Federal Register Vol. 82, No.133,

The Office of Personnel Management (OPM) is issuing proposed regulations to implement the Administrative Leave Act of 2016, enacted under section 1138 of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-328, 130 Stat. 2000, December 23, 2016). The Administrative Leave Act of 2016, hereafter referred to as “the Act,” added three new sections in title 5 of the U.S. Code that provide for specific categories of paid leave and requirements that shall apply to each: § 6329a Regarding administrative leave; § 6329b regarding investigative leave and notice leave; and § 6329c regarding weather and safety leave.

Prior to passage of the Act, agencies granted paid excused absences (often called “administrative leave”) to employees based on the broad management authority in 5 U.S.C. 301-302, which allows heads of agencies to prescribe regulations for the government of their organizations. This authority does not expressly address excused absence and thus does not set parameters on its use. However, some direction on use of the excused absence authority was provided in Comptroller General decisions and in OPM guidance.

In the sense of Congress provisions in section 1138(b) of the Act, Congress expressed the need for legislation to address concerns that usage of administrative leave had sometimes exceeded reasonable amounts and resulted in significant costs to the Government. Congress wanted agencies to (1) use administrative leave sparingly and reasonably, (2) consider alternatives to use of administrative leave when employees are under investigation, and (3) act expeditiously to conclude investigations and either return the employee to duty or take an appropriate personnel action. Congress also wanted agencies to keep accurate records regarding the use of administrative leave for various purposes.

In drafting the Act, Congress considered an October 2014 report entitled “Federal Paid Administrative Leave,” which was prepared by the Government Accountability Office (GAO). (See GAO Report 15-79.) At the request of Congress, GAO examined the paid administrative leave policies at selected Federal agencies, reviewed practices in recording and reporting of paid administrative leave, and described categories of purposes for which large amounts of paid administrative leave have been charged. GAO found that agency policies on administrative leave varied and that some employees were on administrative leave for long periods (primarily due to extended personnel investigations), which had significant cost implications. GAO also found problems in agencies' recording and reporting practices with respect to administrative leave. The GAO report was cited in Congressional committee reports on draft bills addressing the use of administrative leave for Federal employees. (See House Report 114-520, August 25, 2016, accompanying H.R. 4359 and Senate Report 114-292, July 6, 2016, accompanying S. 2450.) Those committee reports also include useful background information on the development of legislation that eventually culminated in the passage of the Administrative Leave Act of 2016.

In this proposed regulation, OPM proposes to add three new subparts to 5 CFR part 630 that correspond to the three new statutory sections in 5 U.S.C. chapter 63: Subpart N, Administrative Leave (implementing 5 U.S.C. 6329a); Subpart O, Investigative Leave and Notice Leave (implementing 5 U.S.C. 6329b); and Subpart P, Weather and Safety Leave (implementing 5 U.S.C. 6329c).

Administrative leave is permitted—at an agency's discretion but subject to statutory and regulatory requirements—when an agency determines that no other paid leave is available under other law. Under § 6329a(b)(1), an agency may place an employee on administrative leave for no more than 10 total workdays in any given calendar year.

Investigative leave and notice leave are permitted—at an agency's discretion but subject to statutory and regulatory requirements—when an agency determines that an employee must be removed from the workplace while under investigation or during a notice period (i.e., the period after the employee has received a proposed notice of adverse action before a final decision is made and takes effect). These two types of leave may be used only when an authorized agency official determines, through evaluation of baseline factors, that the continued presence of the employee in the workplace may pose a threat to the employee or others, result in the destruction of evidence relevant to an investigation, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests. Before using these two types of leave, agencies must consider options to avoid or minimize the use of paid leave, such as changing the employee's duties or work location. Use of investigative leave is subject to time limitations and special approvals for extensions.

Weather and safety leave is permitted—at an agency's discretion but subject to statutory and regulatory requirements, agency policies, and lawful collective bargaining provisions—when an agency determines that employees cannot safely travel to and from, or perform work at, their normal worksite, a telework site, or other approved location because of severe weather or other emergency situations. There are no time limitations with respect to this type of leave.

Both the law and the proposed regulations address recordkeeping and reporting requirements with which agencies must comply. Agencies must keep separate records on each type of leave: Administrative leave, investigative leave, notice leave, and weather and safety leave.

In the latter portion of this Supplementary Information, we present a section-by-section explanation for the regulations in each subpart (N, O, and P).

The Act directs OPM to prescribe (i.e., publish) regulations to carry out the new statutes on administrative leave, investigative leave, notice leave, and weather and safety leave no later than 270 calendar days after the Act's enactment on December 23, 2016—i.e., September 19, 2017. (See 5 U.S.C. 6329a(c)(1), 6329b(h)(1), and section 6329c(d).) The Act further directs that agencies “revise and implement the internal policies of the agency” to meet the statutory requirements pertaining to administrative leave, investigative leave, and notice leave no later than 270 calendar days after the date on which OPM issues its regulations. (See 5 U.S.C. 6329a(c)(2) and 6329b(h)(2).) There is no similar agency implementation provision in the law governing weather and safety leave.

When OPM issues final regulations, we intend to specify that the regulations for subparts N and O (dealing with administrative leave and investigative/notice leave, respectively) will take effect 270 days after publication by specifying a separate “implementation date.” Consistent with the statutory provisions, agencies will have 270 calendar days following the date of publication of the final regulations to revise and implement internal policies to meet the new requirements. That will give agencies time to develop internal policies and procedures, including necessary changes in recordkeeping and reporting systems. OPM intends to further specify that subpart P (dealing with weather and safety leave) will take effect 30 days after the date of publication of the final regulations. However, we expect to delay enforcing the requirement that agencies separately report weather and safety leave to OPM until the 270th day following publication of the final regulations.

In OPM's regulations dealing with general provisions for annual and sick leave (5 CFR subpart B), we propose to remove the second sentence in § 630.206(a), which reads: “If an employee is unavoidably or necessarily absent for less than one hour, or tardy, the agency, for adequate reason, may excuse him without charge to leave.” This regulation was not an authority for creating a type of paid time off, but merely recognized the existence of agency authority to provide brief periods of excused absence under Comptroller General decisions.

Now that OPM has authority to regulate the use of administrative leave under 5 U.S.C. 6329a, it is more appropriate for this particular application of administrative leave to be covered under the new regulations. We would expect administrative leave under 5 U.S.C. 6329a to be used rarely, if at all, for the purpose of excusing a tardy employee. We note that weather and safety leave under 5 U.S.C. 6329c may appropriately be used so that, due to weather or other emergency conditions, an agency may allow employees to have a delayed arrival to avoid unsafe travel conditions.

Section 630.1401 addresses the purpose of the proposed regulations on administrative leave—i.e., to implement 5 U.S.C. 6329a. It also notes OPM's authority to prescribe regulations to carry out the new statutory provisions, including the appropriate uses and the proper recording of administrative leave. Additionally, this section provides that subpart N applies to employees, as defined at 5 U.S.C. 2105, who are employed in executive branch agencies, but does not apply to intermittent employees.

