the proposed rule would require that, in describing their consultation efforts, local governments and States describe their consultations with public and private organizations, including broadband Internet service providers, other organizations engaged in narrowing the digital divide, agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies.

Second, the jurisdiction must also describe broadband needs in housing occupied by low- and moderate-income households based on an analysis of data for its low- and moderate-income neighborhoods in the National Broadband Map. The National Broadband Map Web site may be accessed at http://www.broadbandmap.gov/. Grantees may also use broadband availability data in the FCC Form 477 or other data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan. These needs include the need for broadband wiring and for connection to the broadband service in the household units, the need for increased competition by having more than one broadband Internet service provider serve the jurisdiction.

Third, the proposed rule would also require the jurisdiction to provide an assessment of natural hazard risk to low- and moderate-income residents based on an analysis of data, findings and methods in (1) the most recent National Climate Assessment, the Climate Resilience Toolkit, the Impact of Climate Change and Population Growth on the National Flood Insurance Program Through 2100, or the Community Resilience Planning Guide for Buildings and Infrastructure Systems prepared by the National Institute of Standards and Technology (NIST); (2) other climate risk-related data published by the Federal government or other State or local government climate risk related data, including FEMA-approved hazard mitigation plans which incorporate climate change; or (3) other climate risk data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan.

The National Climate Assessment, located at http://nca2014.globalchange.gov/, summarizes the impacts of climate change on the United States, now and in the future. A team of more than 300 experts guided by a 60-member Federal Advisory Committee produced the report, which was extensively reviewed by the public and experts, including federal agencies and a panel of the National Academy of Sciences.17

The Climate Resilience Toolkit, located at http://toolkit.climate.gov provides science-based tools, information, and expertise to help people manage their climate-related risks and opportunities, and improve their resilience to extreme events. The site is designed to serve interested citizens, communities, businesses, resource managers, planners, and policy leaders at all levels of government. The Climate Resilience Toolkit was developed over a six-month period in 2014 by a partnership of federal agencies and organizations led by National Oceanic and Atmospheric Administration.18

FEMA sponsored the report on Impact of Climate Change and Population Growth on the National Flood Insurance Program (available at http://www.acclimatise.uk.com/login/uploaded/resources/FEMA_NFIP_report.pdf) to fulfill a recommendation made by the Government Accountability Office to analyze the potential long-term implications of climate change and population growth on the National Flood Insurance Program. The study addresses riverine and coastal flood response to climate change, with projections at 20-year intervals through 2100, and found that the national average increase in floodprone areas by the year 2100 may approximate 40-45% for riverine areas and coastal areas.

The National Institute of Standards and Technology's (NIST) Community Resilience Planning Guide for Buildings and Infrastructure Systems, located at http://www.nist.gov/el/resilience, provides a six-step planning process that towns, cities, and counties can apply to better withstand hazard events and recovery more quickly. It provides a practical approach to help communities set priorities, allocate resources, and adopt codes and standards to reduce natural hazard and climate change risks by improving their resilience.

By undertaking these two analyses as part of their consolidated planning, HUD believes that jurisdictions become better informed of two emerging community needs in the world today: (1) The importance of broadband access, which opens up opportunity to a wide range of services, markets, jobs, educational, cultural and recreational opportunities; and (2) the importance of being cognizant and prepared for environmental and geographical conditions that may threaten the health and safety of communities. As noted earlier in this preamble, HUD is not mandating that jurisdictions take actions in either of these areas, but HUD believes that these are two areas that must be taken into consideration in a jurisdiction's planning for its expenditure of HUD funds.

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This rule was determined to be a “significant regulatory action” as defined in section 3(f) of Executive Order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Executive Order).

As noted in this preamble, the proposed regulatory amendments are designed to assist Consolidated Plan jurisdictions assess two emerging needs of communities in this changing world. Specifically, the proposed rule will direct States and local governments to consider broadband access and natural hazard resilience in their consolidated planning efforts by using readily available online data sources. Where access to broadband Internet service is either not currently available or only minimally available, jurisdictions will be required to consider ways to bring broadband Internet access to low- and moderate-income residents, including how HUD funds could be used to narrow the digital divide for these residents. Further, where low- and moderate-income communities are at risk of natural hazards, including those that may be exacerbated due to climate change, States and local governments must consider ways to incorporate hazard mitigation and resilience into their community planning and development goals, including the use of HUD funds.

The Consolidated Planning process benefits jurisdictions by establishing the framework for a community-wide dialogue to identify housing and community development needs for over a thousand communities across the Nation.19 Rather than a piecemeal approach to planning based on differing program requirements, the Consolidated Plan enables a holistic approach to the assessment of affordable housing and community development needs and market conditions. HUD established the Consolidated Plan, through a 1994 final rule, for the explicit purpose of linking disparate program planning requirements, thereby ensuring “that the needs and resources of . . . [jurisdictions] are included in a comprehensive planning effort to revitalize distressed neighborhoods and help low-income residents locally.” 20 The Consolidated Plan replaced a dozen separate planning mechanisms with a unified approach enabling communities to make data-driven, place-based investment decisions.21

New housing and community development needs have arisen in the 21 years since the Consolidated Plan was created. As noted in this preamble, two of the most pressing emerging needs facing communities in the twenty-first century are the digital divide and climate change:

• In a recent analysis, the President's Council of Economic Advisers (CEA) noted that the benefits of broadband Internet technology have not been evenly distributed.22 Research shows that there remain substantial disparities in both Internet use and the quality of access. This “digital divide” is concentrated among older, less educated, and less affluent populations, as well as in rural parts of the country that tend to have fewer choices and slower connections.23

• As President Obama has noted, climate change is happening now; it is not a distant threat. Its effects are already being felt in communities across the Nation. In some regions, droughts, wildfires, and floods are becoming more frequent and/or intense.24 Average temperatures across the United States have increased between 1.3 and 1.9 degrees Fahrenheit since recordkeeping began in 1895.25 Heat waves, hurricanes, and severe storms have all become more intense, and sea level rise is causing some communities to flood at high tides and threatening homes and critical infrastructure. Climate impacts have affected every region across the nation and inflicted large costs on the economy.26

Despite the benefits described above of a comprehensive approach to planning and the allocation of scarce Federal dollars, jurisdictions are not currently required to consider either the digital divide or climate change resilience in development of their Consolidated Plans. Jurisdictions may therefore place a low priority on assessing, and using Federal dollars to address, these critical issues than on other needs included in the Consolidated Plan. As a worst case scenario, it could mean that communities elect to defer considering these needs.

The direct benefits provided by the proposed rule are, therefore, to help ensure that Consolidated Plan jurisdictions consider broadband access and natural hazard resilience as part of their comprehensive assessment and planning efforts, including the most effective use of HUD grant funds. The CEA broadband analysis discussed above noted that closing the digital divide can increase productivity and open ladders of opportunity. Likewise, community investment in natural hazard resilience may help to insure security and quality of life against the rising environmental tolls associated with climate change.27

HUD does not anticipate that the costs of the revised consultation and reporting requirements will be substantial since the regulatory changes proposed by this proposed rule merely build upon similar existing requirements for other elements covered by the consolidated planning process rather than mandating completely new procedures. The economic costs of completing the Consolidated Plan are not significant. A complete Consolidated Plan that contains both a Strategic Plan and Annual Action Plan is submitted once every 3 to 5 years. An Annual Action Plan is submitted once a year. HUD data indicate that the cost of preparing the Strategic Plan for a locality is $5,236, and for a State is $14,382. The cost of preparing the Annual Action Plan is $1,904 for a locality and $6,392 for each State. While these are not trivial amounts, they are not substantial when considered in proportion to HUD grant funding (for example, the average CDBG grant to entitlement communities in FY 2012 was approximately $1.7 million).28

HUD does not anticipate the proposed regulatory changes will add much, if anything, to these costs. As noted above, the required assessments will be based on data that are already readily available on the Internet. Therefore, jurisdictions will not have to incur the expense and administrative burdens associated with collecting data. Moreover, the proposed rule does not mandate that actions be taken to address broadband needs or climate change needs. Consolidated plan jurisdictions are in the best position to decide how to expend their HUD funds. However, HUD believes that the additional analyses required by this proposed rule may highlight areas where expenditure of funds would assist in opening up economic opportunities through increased broadband access or mitigate the impact of possible natural hazard risks and climate change impacts. HUD leaves it to jurisdictions to consider any appropriate methods to promote broadband access or protect against the adverse impacts of climate change, taking into account the other needs of their communities, and available funding, as identified through the consolidated planning process.

Accordingly, HUD believes that the benefits of enhancing the ability of State and local government to comprehensively plan for housing and community development needs outweigh the minimal costs that may be associated with the revised Consolidated Plan requirements. The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulation Division at 202-402-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at 800-877-8339.

The information collection requirements contained in this rule have been submitted to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

The burden of the information collections in this rule is estimated as follows:

In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting from members of the public and affected agencies comments on the following concerning this collection of information:

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

(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;

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

(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.

Interested persons are invited to submit comments regarding the information collection requirements in this rule. Under the provisions of 5 CFR part 1320, OMB is required to make a decision concerning this collection of information between 30 and 60 days after the publication date. Therefore, a comment on the information collection requirements is best assured of having its full effect if OMB receives the comment within 30 days of the publication. This time frame does not affect the deadline for comments to the agency on the proposed rule, however. Comments must refer to the proposal by name and docket number (5891-P-01) and must be sent to:

Interested persons may submit comments regarding the information collection requirements electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit a comment, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

As noted above in this preamble, the proposed regulatory amendment will impose minimal, if any, economic burdens on HUD grantees, irrespective of their size. The proposed rule will amend the Consolidated Plan regulations to require that States and local governments consider (1) broadband Internet service access for low- and moderate-income households to; and (2) the risk of potential natural hazards, including those that may be exacerbated due to climate change, to low- and moderate-income residents in their jurisdictions. The regulatory changes build upon their existing consolidated planning process rather than mandating completely new procedures. As discussed above, the economic costs of preparing the Consolidated Plan are not significant, and it is unlikely that the proposed changes will increase those costs since the required assessments will be mostly based on data that has already been compiled and readily available on the Internet. Jurisdictions will, therefore, not have to incur the expense and administrative burdens associated with collecting and analyzing data.

Moreover, the proposed rule does not mandate that any actions be taken in response to the required assessments. Where access to broadband Internet service is not currently available or is minimally available, States and local governments must consider ways to bring broadband Internet access to low- and moderate-income residents, including how HUD funds could be used to narrow the digital divide for these residents. Further, where low- and moderate-income communities are at risk of natural hazards, including those that may be exacerbated due to climate change, States and local governments must consider ways to incorporate hazard mitigation and resilience into their community planning and development goals, including the use of HUD funds. However, jurisdictions retain the discretion to consider the most appropriate methods to address their assessments, taking into account other needs identified as part of the consolidated planning process as well as financial and other resource constraints. This proposed rule therefore, which only requires consideration of the broadband and natural hazards resilience needs of low-income communities, has a minimal cost impact on all grantees subject to the Consolidated Planning process, whether large or small, and will not have a significant economic impact on substantial number of small entities.

Notwithstanding HUD's determination that this proposed rule will not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives, as described in this preamble.

This proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern, or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule imposes either substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule would not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.

For the reasons discussed in the preamble, HUD proposes to amend part 91 as follows:

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

On October 17, 2006, the EPA issued its final action to revise the PM2.5 NAAQS to establish revised 24-hour standards (71 FR 61144). In that action, we promulgated identical revised primary and secondary PM2.5 standards designed to protect public health and welfare that specified a 24-hour PM2.5 average concentration of 35 μg/m3. Specifically, the 2006 standards require that the 3-year average of the annual 98th percentile concentration may not exceed 35 μg/m3.

On November 13, 2009, the EPA issued a final rule designating all areas throughout the country for the 2006 24-hour PM2.5 NAAQS, effective December 14, 2009 (74 FR 58688). In that action, the EPA designated Oakridge, Oregon and a small surrounding area as a nonattainment area (Oakridge NAA) based on monitor values at the Willamette Activity Center in Oakridge. As a result of this nonattainment area designation, Oregon is required to prepare and submit to the EPA a State Implementation Plan (SIP) revision to meet attainment plan requirements and to bring the Oakridge NAA into attainment for the 2006 24-hour PM2.5 NAAQS. The State submitted an attainment plan submission for the Oakridge NAA to the EPA by letter dated December 12, 2012 (2012 Oakridge Plan).

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 only pursuant to the provisions of subpart 1 of the Act, rather than the particulate matter specific provisions of subpart 4 of Part D of Title I (subpart 4). The Court did not vacate the 2007 PM2.5 Implementation Rule for the 1997 PM2.5 NAAQS, but remanded it to the EPA with instructions to promulgate a new implementation rule for the PM2.5 NAAQS in accordance with the requirements of both subpart 1 and subpart 4. On June 6, 2013, consistent with the Court's remand decision, the EPA withdrew its March 2012 Implementation Guidance recommending that states rely on the 2007 PM2.5 Implementation Rule for development of attainment plans for the 2006 24-hour PM2.5 NAAQS. Thus, the EPA withdrew the guidance it initially provided to states for meeting attainment plan requirements for purposes of areas designated nonattainment for the 2006 24-hour PM2.5 NAAQS, such as the Oakridge NAA.

On June 2, 2014, in response to the NRDC decision that it implement the PM2.5 NAAQS pursuant to subpart 4, the EPA promulgated the “PM2.5 Subpart 4 Nonattainment Classification and Deadline Rule” (79 FR 31566). In that action, the EPA classified all areas currently designated nonattainment for both the 1997 and 2006 PM2.5 NAAQS as “Moderate” nonattainment areas. That rule also provided guidance to states on how to meet the subpart 4 requirements and set a deadline of December 31, 2014 for states to submit any revisions to previously submitted attainment plan submissions, as necessary to meet subpart 4 requirements. Thus, the EPA classified the Oakridge NAA as a Moderate nonattainment area for the 2006 24-hour PM2.5 NAAQS and provided an opportunity for the state to revise the 2012 Oakridge Plan.

A Moderate PM2.5 nonattainment area's ambient air quality status is determined in accordance with Appendix N of 40 CFR part 50. To show attainment of the current 24-hour and annual standards for PM2.5, data from the most recent three consecutive years prior to the area's attainment date must show that PM2.5 concentrations over the prior three year period are at or below the levels of the standards. A complete year of air quality data, as described in part 50, Appendix N, is comprised of all four calendar quarters with each quarter containing data from at least 75 percent of the scheduled sampling days.

The EPA begins processing and analyzing data related to the attainment of the PM2.5 NAAQS after the applicable attainment date for the affected areas. Current EPA regulations, under 40 CFR part 58, set the deadline for the state to certify its air quality data in the Air Quality System (AQS) database by May 1 of the following year. Under section 179(c), the EPA is required to determine as expeditiously as practicable, but not later than 6 months after the applicable attainment date, whether a nonattainment area has attained the relevant NAAQS. In the case of a state with an area that qualifies for an extension of the attainment date under section 188(d), however, the EPA has discretion instead to extend the attainment date for an area if the state requests the extension and meets the statutory criteria for such an extension.

CAA section 188(d) allows states to apply for, and the EPA the discretion to grant, a 1-year extension to the statutory attainment date for Moderate PM10 (particulate matter with an aerodynamic diameter of a nominal 10 micrometers) nonattainment areas. Section 188(d) establishes two criteria that the EPA must consider to grant a requested attainment date extension: (1) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan, and (2) no more than one exceedance of the 24-hour NAAQS level for PM10 has occurred in the area in the year preceding the extension year and the annual mean concentration of PM10 in the area for such year is less than or equal to the level of the annual standard. Section 188(d) also provides for the possibility that the EPA may grant a second 1-year extension if the Moderate area meets the specified criteria. No more than two 1-year attainment date extensions may be granted for a single nonattainment area.

The provisions of section 188(d) thus allow a state an opportunity to demonstrate that a Moderate area should continue to be classified as Moderate and not reclassified to Serious, even if the area has monitor data exceeding the level of the applicable PM2.5 NAAQS in the calendar year preceding the otherwise applicable attainment date. Although section 188(d) provides the criteria for such an extension, the EPA believes that there are some ambiguities in the statutory language that warrant interpretation. Thus, in this action the EPA is proposing to interpret the requirements of section 188(d) in evaluating the extension request from the State.

The most significant issue that the EPA must address is how to interpret the air quality requirement of section 188(d)(2) in light of the fact that the statutory language refers to PM10 rather than to PM2.5, and the fact that the air quality requirement is phrased as “no more than one exceedance” of the 24-hour PM10 NAAQS in the year prior to the otherwise applicable attainment date. Based upon the NRDC decision, there can be no doubt that the EPA must interpret the references to PM10 in section 188(d)(2) to encompass PM2.5. Given that fact, however, the EPA cannot read the “no more than one exceedance” requirement to apply literally to the PM2.5 NAAQS because of the distinct differences in the form of the PM10 NAAQS and the PM2.5 NAAQS.