Section 630.1402 provides definitions of terms for purposes of subpart N. Explanations regarding certain definitions are provided below.

We define administrative leave to mean paid leave authorized at the discretion of an agency that is provided without loss or reduction in pay, other leave, or service credit and that is exclusive of leave authorized under any other provision of statute or Presidential directive. Thus, for example, a back pay correction may provide for retroactive pay for a nonduty period when a separation is later found to be erroneous. Such a granting of retroactive pay is not a granting of administrative leave under 5 U.S.C. 6329a, since it is authorized under the back pay law and regulations. Also, the 5 days of excused absence granted by the Presidential memorandum of November 14, 2003, for employees returning from active military duty is not considered administrative leave under this subpart. We also clarify that administrative leave excludes periods when the employee is engaged in activities that qualify as official hours of work, such as attendance at an agency town hall meeting.

We provide that the term agency refers to an executive agency of the Federal Government. As required by 5 U.S.C. 6329a(a)(2)(c), the General Accountability Office is excluded from this definition, and thus from coverage by subpart N. When used in the context of an agency making determinations or taking actions, “agency” refers to the agency head or management officials who are authorized (including by delegation) to make a given determination or take a given action.

We define employee as an individual who is covered by subpart N as described in § 630.1401(b) and (c). As provided in that section and in 5 U.S.C. 6329a(a)(3)(A), “employee” has the meaning used in 5 U.S.C. 2105. As provided in 5 U.S.C. 6329a(a)(3)(B), intermittent employees who do not have an established regular tour of duty during the administrative workweek are excluded from the definition of “employee,” and therefore are not covered by the provisions of subpart N. While not expressly addressed in the proposed regulations, we note that certain Presidential appointees in the executive branch are exempt from the leave system under 5 U.S.C. 6301(2)(x)-(xii) and are entitled to pay solely because of their status as officers. Such officers are not placed in leave status for any purpose; thus, subparts N, O, and P do not apply to such officers.

We define head of the agency to mean the head of an agency or a designated representative of such agency head who is (1) an agency headquarters-level official reporting directly to the agency head or a deputy agency head and (2) the sole such representative for the entire agency. This term is used in § 630.1403(a)(5)(i) and (b)(4).

We define Presidential directive to mean an Executive order, Presidential memorandum, or official written statement by the President in which the President specifically directs agency heads to provide employees with a paid excused absence under a specified set of conditions. This excludes a Presidential action that (1) merely encourages agency heads to use an agency head authority (e.g., section 6329a) to grant a paid excused absence under certain conditions or (2) leaves them with discretion regarding whether to grant excused absence in a particular scenario or discretion regarding the amount of excused absence to be granted in a particular scenario.

This section sets out the general principles and prohibited uses of the administrative leave authority under 5 U.S.C. 6329a and subpart N. In developing the general principles, OPM took into account past OPM policy and guidance as well as Comptroller General decisions regarding the use of general administrative leave. In paragraph (a)(1), we list three conditions. To justify any use of administrative leave, one of these conditions must be met. The first condition is that an agency may grant administrative leave when the absence directly relates to the mission of the agency. For example, an agency could grant administrative leave to an employee to attend a professional meeting or perform certain volunteer work when these relate to the agency's mission.

The second condition permits an agency to grant administrative leave when the absence is for an activity officially sponsored or sanctioned by the agency. For example, an agency may grant administrative leave to permit employees to participate in an American Red Cross blood donation drive being conducted in an agency facility.

The third condition permits an agency to grant administrative leave when the agency determines that the absence would be in the interest of the agency or the Government as a whole. For instance, an agency may grant administrative leave to allow an employee to participate in employee wellness or health promotion events (e.g., influenza vaccinations, health screenings, or health education forums) or to ensure that an employee has the opportunity to vote. Also, an agency may grant administrative leave to cover brief periods of tardiness or to provide for early dismissal when it is determined to be in the interest of the agency.

Section 630.1403(a)(5) provides that a determination that an absence satisfies one of the three conditions in § 630.1403(a)(1) must be (1) permitted under policies established by the head of the agency; and (2) reviewed and approved by an official of the agency who is (or is acting) at a higher level than the official making the determination (unless the determination is made by the head or acting head of the agency). The first requirement ensures that agency heads are accountable for adopting policies to ensure appropriate use of administrative leave, consistent with OPM regulations. The second requirement—that administrative leave be approved only after second-level review—should help prevent inappropriate uses and ensure that administrative leave is used sparingly.

Section 630.1403(a)(2) states the principle that administrative leave is not an employee entitlement, but is granted sparingly at the discretion of the agency. Accordingly, employees are not entitled to a certain number of administrative leave hours or days during any specified period, whether biweekly, monthly, or annually.

Section 630.1403(a)(3) states the principle that the appropriate use of administrative leave is for brief periods of time. In most instances, this will be no longer than 1 day; however, exceptions may be approved. For example, an exception is made for times when an employee is subject to an investigation and his or her retention in duty status is inconsistent with the best interests of the Government. In this case, the agency—prior to placing an employee on investigative leave under subpart O of these regulations—must charge administrative leave until expiration of the 10-workday limit described in 5 U.S.C. 6329a(b)(1) and § 630.1404. (See also 5 U.S.C. 6329b(b)(3)(A).)

Section 630.1403(a)(4) states the principle that administrative leave may not be established as an ongoing or recurring entitlement. Accordingly, an agency may not provide a recurring entitlement to administrative leave, for example, on an employee's birthday or on a day following a Thursday holiday. However, an agency may grant administrative leave on an ad hoc basis for an activity or event that may be ongoing or recurring and is in the Government's interest (e.g., influenza vaccinations or blood donation drives).

In addition to the general principles, § 630.1403(b) describes specific prohibited uses of administrative leave. Section 630.1403(b)(1) provides that agencies are prohibited from using administrative leave to mark the memory of a deceased Federal official, which is consistent with the principle underlying the statutory bar in 5 U.S.C. 6105 prohibiting closure of agencies to mark the memory of a deceased Federal official. We note, however, that section 6105 does not constrain the President from exercising his or her authority in 5 U.S.C. 6103(b) to declare a holiday by Executive order in connection with the death of a President. If the President provides excused absence for Federal employees to commemorate the service of a deceased former President, such excused absence is not a granting of administrative leave under 5 U.S.C. 6329a or subpart N, since it is granted under a Presidential directive and is also authorized as a holiday under 5 U.S.C. 6103(b). (The definition of “administrative leave” under § 630.1402 excludes paid leave authorized under Presidential directives.)