The statutory language addressing PM10 in CAA section 188 explicitly sets ambient air quality conditions for an attainment date extension in terms that relate factually to the 24-hour PM10 NAAQS that was in effect at the time of the 1990 Amendments of the CAA, which has a statistical form that is substantially different from the 24-hour PM2.5 NAAQS. The requirement in 188(d)(2) states that an extension may be granted if “no more than one exceedance of the 24-hour national ambient air quality standard level for PM10 has occurred in the area in the year preceding the Extension Year, and the annual mean concentration of PM10 in the area for such year is less than or equal to the standard level.” Given the form of the 24-hour PM10 NAAQS, the requirement that an area have no more than one “exceedance” meant that there could be no more than one monitored value over the numerical level of the NAAQS. Such an approach is logical when the form of the 24-hour NAAQS allows one exceedance per year, on average, over a three year period. By having no more than one exceedance, the state was meeting the NAAQS in that last year, even if it did not yet meet the requirements for attainment over the requisite three year period. In other words, the state would be close to attaining the NAAQS, thus making one year extension a potentially appropriate way provide additional time for a state to come into attainment without the need for a reclassification to Serious and additional SIP planning efforts. By contrast, the form of the 2006 24-hour PM2.5 NAAQS is a 98th percentile-based form and not a “one expected exceedance” form as is the PM10 NAAQS. Under the form of the 2006 24-hour PM2.5 NAAQS, there can be a number of exceedances of the numerical level of the NAAQS that are permitted and are not considered a violation of the NAAQS. Thus, under the form of the 2006 24-hour PM2.5 NAAQS an area could be close to attaining the NAAQS in the year prior to the attainment date, even if there were one or more dates with monitored “exceedances.” Therefore the statutory language requires some interpretation with regard to how it applies to the PM2.5 NAAQS.

For this action, the EPA is proposing to interpret section 188(d) for purposes of the 2006 PM2.5 NAAQS in a way that is equivalent to the “no more than one exceedance” condition that Congress imposed for purposes of the PM10 NAAQS. Accordingly, the EPA interprets the requirement to demonstrate that the area had “no more than one exceedance” of the level of the 24-hour PM2.5 NAAQS to mean that the state must demonstrate that the area had “clean data” in the year proceeding the extension year. Thus, a state seeking an attainment date extension for a Moderate nonattainment area for a 24-hour PM2.5 NAAQS would be required to demonstrate that the area had monitor data showing no monitored violations of the NAAQS in light of the statistical form of that particular standard (i.e., for the 2006 24-hour PM2.5 NAAQS, the 98th percentile value did not exceed 35 μg/m3) in the calendar year prior to the applicable attainment date for the area.

An additional issue that the EPA must address concerning the air quality requirement of section 188(d)(2) is whether a state seeking an extension for purposes of a 24-hour PM2.5 NAAQS only, must nevertheless meet the portion of section 188(d)(2) that refers to the annual ambient air quality of such an area. The EPA notes that statutory language of section 188(d) does provide that a state seeking an extension of a Moderate area attainment date must have not more than one exceedance of the 24-hour NAAQS “and” meet an annual ambient level requirement as well. The EPA believes that reading this provision to require a state to meet both tests, even when the state has an area that is designated nonattainment only for the 24-hour PM2.5 NAAQS and is seeking an extension of only the attainment date for such NAAQS, is not a logical interpretation of the provision. Such a reading would be logical were the area at issue designated nonattainment for both the 24-hour NAAQS and the annual NAAQS, but not if designated nonattainment only for one of those standards.

The EPA is proposing to interpret section 188(d) for the 2006 24-hour PM2.5 NAAQS to require a state only to establish that it meets the air quality requirement with respect to the 24-hour NAAQS when seeking an extension of the attainment date only for the 24-hour PM2.5 NAAQS. The EPA believes this interpretation of section 188(d)(2) is appropriate for two main reasons. First, while most PM10 nonattainment areas were designated nonattainment for either just the 24-hour PM10 NAAQS or for both the 24-hour and annual PM10 NAAQS, the majority of current PM2.5 nonattainment areas are, in contrast, designated for either the 24-hour or the annual PM2.5 NAAQS, and should arguably only need to demonstrate clean data for the NAAQS for which the area is designated nonattainment. For those few PM2.5 nonattainment areas designated for both 24-hour and annual PM2.5 NAAQS, the EPA believes it also is appropriate that a state must only demonstrate clean data for the specific NAAQS for which the state is seeking an attainment date extension because such an approach is consistent with the statute's overall approach to designating nonattainment areas and implementing control strategies for each separate PM2.5 NAAQS. Second, if an area is designated as nonattainment for both the 24-hour and annual PM2.5 standards and receives an extension for one standard while still working toward a later attainment date for the other standard, the EPA maintains that public health protection would not be delayed because the state would still be subject to the ongoing mandate to adopt and implement measures to ensure expeditious attainment of the other standard.

Section 188(d)(1) of the Act also provides that the state must have “. . . complied with all requirements and commitments pertaining to the area in the applicable implementation plan.” As with section 188(d)(2), the EPA believes that there are some ambiguities in the statutory language that warrant interpretation in order to evaluate the State's extension request. The EPA proposes to interpret this provision to mean that the state has submitted a SIP submission to address the attainment plan requirements for the applicable PM2.5 NAAQS and that the state has implemented the control measures in the SIP submission. This proposed interpretation is based on the plain language of section 188(d) that does not explicitly require that the state comply with all requirements applicable to the area in the CAA, but merely requires that the state comply with all requirements in the applicable SIP. In other words, the EPA believes that section 188(d)(1) should be interpreted to mean that so long as the state has submitted the necessary attainment plan for the area for the applicable PM2.5 NAAQS and is implementing the control measures in the submission, the fact that the EPA has not yet acted on such submission to make it an approved part of the applicable SIP should not be a barrier to the state obtaining an extension of the attainment date under section 188(d)(1).

Under this proposed interpretation, therefore, the state has to demonstrate that it has submitted an attainment plan to the EPA for the relevant PM2.5 NAAQS and that the state is implementing control measures in that SIP submission. Because the extension at issue under section 188(d) is an extension of a Moderate area attainment date, it follows that the control measures in the attainment plan submission would be those measures that the State intended to meet the RACM and RACT requirements. The EPA interprets the requirement of section 188(d)(1) that the state have complied with the “requirements and commitments” of the applicable implementation plan to mean that the state must be implementing the control measures in the submitted attainment plan. The state must have adopted and submitted the attainment plan SIP revision to the EPA, but the state can qualify for the extension even if the EPA has not yet taken action on the SIP submission.

In sum, in order for the EPA to make a decision on whether to grant a 1-year attainment date extension, the state is required to submit sufficient information to demonstrate that it has both complied with all requirements and commitments in the applicable implementation plan, and that it had “clean” air quality data in the attainment year, as explained above. Any decision made by the EPA to extend the attainment date for an area would be based on facts specific to the nonattainment area at issue.

Section 188(d) does not specify the process by which the EPA should evaluate and act upon requests from states for an extension of the Moderate PM2.5 area attainment date. However, the EPA believes that an attainment date extension should only be granted after the EPA provides notice in the Federal Register and an opportunity for the public to comment. Requiring notice-and-comment rulemaking allows for appropriate evaluation of the relevant criteria and facts in order to assure that the extension is granted or denied after full evaluation. This process also is consistent with past practice by the EPA in granting attainment date extensions for PM2.5 areas. If this proposal is finalized, then the nonattainment area would remain classified as Moderate for the 2006 PM2.5 NAAQS throughout the 2016 calendar year. After the December 31, 2016 attainment date, the EPA will evaluate air quality data and other relevant information to determine whether the area has attained the 2006 PM2.5 NAAQS by the December 31, 2016 attainment date.

On December 14, 2015, the State of Oregon submitted a request to extend the Moderate area attainment date for the Oakridge NAA for the 2006 24-hour PM2.5 NAAQS from December 31, 2015 to December 31, 2016. This request contained documentation intended to demonstrate that the State meets the criteria for a 1-year attainment date extension for this area pursuant to CAA section 188(d). On February 11, 2016, the Lane Regional Air Protection Agency (LRAPA) submitted an Oakridge Extension Request Follow-up, that provides the final quality-assured air quality data for 2015 and documentation of efforts to implement the 2012 Oakridge plan during the 2015-16 winter. The EPA is evaluating this request in light of its statutory interpretations of section 188(d) with respect to the 2006 24-hour PM2.5 NAAQS.