Section 630.1403(b)(2) prohibits agencies from granting administrative leave to permit an employee to participate in an event for his or her personal benefit or the benefit of an outside organization, unless the participation would satisfy one of the conditions in § 630.1403(a)(1). To permit employees to participate in these events, agencies alternatively may approve employees' requests to adjust their work schedules or to use annual leave, leave without pay, compensatory time off, credit hours, or other earned time off.

Section 630.1403(b)(3) prohibits agencies from granting administrative leave as a reward to recognize the performance or contributions of employees. The proper personnel authorities for recognizing the performance or contributions of employees are cash awards and time-off awards. This prohibition does not affect employee attendance at agency awards ceremonies, since such attendance is considered to be on-duty time in direct support of the agency mission.

Section 630.1403(b)(4) prevents agencies from granting administrative leave to allow employees to engage in volunteer work or other civic activity that is not officially sponsored or sanctioned by the head of the agency, based on the agency's mission or Governmentwide interests. This prohibition bars agencies from providing administrative leave for volunteer and other activities that do not benefit the agency or serve a Governmentwide interest. A Governmentwide interest is generally documented through a statement of support by the President or the OPM Director. For employees who wish to participate in volunteer activities during basic working hours, agencies alternatively may permit work schedule adjustments or approve use of annual leave, compensatory time off, credit hours, or other earned time off, or may allow employees to take leave without pay. For long-term volunteer work, agencies may approve part-time or job sharing schedules.

Section 630.1404 addresses the 10-workday calendar year limitation on use of administrative leave imposed by 5 U.S.C. 6329a(b)(1). Paragraph (a) states the limitation and notes that the 10-day limitation carries over when an employee transfers to another covered agency or separates and is reemployed by a covered agency within the same calendar year. For example, if an employee has been granted 6 workdays of administrative leave at one agency and then transfers to another agency, the employee may be granted only 4 more workdays of administrative leave by the gaining agency during the remainder of the calendar year.

Section 630.1404(b) provides for the conversion of the 10-workday calendar year limitation to an aggregate limit on hours in order to facilitate application of the limit to employees on different work schedules. For full-time employees who are not on an uncommon tour of duty under § 630.210, the 10-workday limitation is converted to an 80-hour limitation. For full-time employees with an uncommon tour of duty, the converted calendar year limitation equals the number of hours in the biweekly uncommon tour of duty, averaged as necessary. For example, for an employee with an uncommon tour of 144 hours biweekly, the 10-workday limitation equates to 144 hours. (Note that the regular 80-hour calendar limit multiplied by 144/80 equals 144 hours.) For a part-time employee, the calendar year limitation is prorated based on the number of hours in the employee's tour of duty consistent with the proration of annual and sick leave required by 5 U.S.C. 6302(c). For example, the 10-workday limitation for a half-time employee equates to 40 hours, since 80 hours times 40/80 equals 40 hours.

Section 630.1404(c) provides that the calendar year limitation applies only to administrative leave. The limitation does not apply to investigative leave and notice leave provided under subpart O, weather and safety leave provided under subpart P, or leave provided under other statute or a Presidential directive.

Section 630.1404(d) provides that, in accordance with 5 U.S.C. 6329b(b)(3)(A), if an employee under investigation must be placed on leave and that employee has not yet reached the 10-workday calendar year limitation, administrative leave under subpart N must first be used instead of investigative leave. This is because investigative leave under subpart O may not be used until the employee has exhausted the 10-workday limitation.

Section 630.1404(e) prohibits agencies from granting additional administrative leave until the next calendar year when an employee reaches the calendar year limit. If an employee has reached his or her calendar year limit and a situation arises where the employee might have been granted administrative leave but for the limit, the employee must continue to work or use other appropriate leave (e.g., annual leave), time off, or leave without pay. When an employee is not able to work and is not willing or able to use paid leave or time off, the agency must place the employee in an appropriate type of nonpay status.

Section 630.1405(a) provides that the minimum charge increment (fraction of an hour) for administrative leave is the same as the agency uses for annual and sick leave.

Section 630.1405(b) states that administrative leave may be granted only for hours within an employee's tour of duty established for the purposes of charging annual and sick leave, which for full-time employees is either the 40-hour basic workweek, the basic work requirement for employees on a flexible or compressed work schedule, or an uncommon tour of duty pursuant to § 630.210.

Section 630.1405(c) states that agencies may authorize or require administrative leave for a single employee or a category of employees. It also notes that employees do not have an entitlement to administrative leave and, in particular, are not entitled to receive the full calendar year limit each year. Employees receive only the amount of administrative leave granted by the agency, which may be less (but can never be more) than the calendar year limit. This paragraph also notes that employees do not have a right to refuse administrative leave when the agency requires its use.

This section provides the recordkeeping and reporting requirements regarding administrative leave. Paragraph (a) requires agencies to accurately record use of administrative leave for each employee under two categories—administrative leave used for the purposes of an investigation and administrative leave used for all other purposes. Paragraph (b) requires that agency data systems and data reports submitted to OPM record administrative leave authorized under 5 U.S.C. 6329a and subpart N of these regulations separately from other types of leave and in the two categories noted above. This section also states that agencies must provide information on the granting of administrative leave to the Government Accountability Office as that office requires.

Under § 630.1407, agencies must certify, in a manner prescribed by OPM, the number of hours used by an employee in the two administrative leave categories during the current calendar year when the employee transfers to another agency or separates. The employee does not receive a new calendar year limitation upon (1) transfer to another agency or (2) reemployment by a covered agency after a separation within the same calendar year. Thus, the gaining agency must apply the hours reported by the losing agency to the employee's current calendar year limitation.

Section 630.1501(a) states the purpose of subpart O—i.e., to implement 5 U.S.C. 6329b, which allows an agency to provide a separate type of paid leave for employees who are the subject of an investigation or in a notice period. These two new categories are to be known as “investigative leave” and “notice leave.” Section 630.1501(a) notes that OPM has authority to prescribe implementing regulations under 5 U.S.C. 6329b(h)(1).

Section 630.1501(b) states this subpart applies to an employee as defined in 5 U.S.C. 2105 who is employed in an agency, excluding an Inspector General or an intermittent employee who, by definition, does not have an established regular tour of duty during the administrative workweek. This subpart does not apply to employees who are exempt from 5 U.S.C. chapter 63, such as employees of the Federal Aviation Administration (FAA) and Transportation Security Administration (TSA) employees. (Specific laws in title 49 provide that most title 5 provisions, including chapter 63, do not apply to FAA and TSA employees. See 49 U.S.C. 114(n) and 40122(g)(2).)

Section 630.1501(c) explains this subpart applies to certain employees covered by a special personnel authority in title 38, United States Code, even though that authority would normally allow those employees to be exempted from title 5 leave provisions.

Section 630.1502 provides definitions of various terms. The definitions align with definitions found in the law. Explanations regarding certain definitions are provided below.