The LRAPA implements the CAA on behalf of the State in the Oakridge NAA. The LRAPA monitors ambient PM2.5 at one monitoring site in the Oakridge NAA at the Willamette Activity Center, the area of expected highest concentrations. The air monitor began operation in 1989 and has monitored continuously to the present. The monitor is a Federal Reference Method sampler, sampling every third day. The EPA has previously approved the State's monitoring network including the PM2.5 network for Oakridge. The EPA verified in 2010 and 2013 that the PM2.5 sample collection and filter handling procedures met Federal requirements for quality assurance and control. The LRAPA reviews and certifies all data from this monitor for compliance with these procedures and submits the data to the ODEQ. The ODEQ then submits the certified data to the EPA AQS data system.

The ODEQ submitted complete certified PM2.5 monitor data for calendar year 2015 into the EPA AQS data system before February 28, 2016. Likewise, the state has submitted certified data for calendar years 2013 and 2014 to the EPA AQS data system. Thus, the EPA AQS data system contains sufficient data for the EPA to evaluate whether the Oakridge NAA attained the 2006 24-hour PM2.5 NAAQS by the statutory attainment date of December 31, 2015, but also the requisite data to determine whether the Oakridge NAA was meeting the NAAQS in calendar year 2015 in order to qualify for a one year extension under section 188(d).

As explained above, the EPA is interpreting the air quality criterion of section 188(d)(2) in order to reflect the different form of the NAAQS for the PM10 NAAQS in effect at the time of the 1990 Amendments to the CAA versus the form of the 2006 PM2.5 NAAQS. Under this proposed interpretation, a state could qualify for a one year extension of the Moderate area attainment date if the monitor data reflects that the area has ambient air quality that is at or below the level of the relevant PM2.5 NAAQS for the calendar year preceding the otherwise applicable attainment date, i.e., for the calendar year prior to the requested extension year. The three year average of the annual 98th percentile 24-hour PM2.5 values for 2013-2015 in the Oakridge NAA is 37 μg/m3 and thus the EPA cannot find that the area has attained the 24-hour standards for this 3-year period. However, the 98th percentile value for the single year of 2015 in this area is 28.9 μg/m3, which is below the level of the 24-hour PM2.5 NAAQS of 35 μg/m3.

Because the Oakridge NAA is designated nonattainment only for the 2006 24-hour PM2.5 NAAQS, the State only seeks a one year extension of the attainment date with respect to this NAAQS. As explained above, the EPA is interpreting the air quality criterion of section 188(d) to apply only with respect to the specific NAAQS for which a state seeks an extension. Thus, for a state seeking an extension of an attainment date for an area designated nonattainment only for the 24-hour NAAQS, section 188(d) does not require the EPA to evaluate the ambient air quality in the area with respect to the annual PM2.5 NAAQS as well. Under this proposed approach, the monitored annual ambient level of PM2.5 in the Oakridge NAA is not germane to the EPA's evaluation the extension request. However, the EPA notes that the annual design value for the Oakridge monitor is 9.2 μg/m3 for the 2012-2014 period and the preliminary design value is 9.6 μg/m3 for the 2013-2015 period. Thus, even if the annual ambient monitored PM2.5 level were relevant to this extension request, the monitored PM2.5 level in the Oakridge NAA is well below the 15 μg/m3 level of the 2006 annual PM2.5 NAAQS, as well as the 12 μg/m3 level of the 2012 PM2.5 NAAQS.

For these reasons, the EPA is proposing to find that the State meets the ambient air quality criterion for a 1-year attainment date extension for the Oakridge NAA pursuant to CAA section 188(d)(2).

On December 12, 2012, the Oregon Department of Environmental Quality (ODEQ) submitted a SIP revision to address attainment plan requirements for the 2006 PM2.5 NAAQS for the Oakridge NAA (2012 Oakridge Plan). The State intended this SIP submission to meet the statutory requirements for an attainment plan for purposes of the PM2.5 NAAQS based upon the statutory requirements and the EPA guidance for those requirements available at that time. Although the EPA anticipates that the state may elect to make an additional SIP submission to revise and update the 2012 Oakridge Plan, to date the State has not done so.

The State developed the 2012 Oakridge Plan in order to address the ambient PM2.5 problem in this area through a control strategy designed to focus on the dominant sources of emissions in the area. The State has concluded that the violations of the 2006 24-hour PM2.5 NAAQS in the Oakridge NAA are primarily due to emissions of direct PM2.5 from residential wood combustion (RWC) from winter time home heating. Oakridge is a small rural community located in a valley of the western slope of the Cascade mountain range. Therefore, the State has ascertained that reducing emissions of PM2.5 to prevent violations of the PM2.5 NAAQS rests primarily on RWC curtailment.

The 2012 Oakridge Plan included new control measures to address RWC emissions by requiring the curtailment of RWC during times when elevated levels of PM2.5 are predicted or occur. The RWC curtailment control measure was adopted, and is enforceable as a City of Oakridge ordinance. This ordinance, in addition to Oregon's state-wide Heat Smart program, also requires the replacement of old uncertified wood stoves with EPA certified stoves when houses containing uncertified wood stoves are sold, and requires the installation of EPA certified wood stoves in new construction. The State provided documentation in the attainment date extension request to demonstrate the implementation of the Oakridge RWC curtailment ordinance.

Subsequent to the submission of the 2012 Oakridge Plan submission, the City of Oakridge enacted revisions on November 15, 2012 and again on October 15, 2015 to strengthen the RWC ordinance which included lowering the threshold for triggering a curtailment or “burn ban,” imposing a more stringent opacity limit, and requiring that only dry, seasoned wood be burned for RWC. The State plans to submit a SIP revision to the EPA in December 2016 that will include the most recent RWC ordinance revisions. The State and LRAPA provided evidence of the adoption and implementation of the new revised ordinance in support of the extension request. Although the State has not yet submitted the ordinance revisions to the EPA for evaluation, and thus the revisions are not yet part of the applicable implementation plan, the Agency nevertheless considers these revisions an important part of the State's strategy for attainment of the 2006 PM2.5 NAAQS in the Oakridge NAA.

As explained above, the EPA is proposing to interpret the compliance with applicable implementation plan criterion of section 188(d)(1) to require that a state have made a submission intended to meet the attainment plan requirements for the 2006 PM2.5 NAAQS and that the state be implementing the control measures in that attainment plan submission. Under this proposed interpretation, a state could qualify for a 1-year extension of the Moderate area attainment date if the state has submitted an attainment plan for the relevant PM2.5 NAAQS and demonstrates that it is actively implementing the commitments and requirements of the attainment plan at the time of attainment date extension request.

The State developed and submitted the 2012 Oakridge Plan to the EPA for evaluation. The State also submitted information to establish that the control measures in the 2012 Oakridge Plan are in effect and are being implemented by the LRAPA at this time as part of the attainment date extension request. The EPA has reviewed the control measures of the submitted 2012 Oakridge Plan and the documentation of implementation submitted as part of the extension request. The docket provides documentation of this including the official extension request that describes supplemental strategies currently underway, an expanded city ordinance that enhances controls designed to reduce emissions from residential home heating, and local strategies and efforts to reduce emissions. Based upon this information, the EPA believes that the State and the LRAPA are complying with the requirements and commitments of the applicable implementation plan, as contemplated by section 188(d)(1).

For these reasons, the EPA is proposing to find that the State meets the compliance with the applicable implementation plan criterion for a 1-year attainment date extension for the Oakridge NAA pursuant to CAA section 188(d)(1).

The EPA is proposing to find that the State has met the criteria for receiving a 1-year extension to the Moderate area attainment date for the 2006 PM2.5 NAAQS for the Oakridge NAA as provided in section 188(d) of the Act. The State is implementing the requirements and commitments in the applicable attainment plan for the PM2.5 NAAQS in the area, and the 98th percentile 24-hour PM2.5 air quality value for 2015 is below 35 μg/m3. Accordingly, the State has established that it meets the criteria of section 188(d) as the EPA is proposing to interpret those requirements for purposes of the 2006 PM2.5 NAAQS. The EPA is therefore proposing to exercise the discretion granted to the Administrator by section 188(d) of the CAA to extend the Moderate area attainment date for the Oakridge NAA from December 31, 2015 to December 31, 2016.