We are defining the term investigation to mean an inquiry regarding an employee. Examples of an inquiry may include: (1) An employee's alleged misconduct that could result in an adverse action as described in 5 CFR part 752 or similar authority; (2) security concerns, including (but not limited to) whether the employee should retain eligibility for logical access to agency facilities and systems under the standards established by Homeland Security Presidential Directive (HSPD) 12 and guidance issued pursuant to that directive; or (3) other matters that could lead to disciplinary action.

We are defining the term investigative entity consistent with the statutory definition in 5 U.S.C. 6329b(a)(6); however, we are adding language to make clear that an internal investigative unit may be composed of one or more persons, such as supervisors, managers, human resources practitioners, personnel security office staff, workplace violence prevention team members, or other agency representatives.

In the definition of the term notice period, we have clarified when the notice period ends. For an employee with respect to whom an adverse action is being taken, the notice period ends on the effective date of the adverse action. For an employee for whom an adverse action is not being taken, the notice period ends on the date on which the agency notifies the employee that no adverse action will be taken.

We are providing a definition of participating in a telework program, which term is used in § 630.1503(c)(1)(iii). An employee is considered to be participating in a telework program if the employee is eligible to telework and has an established arrangement with his or her agency under which the employee is approved to participate in the agency telework program, including on a routine or situational basis. Thus, an employee who teleworks on a situational basis is considered to be continuously participating in a telework program even if there are extended periods during which the employee does not perform telework.

We are providing a definition of telework site, which is defined as a location where an employee is authorized to perform telework as described in 5 U.S.C. chapter 65, such as an employee's home.

Separate from the administrative leave authorized by 5 U.S.C. 6329a and subpart N, new § 630.1503 establishes two new forms of paid leave on which agencies may place employees who are under investigation or who have received a notice of a proposed adverse action. These two new categories are to be known as “investigative leave” under § 630.1503(a)(1) and “notice leave” under § 630.1503(a)(2). Investigative leave and notice leave are not employee entitlements. Instead they are intended to provide the employing agency with the means of removing an employee from the workplace and keeping the employee away from the workplace while the agency investigates the employee or during the notice period of a proposed adverse action against that employee (or both). The default situation should be that an employee who is being investigated or against whom an adverse action has been proposed will remain in a duty status in his or her regular position during the investigation or notice period. Investigative leave or notice leave should be applied only when the agency makes the required determination that the employee must be removed from the workplace during a period of investigation or during a notice period in order to protect agency facilities or systems, the Federal workforce, or the public from harm. In these circumstances, after the required consideration of other options, an agency may place an employee on investigative leave or notice leave. An agency may also consider requiring an employee who is otherwise telework-eligible and who is currently (or recently) participating in the agency telework program to telework from home or another approved location as an alternative to investigative leave. (Any such assessment, however, will need to take into account whether the employee should retain eligibility for logical access to agency systems under the standards established by Homeland Security Presidential Directive (HSPD) 12 and guidance issued pursuant to that directive).

Section 630.1503(a)(1) states one of the conditions that must be met before an employee may be placed on investigative leave—namely, that the employee is “the subject of an investigation.”

Section 630.1503(a)(2)(i) authorizes notice leave when an employee is in a notice period. An employee who has not received an advance notice of proposed adverse action under 5 CFR chapter 752 may not be provided notice leave. Section 630.1503(a)(2)(ii) authorizes notice leave, following a placement of an employee on investigative leave, which may be provided after the last day of the period of investigative leave if the agency proposes an adverse action against the employee under 5 CFR chapter 752 or similar authority. This means investigative leave and notice leave may be used consecutively in some instances. Agencies should be mindful, however, of any internal procedures related to the preparation and approval of a proposed adverse action before it is issued. If the agency determines that the employee continues to meet the criteria of § 630.1503(b)(1) and one or more of the options in § 630.1503(b)(2) is not appropriate, the agency may not transition the employee from investigative leave to notice leave until such time as it has issued the notice of proposed adverse action.

Section 630.1503(b) sets forth the limited circumstances under which an agency may place an employee on investigative leave or notice leave, consistent with the statutory requirements in 5 U.S.C. 6329b(b)(2). First, as provided in paragraph (b)(1), the agency has to make a determination that the continued presence of the employee in the workplace while under investigation or in a notice period may pose a threat to the employee or others, result in the destruction of evidence relevant to an investigation, result in loss or damage to Government property, or otherwise jeopardize legitimate Government interests. (See 5 U.S.C. 6329b(b)(2)(A).) This determination is accomplished through an assessment of baseline factors.

Second, as provided in paragraph (b)(2), the agency must consider required options instead of the use of investigative leave or notice leave.

The baseline factors referenced in § 630.1503(b)(1) are identified in § 630.1503(e), but are described at this point in the section-by-section review of the regulations given their essentiality in making a determination under paragraph (b)(1) regarding whether an employee's continued presence in the workplace is appropriate. Under 5 U.S.C. 6329b(h)(1)(C), OPM is required to prescribe regulations regarding baseline factors. The baseline factors the agency must consider when making a determination under paragraph (b)(1) are: (1) The nature and severity of the employee's exhibited or alleged behavior, (2) the nature of the agency's or employee's work and the ability of the agency to accomplish its mission, and (3) other impacts of the employee's continued presence in the workplace detrimental to legitimate Government interests, including (but not limited to) whether the employee will pose an unacceptable risk to (i) the life, safety, or health of employees, contractors, vendors or visitors to a Federal facility; (ii) the Government's physical assets or information systems; (iii) personal property; (iv) records, including classified, privileged, proprietary, financial or medical records; or (v) the privacy of the individuals whose data the Government holds in its systems.

The baseline factors are to be used as a starting point when determining whether an employee should be placed on investigative leave or notice leave. Each baseline factor should be considered. Agencies should exercise independent, reasonable judgment in evaluating each particular situation. Agencies should consult with their human resources office or their general counsel, or both, to the extent appropriate, before placing an employee on investigative leave or notice leave.

• Nature and severity of the employee's exhibited or alleged behavior.

An agency may determine investigative leave and/or notice leave is necessary because of the nature and severity of the employee's exhibited or alleged behavior. The behavior could be the basis for the investigation and/or be the reason for the proposed adverse action. In some cases, however, the behavior may be exhibited during or following an investigation or proposed adverse action. The nature and severity of the behavior may be in the form of danger to the employee or others, or to Government networks, systems, or property.