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

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

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

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

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

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

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

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

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

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

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

The Clean Air Act (CAA or “Act”) requires the EPA to establish National Ambient Air Quality Standards (NAAQS or “standards”) for certain widespread pollutants, such as ozone, that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare.1 In 1979, we promulgated an ozone NAAQS of 0.12 parts per million (ppm), one-hour average (“1-hour ozone standard”).2

An area is considered to have attained the 1-hour ozone standard if there are no violations of the standard, as determined in accordance with the regulation codified at 40 CFR 50.9, based on three consecutive calendar years of complete, quality-assured and certified monitoring data. A violation occurs when the ambient ozone air quality monitoring data show greater than one (1.0) “expected number” of exceedances per year at any site in the area, when averaged over three consecutive calendar years. An “expected number” of exceedances is a statistical term that refers to an arithmetic average. An “expected number” of exceedances may be equivalent to the number of observed exceedances plus an increment that accounts for incomplete sampling.3 An exceedance occurs when the maximum hourly ozone concentration during any day exceeds 0.124 ppm.4

The Act, as amended in 1990, required the EPA to designate as nonattainment any ozone areas that were still designated nonattainment under the 1977 Act Amendments, and any other areas violating the 1-hour ozone standard, generally based on air quality monitoring data from the 1987 through 1989 period.5 The 1990 CAA Amendments further classified these areas, based on the severity of their nonattainment problem, as Marginal, Moderate, Serious, Severe, or Extreme.

The control requirements and date by which attainment of the one-hour ozone standard was to be achieved varied with an area's classification. Marginal areas were subject to the fewest mandated control requirements and had the earliest attainment date, November 15, 1993, while Severe and Extreme areas were subject to more stringent planning requirements and were provided more time to attain the standard.

The San Joaquin Valley (SJV or “Valley”) covers approximately 23,000 square miles and includes all of Fresno, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare counties, as well as the western half of Kern County.6 The Valley is home to approximately four million residents. On November 6, 1991, the EPA classified the San Joaquin Valley as “Serious” nonattainment for the 1-hour ozone standard with an applicable attainment date of November 15, 1999.7 The Valley was later reclassified by operation of law as “Severe” based on our determination that the Valley had failed to attain the standard by the 1999 deadline.8 Later, the EPA approved a request by the State of California to reclassify the Valley as “Extreme” for the 1-hour ozone standard, with an applicable attainment date of November 15, 2010.9

In 1997, the EPA promulgated an 8-hour ozone standard of 0.08 ppm (“1997 8-hour ozone standard”), to replace the 1-hour ozone standard.10 Although the 1-hour ozone standard was revoked in 2005, we continue to determine whether areas attain, or fail to attain, the 1-hour ozone standard. This is because, under the EPA's regulations governing the transition from implementation of the revoked ozone standard to implementation of the replacement ozone standard, “anti-backsliding” provisions require the continued applicability of certain 1-hour ozone control requirements in areas, such as the San Joaquin Valley, that are designated as nonattainment for the 1997 8-hour ozone standard and the connection between some of those requirements and attainment of the 1-hour ozone standard.11 In 2008, we tightened the 8-hour ozone standard (“2008 8-hour ozone standard”),12 and in 2015, we revoked the 1997 8-hour ozone standard, but the principles of anti-backsliding continue to apply to both revoked ozone standards.13

In this action, we are proposing to determine that the San Joaquin Valley has attained the 1-hour ozone standard. Under 40 CFR 50.1118, if this action is finalized as proposed and to the extent not already fulfilled, the requirement for this area to submit an attainment demonstration and associated planning requirements related to attainment of the 1-hour ozone standard, including reasonably available control measures, reasonable further progress plans, contingency measures for failure to attain, or make reasonable progress, shall be suspended until such time as the area is redesignated as attainment for the current ozone NAAQS or a redesignation substitute for the 1-hour ozone standard is approved, at which time the requirements no longer apply.14 If, however, prior to such redesignation or approval of such redesignation substitute, the EPA determines that the area has violated the 1-hour ozone NAAQS, then the area is again required to submit such attainment-related plans.

Over the decades since the 1990 CAA Amendments, despite high rates of growth in population and regional vehicle miles traveled (VMT), 1-hour ozone concentrations in San Joaquin Valley have decreased, primarily due to emissions reductions from mobile source and consumer product control measures adopted by the California Air Resources Board (CARB) and from stationary source control measures adopted by the San Joaquin Valley Air Pollution Control District (SJVAPCD or “District”). For instance, despite regional growth, 1-hour ozone exceedance-days within the Valley (i.e., number of days in a year during which the 0.12 ppm standard was violated at a (i.e., at least one) monitoring site) decreased from 45 in 1990 to 7 in 2010.15 Nonetheless, upon review of the ambient data for the three years preceding the November 15, 2010 attainment date (i.e., 2008-2010), we determined that the San Joaquin Valley failed to attain the 1-hour ozone standard by that date.16

Since then, the trend towards fewer 1-hour ozone exceedance-days has continued, and on February 11, 2016, CARB requested that the EPA determine that the San Joaquin Valley has attained the 1-hour ozone standard (also referred to as a “clean data determination”).17 As part of its request for a clean data determination for the 1-hour ozone standard for the San Joaquin Valley, CARB submitted its own staff report and appendices, a letter dated July 13, 2015 from the District to the EPA and CARB requesting a clean data determination, the District's staff report to support its clean data determination request, and an ozone study final report prepared for the District.18

In addition to the request for a clean data determination, the District provided documentation in its staff report intended to support a finding that attainment of the 1-hour ozone standard is due to permanent and enforceable emission reductions. In our final implementation rule for the 2008 ozone standard (80 FR 12264, March 6, 2015), we established a mechanism, referred to as a “redesignation substitute,” through which an area may shift to contingency status those requirements, such as penalty fee program requirements under CAA section 185, to which an area had remained subject under the EPA's anti-backsliding regulations governing the transition from revoked ozone standards (such as the 1-hour ozone standard) to current ozone standards. To invoke this mechanism, a state must submit a demonstration that the area has attained the revoked ozone NAAQS due to permanent and enforceable emission reductions and that the area will maintain the revoked NAAQS for 10 years from the date of the EPA's approval of this showing.19 In this action, we are not taking action on the District's demonstration that attainment of the 1-hour ozone standard in the San Joaquin Valley is due to permanent and enforceable emission reductions because it is not relevant for the purposes of a clean data determination, but we will consider the District's demonstration in a separate rulemaking if and when it is supplemented with the 10-year maintenance demonstration element also needed to invoke the redesignation substitute mechanism in 40 CFR 51.1105(b).

A determination of whether an area's air quality meets the 1-hour ozone NAAQS is generally based upon three years of complete, quality-assured and certified air quality monitoring data gathered at established State and Local Air Monitoring Stations (SLAMS) in the nonattainment area and entered into the EPA's Air Quality System (AQS) database.20 A determination of whether an area meets the 1-hour ozone standard relies upon a review of the daily maximum ozone levels. Under 40 CFR part 50, appendix H, a daily maximum ozone level is defined to be the highest hourly ozone value recorded for the day. This daily maximum value is considered valid if 75 percent of the hours from 9:01 a.m. to 9:00 p.m. were measured or if the highest hour is greater than the level of the standard. A missing daily maximum ozone value may be assumed to be less than the level of the standard if the valid daily maxima on both the preceding day and the following day do not exceed 75 percent of the NAAQS. Data from air monitors operated by state or local agencies in compliance with the EPA monitoring requirements must be submitted to the AQS database. Monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, the EPA relies primarily on data in its AQS database when determining the attainment status of an area.21

When the EPA determined that the San Joaquin Valley had failed to attain the November 15, 2010 attainment date, the Agency made its determination based on 2008 to 2010 data from a network of 22 ozone monitoring sites.22 By 2015, the number of ozone monitoring sites in San Joaquin Valley had increased to 27, 24 of which are designated as regulatory and from which data may be compared to the NAAQS.23 All of these sites monitor ozone concentrations on a continuous basis using ultraviolet absorption monitors.

CARB or SJVAPCD operates 23 of the monitoring sites: Seven within Kern County, six within Fresno County, two within Madera, San Joaquin, Stanislaus, and Tulare counties, and one within Kings and Merced counties.24 CARB annually certifies that the data the agency submits to AQS are quality-assured, including data collected by CARB at monitoring sites in San Joaquin Valley.25 SJVAPCD does the same for monitors operated by the District.26 In addition, the National Park Service (NPS) operates two ozone monitoring sites in Sequoia National Park in Tulare County; the Tachi-Yokut Tribe operates a monitoring site at the Santa Rosa Rancheria in Kings County; and the Chukchansi Indians of California operate a monitoring site at the Picayune Rancheria in Madera County.

The Sequoia National Park—Ash Mountain (AQS ID 06-107-0009) NPS monitoring site is designated as regulatory and comparable to the NAAQS. NPS annually certifies that the data it submits to AQS are quality-assured.27 One NPS site within Tulare County, Sequoia National Park—Lower Kaweah (AQS ID 06-107-0006), is designated as non-regulatory and not comparable to the NAAQS. The EPA notes that the two monitoring sites located in Indian country, Santa Rosa Rancheria (AQS ID 06-031-0500) and Picayune Rancheria (AQS ID 06-019-0500), are designated as non-regulatory and not comparable to the NAAQS.

Table 1 summarizes the expected 1-hour ozone exceedances, per year and as an average over the 2012-2014 period, at the regulatory monitoring sites in the San Joaquin Valley. Generally, the highest ozone concentrations in the San Joaquin Valley have occurred in the central and southern portions of the nonattainment area, but in recent years, the highest ozone concentrations have occurred in the central portion of the valley (i.e., within Fresno County). As shown in Table 1, the highest three-year average of expected exceedances at any site in the San Joaquin Valley for 2012-2014 is 0.7 at Fresno—Sierra Skypark in Fresno County. The calculated exceedance rate of 0.7 represents attainment of the 1-hour ozone NAAQS (a three-year average of expected exceedances less than or equal to 1). Thus, taking into account the extent and reliability of the applicable ozone monitoring network, and the data collected and summarized in Table 1, we propose to determine that the San Joaquin Valley has attained the 1-hour ozone NAAQS (as defined in 40 CFR part 50, appendix H). Preliminary 2015 data have not been certified but are consistent with the continued attainment of the 1-hour ozone NAAQS in the San Joaquin Valley.

As noted above, a “complete” data set for determining attainment of the ozone standard is generally one that includes three years of data with an average percent of days with valid monitoring data greater than 90 percent with no single year less than 75 percent. Based on these criteria, the data summarized in Table 1 from all of the sites meet the criteria over the 2012 to 2014 period except for the Bakersfield—Municipal Airport site (AQS ID: 06-029-2012). The Bakersfield—Municipal Airport site began operation on July 1, 2012 and although completeness was greater than 90 percent for the period of the year it was operating, total completeness for the entire year, including the period prior to establishment of the monitor, was 48 percent. Completeness was greater than 90 percent at the Bakersfield—Municipal Airport site in 2013 and 2014.

To address the data gap at the Bakersfield—Municipal Airport, CARB prepared a missing data analysis to identify an upper bound on the ozone concentrations and exceedance days that might have been recorded at this site during the first half of 2012 if it had been operational during that time.28 To identify an upper bound, CARB calculated the maximum differences between daily maximum 1-hour ozone measurements occurring on the same days from the three surrounding sites (Oildale, Bakersfield—California Avenue, and Edison) and the Bakersfield—Municipal Airport site during the first six months of 2013 and 2014 and applied the maximum differences to the highest daily maximum hourly concentrations measured at the three nearby ozone sites during the first half of 2012. The results showed that at most one exceedance could have been measured at the Bakersfield—Municipal Airport during the first six months of 2012 if it had been operational during that time. Based on our review, we find CARB's methods for estimating an upper bound on ozone concentrations and exceedances at the Bakersfield—Municipal Airport site to be acceptable and agree with CARB's conclusions drawn from the analysis. Thus, we find that incompleteness of the 2012 data set from the Bakersfield—Municipal Airport site does not preclude an attainment determination for the San Joaquin Valley that relies, in part, on 2012 data.

In support of its request to EPA for a Clean Data Determination, CARB submitted analyses of the 1-hour ozone design value and concentration trends, along with analyses of topography, meteorology, and ozone precursor emissions in the Valley. Based on its analyses, CARB concluded that the ozone site within the Valley with the maximum 1-hour ozone concentration is currently located in the Fresno Metropolitan Statistical Area (MSA). Between 1990 and 2007, the maximum 1-hour ozone concentrations in the Valley alternated between the Bakersfield MSA in the southern portion of the Valley and the Fresno MSA in the central portion of the Valley.29 In 2008 the location of the maximum 1-hour ozone concentration site shifted from the Bakersfield MSA (at the Edison monitoring site for 2006-2007) to the Fresno MSA (at the Clovis—N. Villa Avenue monitoring site in 2008-2010), where it has remained through 2015 (at the Fresno—Sierra Skypark monitoring site in 2012-2014).30 CARB provided detailed evidence that the maximum 1-hour ozone concentrations in the Bakersfield MSA have decreased and the location of the maximum 1-hour ozone concentration has occurred in the Fresno MSA over last seven years (2008-2014).

CARB's analyses suggest that the Valley's topography, weather, and transport patterns strongly influence the geographic distribution of ozone, resulting in lower levels in the north, with higher levels in the central and southern portions of the Valley. In addition, CARB's analysis of emission inventories show decreasing trends in anthropogenic emissions of nitrogen oxides and reactive organic gases throughout the Valley from 2000 to 2014, with the fastest rates of decrease expected in the Bakersfield MSA, providing further support that the Valley's design value is likely to continue to occur in the Fresno MSA.

The Arvin—Bear Mountain monitoring site in the Bakersfield MSA was closed in 2010. Prior to its ceasing operation, a monitor intended to replace it began operating nearby at the Arvin—Di Giorgio site. The request to replace the Arvin—Bear Mountain monitoring site with the Arvin—Di Giorgio monitoring site and the EPA's analysis of the request are discussed in section II.C., below. At the time of its closure, the Arvin—Bear Mountain monitoring site had not recorded the maximum ozone concentration in the Valley in more than five years. However, in order to ensure that all sites that had been violating the 1-hour ozone NAAQS would be attaining the standard, CARB conducted a detailed analysis of the daily maximum 1-hour ozone concentrations expected at the Arvin—Bear Mountain monitoring site following its closure in 2010 because it had been one of the Valley sites that, in some prior years, recorded the highest ozone concentration in the Valley. CARB conducted rank-by-rank regression analyses and comparisons using 2010 data from the Arvin—Bear Mountain, Arvin—Di Giorgio, and Edison monitoring sites to estimate daily maximum 1-hour ozone concentrations and estimated expected exceedances at the Arvin—Bear Mountain monitoring site for 2011-2015 had the monitor remained operational until this time. CARB's analyses indicated that the Arvin—Bear Mountain monitoring site would have attained the 1-hour ozone NAAQS in the 2012-2014 period and would have continued to attain the standard for 2013-2015 based on the most recent preliminary data for 2015.31 CARB's analyses also concluded that the three-year average of estimated expected exceedances of 0.3 at the Arvin—Bear Mountain monitoring site for both the 2012-2014 and 2013-2015 periods would have been less than the corresponding values at the Fresno—Sierra Skypark monitoring site (0.7 for 2012-2014 and 0.4 for 2013-2015).

In addition to CARB's analyses, the District conducted predictive regression calculations of daily maximum 1-hour ozone concentrations for 2012 through 2014 at the Arvin—Bear Mountain and Arvin—Di Giorgio monitoring sites.32 Although the District used different methods, their results are consistent with the results from CARB's analyses, indicating that ozone concentrations at the Arvin—Bear Mountain monitoring site would have attained the 1-hour ozone NAAQS during 2012-2014. The District's analyses also indicate the location of the maximum 1-hour concentration ozone site within the Fresno MSA and provide support for the shift, in 2008, of the Valley's maximum site from the Bakersfield region to the Fresno region. This is further supported by monitoring data at the Arvin—Bear Mountain monitoring site that show that in the last five years of Arvin—Bear Mountain's monitor operation prior to its 2010 closure, the Valley's maximum 1-hour ozone concentration did not occur at the Arvin—Bear Mountain monitoring site.

Throughout this document, whenever “we,” “us,” or “our” is used, we mean the EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

The EPA is proposing action on a SIP revision submitted by the State of California (“State”) on November 13, 2015. The SIP submittal revises budgets applicable to control strategy or maintenance plans for the SJV for three different NAAQS. We are proposing to approve revised budgets for the 1997 8-hour ozone standard and the 2006 24-hour PM2.5 standard. We are also proposing to conditionally approve revised budgets for the 1987 24-hour PM10 standard. Should the EPA later finalize the revised budgets as proposed herein, they will replace the SJV's existing budgets for the 1997 8-hour ozone standard, the 2006 24-hour PM2.5 standard, and the 1987 24-hour PM10 standard. At that time, the previously-approved or adequate budgets would no longer be applicable for transportation conformity purposes, and the revised budgets would need to be used as of the effective date of the final approval.