Examples of possible threats include direct or veiled threats of harm, belligerence, harassing, bullying, or other inappropriate and aggressive behavior. The employee may have made statements and/or engaged in behaviors that have intimidated other employees or management may have determined that statements or behaviors, because of their disturbing nature, have disrupted the workplace. The behavior may be directed at another individual or may involve physical damage to or destruction of Government property or the misuse of agency systems or the data they contain; it could also involve a plan to commit, threat to commit, or attempt to commit such conduct. Examples include but are not limited to assaulting a co-worker, supervisor, or agency client; menacing conduct, such as destruction of furniture or other action that puts another individual in reasonable fear of immediate bodily injury. The nature and severity of the employee's exhibited or alleged behavior may involve agency computer systems and other technologies, as well as data handling and access. Examples could include attempting to gain or actually obtaining unauthorized access to systems disbursing money or to classified information. When appropriate, agencies should work closely with their information systems management and/or cyber security advisors to identify patterns of behavior that may indicate the potential for malicious activity on information systems. The agency should identify any relationship between the perceived threat and the technology that may be vulnerable. These considerations relate to the agency's responsibility to determine internal security practices, which includes developing policies and practices designed to safeguard personnel, property or operations, as well as developing a plan to prevent damage to or loss of agency property.

• Nature of the work and the ability of the agency to accomplish its mission.

In determining whether to place an employee on investigative leave and/or notice leave, it is important to consider the relationship between the employee's behavior and his or her ability to perform work successfully and without unreasonable risk to the agency during the investigation or notice period and accomplish his or her duties satisfactorily. Among the considerations would be the nature of the employee's duties, the employee's job level, and/or whether the employee has a supervisory or fiduciary role. An employee's contact with the public and the prominence of his or her position are additional considerations that an agency may evaluate in relationship with the alleged misconduct.

• Other impacts detrimental to legitimate Government interests, including whether the employee will pose an unacceptable risk to (1) the life, safety, or health of employees, contractors, vendors or visitors to a Federal facility; (2) the Government's physical assets or information systems; (3) personal property; (4) records, including classified, privileged, proprietary, financial or medical records; or (5) the privacy of the individuals whose data the Government holds in its systems.

This factor represents a broad category that agencies may apply given their individual missions. This could include a range of workplace behaviors and actions that could impede the normal course of work, or have a harmful effect on the safety and order of the workplace. Possible aspects the agency may wish to review in this regard include the extent to which the employee's presence in the workplace or access to agency systems may impair or disrupt agency operations, place systems at risk, harm public confidence in the agency, or otherwise have a detrimental impact on legitimate Government interests. It is advisable for agencies to consult with their legal counsel to determine what situations and circumstances would be detrimental to legitimate Government interests in light of other authorities such as HSPD 12. Differences in agency mission or agency practice, or other internal regulations, may affect this determination.

When considering these baseline factors, agencies should evaluate the duration of the risk; the nature and severity of the potential harm; how likely it is that the potential harm will occur; and how imminent the potential harm is. The agency may not arbitrarily place individuals on investigative leave or notice leave based upon fear of a future risk without engaging in an individualized assessment that establishes that there is a significant risk of substantial harm that cannot be eliminated or reduced by other means.

Section 630.1503(b)(2) requires that the agency consider other options where appropriate to minimize the amount of investigative leave or notice leave provided to an employee, consistent with 5 U.S.C. 6329b(b)(2)(B). Thus, if the agency makes a determination that the continued presence of the employee in the workplace during an investigation of the employee or while the employee is in a notice period meets the criteria of § 630.1503(b)(1), the agency must also consider certain options before placing the employee on investigative leave or notice leave. The options that must be considered are: (1) Assigning the employee to duties in which the employee is no longer a threat, (2) allowing the employee to voluntarily take another type of leave, (3) carrying the employee in absent without leave status if the employee is absent from duty without approval, and (4) curtailing the notice period, consistent with chapter 75 of title 5 of the U.S. Code and OPM regulations thereunder. The agency may elect to implement one or a combination of these options. Consideration of these options is consistent with adverse action procedures in 5 CFR 752.404(b)(3).

An agency needs to assess whether one or more of the options required to be considered is or are appropriate, and, if so, which is the most appropriate to address concerns about the continued presence of the employee in the workplace and to resolve the safety or security issue(s) presented by the employee. The manager should work closely with the agency's human resources advisors during the process of reviewing the options for consideration. The agency must determine that none of the options is appropriate before placing an employee on investigative leave or notice leave. In addition, agencies may require an employee who is telework-eligible—and has, in fact, been teleworking from home or another approved location—to telework as an alternative to placing the employee on investigative leave if telework will adequately reduce or eliminate the potential for harm.

Section 630.1503(b)(2)(i) sets forth the option of keeping the employee in a duty status by assigning the employee to duties in which the employee does not pose a threat. The duties should be at the same grade level as the employee's current position. The change in duties may also involve a change in the location where the employee works, subject to limitations related to the local commuting area. In considering this alternative in lieu of investigative leave, an agency may consider requiring an employee who participates in a telework program to perform duties from a telework site, as provided in § 630.1503(c). Assigning the employee to other duties (such as a detail assignment) or limiting the employee's access to intranet systems may enable the agency to maintain the safety and security of the workplace while continuing to benefit from the employee's skillset and abilities to further the agency's mission.

Section 630.1503(b)(2)(ii) sets forth the option of allowing the employee to voluntarily take leave (paid or unpaid) or other forms of paid time off, as appropriate under the rules governing each category of leave or paid time off. An employee who is under investigation or in a notice period may elect to take annual leave, sick leave (as appropriate), restored annual leave, or any leave earned under subchapter I of chapter 63, of the United States Code. The employee may also elect to use other paid time off in order to remain in a pay status, including paid time off that is about to expire, such as compensatory time off earned through overtime work, compensatory time off for travel, and credit hours under a flexible work schedule, as appropriate. An employee may elect to take leave or other paid time off for which the employee is eligible on an intermittent basis, as appropriate, during a period of investigative leave or notice leave.

Agencies may not require employees to take accrued leave or other time off as a substitute for investigative leave or notice leave, and may deny employee requests to use advanced leave.

Section 630.1503(b)(2)(iii) sets forth the option of carrying the employee in an absent without leave (AWOL) status, if the employee is absent from duty without approval. If the employee returns to a duty status, the AWOL would end. The agency could then place the employee on investigative leave or notice leave, as appropriate, only after the agency has analyzed the remaining considerations discussed in this section.

Section 630.1503(b)(2)(iv) sets forth the option of curtailing an employee's notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed. Under 5 CFR 752.404(d), this same option of curtailing the notice period is provided as an exception to the requirement for a 30 days' advance written notice period. Thus, this exception would shorten the length of the notice period, but the notice period would still not end until the adverse action is effectuated or until the employee is notified that no adverse action will be taken.

Section 630.1503(c) regulates that an agency may require an employee who is already a participant in the agency telework program, to perform duties similar to the duties that the employee performs at the normal worksite through telework as an alternative to placing an employee on investigative leave. This option to require telework is consistent with 5 U.S.C. 6502(c). (Section 6502(c) expressly links to the investigative leave law in 5 U.S.C. 6329b.