In 1997, the EPA revised the ozone standard to set the acceptable level of ozone in the ambient air at 0.08 parts per million, averaged over an 8-hour period. 62 FR 38856 (July 18, 1997).1 On April 15, 2004, the EPA designated the SJV as nonattainment for the 1997 8-hour ozone standard and classified the area as “Serious” under CAA section 181(a)(1) and 40 CFR 51.903(a), Table 1. See 69 FR 23858 at 23888-89 (April 30, 2004) and 40 CFR 81.305. In 2007, California requested that the EPA reclassify the SJV from “Serious” to “Extreme” nonattainment for the 1997 8-hour ozone standard under CAA section 181(b)(3). We granted California's request on May 5, 2010 and reclassified the SJV to Extreme for the 1997 8-hour ozone standard effective June 4, 2010. See 75 FR 24409.

In 2006, the EPA revised the PM2.5 24-hour standard to provide increased protection of public health by lowering its level from 65 micrograms per cubic meter (μg/m3) to 35 μg/m3 (40 CFR 50.13). On November 13, 2009, the EPA designated the SJV as nonattainment for the 2006 24-hour PM2.5 standard. 74 FR 58688 (November 13, 2009). This designation became effective on December 14, 2009 (40 CFR 81.305).2

In 1987, the EPA revised the particulate matter standard, replacing standards for total suspended particulates with new standards applying only to PM10. 52 FR 24633 (July 1, 1987). In 1990, the SJV was designated nonattainment for PM10. 56 FR 11101 (March 15, 1991). In 2006, the 24-hour PM10 standard was retained, but the annual standard was revoked effective December 18, 2006. 71 FR 61144 (October 17, 2006).3 In 2008, the EPA approved a PM10 maintenance plan and redesignated the SJV to attainment for the 24-hour PM10 standard. 73 FR 66759 (November 12, 2008).

For all three pollutants, the SJV nonattainment area includes all of seven counties, including Fresno, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare counties, and the western half of Kern County. See the NAAQS-specific tables in 40 CFR 81.305.

Under the CAA, states are required to submit, at various times, control strategy SIP revisions and maintenance plans for nonattainment and maintenance areas for a given NAAQS. These emission control strategy SIP revisions (e.g., reasonable further progress (RFP) and attainment demonstration SIP revisions) and maintenance plans include motor vehicle emissions budgets of on-road mobile source emissions for criteria pollutants and/or their precursors to address pollution from cars and trucks. SIP budgets are the portions of the total allowable emissions that are allocated to on-road vehicle use that, together with emissions from other sources in the area, will provide for RFP, attainment or maintenance. The budget serves as a ceiling on emissions from an area's planned transportation system. For more information about budgets, see the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188).

Under section 176(c) of the CAA, transportation plans, Transportation Improvement Programs (TIPs), and transportation projects must “conform” to (i.e., be consistent with) the SIP before they can be adopted or approved. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS or delay an interim milestone. The transportation conformity regulations can be found at 40 CFR part 93.

Before budgets can be used in conformity determinations, the EPA must affirmatively find the budgets adequate. However, adequate budgets do not supersede approved budgets for the same CAA purpose. If the submitted SIP budgets are meant to replace budgets for the same purpose, the EPA must approve the budgets, and can affirm that they are adequate at the same time. Once the EPA approves the submitted budgets, they must be used by state and federal agencies in determining whether transportation activities conform to the SIP as required by section 176(c) of the CAA. The EPA's substantive criteria for determining the adequacy of budgets are set out in 40 CFR 93.118(e)(4).

The EMFAC model (short for EMission FACtor) is a computer model developed by the California Air Resources Board (CARB). CARB updates EMFAC on a regular basis and releases new versions generally every three or four years. The current version can estimate emission rates for on-road mobile sources (“motor vehicles”) operating in California for calendar years from 2000 to 2050. Pollutant emissions for VOCs,4 carbon monoxide (CO), NOX, PM10, PM2.5, lead, carbon dioxide (CO2), and sulfur oxides are outputs generated by the model. Emissions are calculated for fifty-one different vehicle classes composed of passenger cars, various types of trucks and buses, motorcycles, and motor homes.

EMFAC is used to calculate current and future inventories of motor vehicle emissions at the state, air district, air basin, or county level. EMFAC contains default vehicle activity data, and the option of modifying that data, so it can be used to estimate a motor vehicle emissions inventory in tons/day for a specific year, month, or season, and as a function of ambient temperature, relative humidity, vehicle population, mileage accrual, miles of travel and speeds. Thus the model can be used to make decisions about air pollution policies and programs at the local or state level. Inventories based on EMFAC are also used to meet the federal CAA's SIP and transportation conformity requirements.

Most budgets in the California SIP were developed using EMFAC2007 (released by CARB in October 2007) or EMFAC2011 (released by CARB in September 2011). The EPA approved EMFAC2007 at 73 FR 3464 (January 18, 2008) and EMFAC2011 at 78 FR 14533 (March 16, 2013) for all areas in California.

EMFAC2011 was considered a major update to previous versions of EMFAC and most budgets in the California SIP were updated with EMFAC2011 in the 2012-2014 timeframe. EMFAC2011 included a new model structure, new data and methodologies regarding calculation of motor vehicle emissions, and revisions to implementation data for control measures.

The EPA approved EMFAC2014 for use in SIP revisions and transportation conformity at 80 FR 77337 (December 14, 2015). EMFAC2014 includes significant changes to its model interface, new data and methodologies regarding calculation of motor vehicle emissions and revisions to implementation data for control measures. EMFAC2014 includes updated data on car and truck activity, and emissions reductions associated with CARB's Advanced Clean Cars regulations.5 Motor vehicle fleet age, vehicle types and vehicle population have also been updated based on 2000-2012 California Department of Motor Vehicle data. EMFAC2014 incorporates new temperature and humidity profiles. Each of these changes impact emission factors for each area in California. In addition to changes to truck activity, EMFAC incorporates updated vehicle miles traveled (VMT) for all vehicle classes. The new model interface for EMFAC2014 allows users to update the default VMT data and speed profiles by vehicle class for different future scenarios. CARB's Web site describes these and other model changes at: http://www.arb.ca.gov/msei/categories.htm#onroad_motor_vehicles.

The EPA previously approved the SJV budgets for the 1997 8-hour ozone standard and the 24-hour PM10 standard. The ozone budgets were included in the EPA's approval of the SJV 2007 8-hour Ozone Plan (“2007 Ozone Plan”) at 77 FR 12652 (March 1, 2012), which established NOX and VOC budgets for 2011, 2014, 2017, 2020, and 2023.6 The PM10 budgets were included in the EPA's approval of the 2007 PM10 Maintenance Plan and Request for Redesignation (“2007 PM10 Plan”) at 73 FR 66759 (November 12, 2008), which established direct PM10 and NOX budgets for 2005 and 2020.7

The EPA previously proposed to approve the SJV budgets for the 2006 24-hour PM2.5 standard. The PM2.5 budgets were included in the EPA's proposed approval of the SJV 2012 PM2.5 Plan (“2012 PM2.5 Plan”) at 80 FR 1816 (January 13, 2015). The EPA found the 2017 PM2.5 budgets in the SJV 2012 PM2.5 Plan to be adequate at 81 FR 22194 (April 15, 2016), establishing direct PM2.5 and NOX budgets for 2017. As of May 2, 2016, these budgets must be used to determine conformity of transportation plans and TIPs to the control strategy plan for the SJV for the 2006 24-hour PM2.5 standard.8

The current EPA-approved budgets for the 1997 8-hour ozone standard and PM10 standard were developed using EMFAC2007, and the adequate budgets for the 2006 24-hour PM2.5 standard were developed using EMFAC2011. In the SJV, the eight county-level Metropolitan Planning Organizations (MPOs) and the U.S. Department of Transportation (DOT) are the relevant transportation agencies that must use approved or adequate budgets in determining the conformity of transportation plans and TIPs within the SJV region.

The revised budgets for the 1997 8-hour ozone, 2006 24-hour PM2.5, and 24-hour PM10 standards were adopted by the CARB on October 22, 2015.9 They were submitted to the EPA on November 13, 2015.10

CAA sections 110(a)(1) and (2) and 110(l) require a state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, every SIP submittal should include evidence that adequate public notice was given and an opportunity for a public hearing was provided consistent with the EPA's implementing regulations in 40 CFR 51.102.