Section 6329b also includes references to section 6502(c) in subsections (d)(1)(E) and (f)(1)(F). Thus, OPM is incorporating provisions that implement the section 6502(c) requirements as part of its regulations of section 6329b.) An agency may require an employee to perform telework if the requirement for the employee to telework would not pose a threat to the employee or others, result in the destruction of evidence relevant to an investigation, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests. Furthermore, the agency must determine that (1) the employee is eligible to telework under the eligibility conditions found in 5 U.S.C. 6502(a) and (b) and (2) and is actually participating in the agency telework program and it would be appropriate for the employee to perform his or her duties through telework.

Under subsection (c) of 5 U.S.C. 6502, an agency may require telework in lieu of investigative leave if the employee is “eligible to telework under subsections (a) and (b)” of that section.

Section 6502(a) is titled “Telework Eligibility” and requires agencies to establish policies related to telework eligibility, subject to certain limitations in section 6502(a)(2). Section 6502(b) is titled “Participation,” but includes eligibility conditions in paragraph (b)(4). Paragraph (b)(4) states that, except in emergency conditions, telework shall not apply to any employee whose official duties require on a daily basis (every workday) (1) direct handling of secure materials that are inappropriate for telework or (2) on-site activity that cannot be handled at another location. OPM considers the requirement in section 6502(b)(2) to have a written telework agreement to be a procedural requirement related to participation, not an eligibility requirement.

However, based on our understanding of the intent of Congress, we are regulating that the authority to require telework under section 6502(c) applies only to an employee who has been a participant in the telework program during any portion of the 30-day period immediately preceding the commencement of investigative leave (or the commencement of required telework in lieu of the commencement of such leave). Any existing telework agreement will be superseded as necessary in order to comply with an agency's action to require telework under section 6502(c) and § 630.1503(c).

An agency requiring an employee to perform duties through telework is obligated to provide the employee appropriate work assignments and equipment. An agency may determine it is not appropriate for the employee to telework because it would require the employee to access agency files or to contact agency personnel, directly handle secure materials, or perform official duties that cannot be performed at an alternative worksite.

An employee who is required to telework should be issued a notification indicating that he or she is being directed to telework, and the notification should clarify that any telework agreement is superseded as necessary. Further, the notification should identify expectations and requirements during the period of required telework.

A telework-eligible employee required by an agency to telework under these conditions may be granted leave or other paid time off, as appropriate. An employee who refuses to telework when required by the agency under these conditions and is absent from telework duty without approval may be placed in AWOL status, consistent with agency policies.

Section 630.1503(d)(1) authorizes an agency to return an employee to duty at any time if the agency reassesses its determination to place the employee on investigative leave or notice leave. It also provides that an employee on investigative leave or notice leave must be prepared to report to work at any time during the employee's regularly scheduled tour of duty or must obtain approval of leave to eliminate the possible obligation to report to work if the employee believes that he or she would be unable to report promptly if called. While investigative leave is approved in increments of up to 30 workdays (see § 550.1504(b), (f), and (g)), an employee may be required to return to duty before an employee has reached the applicable 30-workday limit.

Section 630.1503(d)(2) applies to an employee on investigative leave. An agency may reassess its determination that the employee must be removed from the workplace based on the criteria in § 630.1503(b)(1) and its determination that the options in § 630.1503(b)(2) of this section are not appropriate. An agency may also reassess its previous determination to require or not require telework under paragraph (c) of this section.

Section 630.1503(d)(3) applies to an employee on notice leave. An agency may reassess its determination that the employee must be removed from the workplace based on the criteria in § 630.1503(b)(1) and its determination that the options in § 630.1503(b)(2) of this section are not appropriate.

Section 630.1503(d)(4) provides that, while an employee is on investigative leave or notice leave, the employee has an obligation to report promptly to an approved duty location if directed by his or her supervisor. Any failure to so report may be recorded as absent without leave, which can lead to disciplinary action. An employee who anticipates that he or she may be unavailable to report to duty promptly must request scheduled leave or paid time off in advance, in lieu of investigative leave. Given these regulatory requirements, an agency may consider adding language regarding these requirements in the notification regarding the employee's placement on investigative leave.

Section 630.1503(e) describes the baseline factors to be used in making a determination under § 630.1503(b)(1). (See the detailed description of those factors under the discussion of § 630.1503(b)(1) above.)

Section 630.1503(f) provides that agencies must use the same minimum charge increments for investigative and notice leave as it does for annual and sick leave under § 630.206.

Section 630.1504 explains that an employee under investigation will remain in a duty status, except when the agency determines that the employee's continued presence in the workplace meets the criteria described in § 630.1503(b)(1) and that none of the options under § 603.1503(b)(2) are appropriate.

Section 630.1504(a) explains that investigative leave may not commence until the employee's use of administrative leave under subpart N has reached the 10-workday calendar year limitation described in 5 U.S.C. 6329a(b)(1) and § 630.1404, as converted to hours under § 630.1404(b), and the agency determines that further investigation of the employee is necessary. The agency may conduct its investigation during the period of administrative leave provided under subpart N.

The limitation of 10 workdays of administrative leave under subpart N is a calendar year aggregate limit. If the 10-workday limit is reached in the calendar year in which the employee is placed on investigative leave, the period of investigative leave may continue into the next calendar year without the employee having to exhaust the 10 workdays of administrative leave permitted for use in the next calendar year. In other words, once triggered and commenced, investigative leave would continue as long as permitted without needing to again meet the requirement to exhaust 10-workday limit on administrative leave in a later calendar year. Agencies are expected to expeditiously work to resolve investigations so that the employee can return to duty or the agency can initiate an appropriate personnel action. If an agency determines that continued investigation of the employee is necessary after the 10-workday limitation of administrative leave has been reached, it must follow the procedures outlined in § 630.1503(b)—i.e., threat determination and consideration of options—before placing the employee on investigative leave for up to 30 workdays.

Section 630.1504(b) provides that an agency may place the employee in an initial period of investigative leave under § 630.1503(a)(1) for a period of not more than 30 workdays. An employee may be placed on investigative leave intermittently. In other words, a period of investigative leave may be interrupted by (1) on-duty service performed under paragraph (b)(2)(i) or (c) of § 630.1503, (2) leave or paid time off in lieu of such service under paragraph (b)(2)(ii) of § 630.1503, or (3) AWOL under paragraph (b)(2)(iii) of § 630.1503.

Section 630.1504(c) requires an agency to provide an employee a written explanation of his or her placement on investigative leave. The written explanation must describe the limitations on the leave placement, including the limitation on the duration of the investigative leave, and include notice that, at the conclusion of the period of investigative leave, the agency must take an action under § 630.1504(d). Furthermore, the agency must include notice that placement on investigative leave for 70 workdays or more is considered a “personnel action” in applying the prohibited personnel practices provisions at 5 U.S.C. 2302(b)(8)-(9).

Section 630.1504(d) provides that, not later than the day after the last day of an initial or extended period of investigative leave, an agency must take action to return the employee to regular duty status, take one or more of the actions under § 630.1503(b)(2), propose an adverse action against the employee as provided under law, or extend the period of investigative leave under § 630.1504(f) and (g). The requirement for agencies to take action at the conclusion of the period of investigative leave holds agencies accountable for the amount of paid leave provided to an employee under investigation for alleged misconduct and prevents situations where employees remain on paid leave for long periods of time without active investigation.

Section 630.1504(e) states that an investigation of an employee may continue after the expiration of the initial 30-workday period of investigative leave. Many factors and variables can require longer than 30 workdays for an agency to conduct an investigation, including but not limited to the nature and complexity of the issue(s), the number of witnesses, the availability of witnesses, and the coordination with other offices who have relevant evidence. If an agency requires more than 30 workdays to conduct its investigation, an extension may be approved by an authorized official. An employee under investigation is not required to be placed on investigative leave; therefore, the investigation may continue even if the employee is returned to regular duty status and is no longer on investigative leave. An agency may extend the period of investigative leave after the initial 30-workday period of investigative leave ends by following the procedures outlined in § 630.1504(f) and (g).

Section 630.1504(f)(1) allows an agency to extend the period of investigative leave for the employee—using increments of 30 workdays for each extension—when approved by the appropriate agency official upon determination that further time is required to conduct a full and fair investigation. It is conceivable that some investigations will be more involved and complex than others and require more than a 30-workday period of investigation; therefore, agencies must have the ability to extend an employee's period of investigative leave.

Section 630.1504(f)(2) provides that the total period of the extension of investigative leave under § 630.1504(f) may not exceed 90 workdays, which translates into 3 incremental extensions of 30 workdays. This 90-day limit applies to extensions of investigative leave associated with a single initial period of investigative leave. In practice, this means that an employee must first exhaust his or her 10 workdays of administrative leave under 5 U.S.C. 6329a, before the agency may provide an initial period of investigative leave for 30 workdays under § 630.1503(a)(1). If there is a continued need to keep the employee on investigative leave, an authorized official may approve extension of investigative leave in increments of 30 workdays, not to exceed a total 90 workdays for the extensions under § 630.1504(f).

Section 630.1504(f)(3)(i) permits an incremental 30-workday extension under paragraph (f)(1) only if the agency makes a written determination reaffirming that the employee must be removed from the workplace based on the criteria in § 630.1503(b)(1) and that the options in § 630.1503(b)(2) are not appropriate. In other words, the same criteria used for an initial placement on investigative leave must be used in approving any extension.

Section 630.1504(f)(3)(ii) provides that an incremental extension of investigative leave under paragraph (f)(1) of this section is permitted only if approved by the Chief Human Capital Officer (CHCO) of an agency (i.e., a CHCO designated or appointed under 5 U.S.C. 1401, or an equivalent officer), or the designee of the CHCO, after consulting with the investigator responsible for conducting the investigation of the employee. The CHCO approval provides fairness, transparency, and accountability while allowing agency management to be actively involved in the decision to extend investigative leave. Agencies will be responsible for identifying the factors the CHCO or designee must consider in granting an extension of investigative leave and reflecting those considerations in the agency's internal policies. Requests for extensions of investigative leave should be used sparingly (e.g., to accommodate complex investigative processes), and the CHCO or designee must act in a timely manner on such requests for an extension. Agencies should not submit automatic requests for extensions.

Section 630.1504(f)(3)(iii) provides that, in the case of an employee of an Office of Inspector General, an incremental extension under § 630.1504(f)(1) is permitted only if approved by the Inspector General or designee (rather than the CHCO or designee) after consulting with the investigator responsible for conducting the investigation of the employee. However, as an alternative, the Inspector General may request that the head of the agency designate an official of the agency within which the Office of Inspector General is located to approve an extension of investigative leave for employees in that office.

Section 630.1504(f)(4) requires that in delegating authority to a designated official to approve an incremental extension as described in § 630.1504(f)(3) of this section, an agency must pay heed to the designation guidance issued by the CHCO Council under 5 U.S.C. 6329b(c)(3), except that, in the case of approvals for an employee of an Office of Inspector General (OIG), an agency must pay heed to the designation guidance issued by the Council of the Inspectors General on Integrity and Efficiency under 5 U.S.C. 6329b(c)(4)(B). Adherence to this designation guidance ensures that the designee authorized to approve an extension of investigative leave is at a sufficiently high level within the OIG or the agency, as applicable, to make an impartial and independent determination regarding the extension. Agencies should be aware, however, that this involvement could potentially disqualify the individual from serving as the deciding official in any subsequent adverse action.

Section 630.1504(g) provides that after reaching the maximum number of extensions of investigative leave under § 630.1504(f), an official authorized to approve an extension under § 630.1504(f)(3) may approve further incremental extensions of investigative leave for periods of 30 workdays for each extension. Those approvals must be based on the same criteria used to approve the initial period of investigative leave and the extensions under § 630.1504(f). While agencies must be allowed to take the time needed to conduct a full and fair investigation of the employee, agencies are not permitted to keep an employee on investigative leave indefinitely. Therefore, not later than 5 business days after granting each further extension of investigative leave, the agency must submit a report documenting the further extension of investigative leave to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives, along with any other committees of jurisdiction.

The agency report must contain: (1) The title, position, office or agency subcomponent, job series, pay grade, and salary of the employee; (2) a description of the duties of the employee; (3) the reason the employee was placed on investigative leave; (4) an explanation as to why the employee meets the criteria described in § 630.1503(b)(1) and why the agency is not able to temporarily reassign the employee to different duties within the agency under § 630.1503(b)(2); (5) in the case of an employee required to telework under 5 U.S.C. 6502(c) during the investigation, the reasons that the agency required the employee to telework and the duration of the teleworking requirement; (6) the status of the investigation of the employee; (7) the certification by an investigative entity that additional time is needed to complete the investigation of the employee and an estimate of the amount of time that is necessary to complete the investigation of the employee; and (8) in the case of a completed investigation of the employee, the results of the investigation and the reason the employee remains on investigative leave. While not required to be included in the report, agencies should be prepared to explain their decision not to require a telework-eligible employee to telework during the period of investigation.

Section 630.1504(h) provides an agency may not further extend a period of investigative leave of an employee on or after the date that is 30 calendar days after the completion of the investigation of the employee by an investigative entity. After investigative leave is ended, the agency must take action under § 630.1504(d).

Section 630.1504(i) explains that, pursuant to new 5 U.S.C. 6329b(g), and for purposes of 5 U.S.C. chapter 12, subchapter II, and section 1221, and recourse to the Office of Special Counsel, placement on investigative leave under this subpart for a period of 70 workdays or more shall be considered a personnel action in applying the prohibited personnel practices provisions at 5 U.S.C. 2302(b)(8) or (9). Previously, an employee had no means to contest an agency decision to place him or her on administrative leave for a reason proscribed at 5 U.S.C. 2302(b)(8) or (9), given that the employee continued to receive pay. This provision provides independent review for employees who have been on investigative leave for at least 70 workdays and who allege conduct prohibited under 5 U.S.C. 2302(b)(8) or (9). Consistent with current case law, the placement on investigative leave or notice leave is not an adverse action.