CARB satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption and submittal of the revised budgets. In the documentation included as part of the November 13, 2015 SIP revision submittal, CARB provided evidence of the required public notice and opportunity for public comment prior to its October 22, 2015 public hearing and adoption of the revised budgets. We find, therefore, that the submittal of the revised budgets meets the procedural requirements for public notice and hearing in CAA sections 110(a) and 110(l).

CAA section 110(k)(1)(B) requires the EPA to determine whether a SIP submittal is complete within 60 days of receipt. This section also provides that any plan submittal that the EPA has not affirmatively determined to be complete or incomplete will be deemed complete by operation of law six months after the date of submittal. The EPA's SIP completeness criteria are found in 40 CFR part 51, Appendix V. The EPA determined that CARB's November 13, 2015 SIP revision submittal was complete on April 21, 2016.11

Under section 110(l) of the CAA, SIP revisions must not interfere with any applicable requirements concerning attainment or RFP or any other applicable requirement of the Act. Generally, the EPA reviews budgets for adequacy or approval in the context of the Agency's review of a control strategy implementation plan (i.e., attainment or RFP plan) or maintenance plan. However, revisions to budgets can be approved without comprehensive updates to the related control strategy implementation or maintenance plan if the plan, with the new level of motor vehicle emissions contained in the revised budgets, continues to meet applicable requirements (i.e., RFP, attainment, or maintenance). EPA policy guidance suggests that a state may revise the motor vehicle emissions inventories and related budgets without revising their entire SIP consistent with section 110(l) if: (1) The SIP continues to meet applicable requirements when the previous motor vehicle emissions inventories are replaced with new MOtor Vehicle Emission Simulator (MOVES) base year and milestone, attainment, or maintenance year inventories; and (2) the state can document that growth and control strategy assumptions for non-motor vehicle sources continue to be valid and any minor updates do not change the overall conclusions of the SIP.12 The EPA's policy guidance for MOVES can be applied to EMFAC because EMFAC is a California-specific emissions model analogous to MOVES.

In addition, revised budgets that are intended to replace adequate (but not approved) budgets must meet the adequacy criteria found in our transportation conformity regulations at 40 CFR 93.118(e)(4). These criteria include endorsement by the Governor (or designee); prior consultation among relevant air and transportation agencies; clear identification and precise quantification of the budgets; consistency of the budgets, when considered with all other emissions sources, with applicable requirements for RFP, attainment or maintenance; consistency with and clear relation to the emissions inventory and control measures; and explanation and documentation of changes relative to previously submitted budgets. In this instance, the adequacy criteria do not apply to our review of the revised budgets for the 2007 Ozone Plan or the 2007 PM10 Plan because the budgets they would replace are approved budgets. The adequacy criteria do, however, apply to our review of the revised budgets for the 2012 PM2.5 Plan because the budgets from that plan have been found adequate, but are not yet approved.

Table 1 lists the revised budgets by subarea included in the State's submittal for the SJV budgets applicable to the 1997 8-hour ozone, 2006 24-hour PM2.5, and the 24-hour PM10 standards. CARB developed the revised budgets using EMFAC2014 and the travel activity projections provided by the San Joaquin Valley MPOs consistent with the 2015 Federal TIP. As such, we find that the revised budgets reflect the most recent planning forecasts and are based on the most recent emission factor data and approved calculation methods. A comparison of the current approved or adequate budgets with the revised budgets and a discussion of the EPA's proposed action on each set of budgets is provided further below.

Tables 2 and 3 below compare the current EPA-approved NOX and VOC budgets developed using EMFAC2007 with the revised budgets developed using EMFAC2014. The budgets are provided by subarea and apply to the 1997 8-hour ozone standard.

The revised NOX and VOC budgets for 2017, 2020, and 2023 are intended to replace the EPA-approved NOX and VOC budgets in 2007 Ozone Plan developed for the 1997 8-hour ozone standard. A comparison of the current budgets with the revised budgets is shown in tables 2 and 3. The tables show that the NOX and VOC totals for the revised budgets are less than the current budgets for all years, except 2020 for NOX, which shows a slight increase of 1.4 tpd or 1.4% when compared to the prior budget.

First, we note that the 2007 Ozone Plan relied upon motor vehicle emissions inventories, from which the budgets 14 were derived, to demonstrate compliance with RFP and attainment requirements. With respect to the RFP requirement, we found that the 2007 Ozone Plan provided a significant surplus of NOX emissions reductions beyond those necessary to meet the RFP requirement. See table 11 of our proposed approval of the 2007 Ozone Plan (76 FR 57862, September 16, 2011). As shown in tables 2 and 3, with one exception, the revised regional total motor vehicle emissions estimates submitted by CARB for VOC and NOX for 2017, 2020 and 2023 are lower than the corresponding estimates from the plan as approved in 2012. As such, the replacement of the older budgets with the revised budgets would not change the conclusion that the 2007 Ozone Plan meets the requirements for RFP. The exception, the 1.4 tpd of NOX in 2020, is too minor to affect the conclusion that the 2007 Ozone Plan will continue to meet the RFP requirement in that year given the significant surplus in NOX emissions reductions in that year.

Second, we have reviewed the analysis CARB prepared in support of the revised budgets and contained in the staff report included with the November 13, 2015 SIP revision submittal. In that analysis, CARB prepared updated NOX and VOC emissions inventories from all sources (i.e., stationary, area, on-road and non-road sources) in the SJV for 2017, 2020, and 2023. These updated inventories provide a basis for comparison with the corresponding inventories from the 2007 Ozone Plan. We would expect that most current emissions estimates from all sources in SJV in 2017, 2020, and 2023 would be lower than those included in the 2007 Ozone Plan because they reflect control measures adopted since the plan was approved, and as shown below in tables 4 and 5, the updated regional emissions for 2017, 2020, and 2023, including the revised budgets, are approximately 20 tpd, 15 tpd, and 34 tpd lower for NOX and 0 tpd, 4 tpd, and 12 tpd lower for VOCs, respectively, than the corresponding figures in the EPA-approved plan. The most significant differences between the inventories are from large decreases in the actual reported emissions for several point source categories (i.e., cogeneration, oil and gas production, food and agriculture, glass manufacturing and composting), compared to their projected emissions in the EPA-approved plan.15 Other significant differences include updates to: (1) Agricultural acreage burned; (2) CARB's off-road source emissions using a newer suite of category-specific models developed to support recent CARB regulations; and (3) animal population estimates and VOC emission factors for livestock operations. The current emissions estimates for 2023 (161 tpd of NOX, and 327 tpd of VOC) are consistent with the attainment target level 16 for the 1997 ozone standard (141 tpd of NOX, and 342 tpd of VOC) given the continued implementation of the long-term element of the control strategy of the 2007 Ozone Plan to develop new technologies or to improve existing control technologies as approved by EPA under section 182(e)(5).

Therefore, we find that the 2007 Ozone Plan will continue to meet applicable requirements for RFP and attainment when the previously-approved EMFAC2007-based budgets are replaced with the revised EMFAC2014-based budgets, and that the changes in the growth and control strategy assumptions for non-motor vehicle sources do not change the overall conclusions of the 2007 Ozone Plan. As such, we find that approval of the revised NOX and VOC budgets for the 2007 Ozone Plan for 2017, 2020 and 2023 as shown in table 1 would not interfere with attainment or RFP or any other requirement of the Act and would thereby comply with section 110(l), and we propose to approve them on that basis.

Comment Period

The EPA is extending the public comment period for the proposed rule (81 FR 22810; April 18, 2016) an additional 14 days. The public comment period will end on June 16, 2016, rather than June 2, 2016. This will provide the public additional time to review and comment on all of the information available, including the proposed rule and other materials in the docket.

This is a summary of Commission's document, Report No. 3043, released May 9, 2016. The full text of the Petitions is available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 or may be accessed online via the Commission's Electronic Comment Filing System at http://apps.fcc.gov/ecfs/. The Commission will not send a copy of this Public Notice pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this Public Notice does not have an impact on any rules of particular applicability.

Subject: Promoting Diversification of Ownership in the Broadcasting Services, published at 81 FR 19432, April 4, 2016, in MB Docket Nos. 07-294 and 10-103, MD Docket No. 10-234, and FCC 16-1. This Public Notice is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1).

Number of Petitions Filed: 4