Section 630.1504(j) explains the conversion of workdays to hours applicable in this subpart. The limitations based on workdays (i.e., the 30-workday increments in paragraphs (b), (f), and (g) of this section and the 70-workday limit in paragraph (i) of this section) must be converted to hours, taking into account the different workdays that can apply to employees under different work schedules.

Section 630.1504(j)(1) applies to a full-time employee (including an employee on a regular 40-hour basic workweek or a flexible or compressed work schedule under 5 U.S.C. chapter 61, subchapter II, but excluding an employee on an uncommon tour of duty). Based on an 8-hour workday, the 30-workday increment is converted to 240 hours. The 30-workday increment is the equivalent of 6 calendar weeks of investigative leave. The 70-workday limit is converted to 560 hours.

Section 630.1504(j)(2) applies to a full-time employee with an uncommon tour of duty under § 630.210. The 30-workday increment is converted to three times the number of hours in the biweekly uncommon tour of duty (or the average biweekly hours for uncommon tours for which the biweekly hours vary over an established cycle). The 30-workday increment is the equivalent of 6 calendar weeks of investigative leave. The 70-workday limit is converted to a number of hours derived by multiplying the hours equivalent of 30 workdays (for a given uncommon tour) times the ratio of 70 divided by 30.

Section 630.1504(j)(3) applies to a part-time employee. The calendar year limit is prorated based on the number of hours in the officially scheduled part-time tour of duty established for purposes of charging leave when absent (e.g., for a part-time employee who has an officially scheduled half-time tour of 40 hours in a biweekly pay period, the 30-workday increment is converted to 120 hours, which is half of 240 hours (the 30-workday increment for full-time employees)). The proration is consistent with the proration of annual and sick leave required under 5 U.S.C. 6302(c).

Section 630.1505(a) provides that notice leave may commence only after an employee has received written notice of a proposed adverse action. There is no requirement that the employee exhaust his or her 10 workdays of administrative leave under 5 U.S.C. 6329a(b) and § 630.1405 before the employee may be placed on notice leave.

Section 630.1505(b) provides that the placement of an employee on notice leave shall be for a period not longer than the duration of the notice period.

Section 630.1505(c) provides that, if an agency places an employee on notice leave, the agency must provide the employee a written explanation regarding the placement of the employee on notice leave. The written explanation must provide information on the employee's notice period and include a statement that the notice leave will be provided only during the notice period.

Section 630.1506(a) requires an agency to maintain an accurate record of the placement of an employee on investigative leave or notice leave by the agency. The specific information that must be kept in agency records is identified, consistent with the requirements in 5 U.S.C. 6329b(f). OPM may add additional recordkeeping requirements as it deems appropriate.

Section 630.1506(b)(1) requires an agency to make a record kept under § 630.1506(a) available, upon request, to any committee of jurisdiction, to OPM, to the Government Accountability Office, and as otherwise required by law. However, § 630.1506(b)(2) provides that any action to make a record available is subject to other applicable laws, Executive orders, and regulations governing the dissemination of sensitive information related to national security, foreign relations, or law enforcement matters.

Section 630.1506(c)(1) requires agencies to properly record the granting of investigative leave and notice leave. In agency data systems and in data reports submitted to OPM, an agency must record investigative leave and notice leave under 5 U.S.C. 6329b and this subpart as categories of leave separate from other types of leave. The leave must be recorded as either investigative leave or notice leave, as applicable.

GAO found in its 2014 report that agency policies on paid administrative leave differ across agencies, including the way agencies record paid administrative leave. These proposed regulations provide clear guidance on the use of administrative leave, which, in turn, will promote more consistent recording and documentation of various categories of administrative leave. In order to accurately measure the use of paid administrative leave across Federal agencies, agencies must have a consistent method of documenting the use of administrative leave. Specifically, agencies must properly record administrative leave and distinguish it from leave that is otherwise authorized by other statutory provisions, such as military leave, bone marrow/organ donor leave, and court leave. Without proper recording of leave taken, it is difficult to determine how much administrative leave is actually being used and to hold agencies accountable for its use.

Therefore, for recording purposes, OPM is creating two new categories to record leave granted under 5 U.S.C. 6329b: (1) Investigative leave and (2) notice leave. Investigative leave and notice leave must be recorded on an hourly basis (i.e., hours or fractions of an hour), not to exceed the limitations outlined in § 630.1504.

Section 630.1506(c)(2) requires agencies to provide information to the Government Accountability Office as that office requires in order to submit reports to specified Congressional committees required under section 1138(d)(2) of Public Law 114-328. These reports must be submitted not later than 5 years after December 23, 2016, and every 5 years thereafter.

Section 630.1601(a) addresses the purpose of the proposed regulations on weather and safety leave—i.e., to implement 5 U.S.C. 6329c, which created a new category of paid leave that applies when weather and safety conditions prevent employees from safely traveling to or safely performing work at an approved location due to an act of God, a terrorist attack or other applicable conditions. Unlike the previous administrative leave used for weather-related incidents, OPM now has the authority to prescribe regulations to carry out the new statutory provisions, including the appropriate uses and the proper recording of weather and safety leave. Additionally, § 630.1601(b) provides that subpart P applies to employees, as defined at 5 U.S.C. 2105, who are employed in executive branch agencies, but does not apply to intermittent employees.

Section 630.1602 provides definitions of various terms used in subpart P. The definitions align with the definitions found in the law.

The statute at 5 U.S.C. 6329c(b)(1) uses the term “act of God.” We define act of God for purposes of subpart P as an act of nature such as hurricanes, tornadoes, floods, wildfires, earthquakes, landslides, snowstorms, and avalanches. While this definition covers only natural disasters, weather and safety leave may also be authorized for other conditions that prevent employees from safely traveling to or safely performing work at an approved location (for example, agency-specific emergencies such as a building fire, power outage, or burst water pipes).

The statute at 5 U.S.C. 6329c(a)(1) defines “agency” as an Executive agency of the Federal Government as described in 5 U.S.C. 105, including the Department of Veterans Affairs, but excluding the Government Accountability Office. The definition of agency in § 630.1602 follows the statutory definition except that we did not note the inclusion of the Department of Veterans Affairs since that agency is already included by way of 5 U.S.C. 105. We also state that when “agency” is used in the context of an agency making determinations or taking actions, it means the agency head or management officials who are authorized (including by delegation) to make a given determination or take a given action.

We define employee as an individual who is covered by subpart P, as provided in § 630.1601(b) and (c).

We define participating in a telework program to refer to a telework-eligible employee who has an established arrangement with his or her agency under which the employee is approved to participate in the agency telework program, including on a routine or situational basis. Thus, an employee who teleworks on a situational basis is considered to be continuously participating in a telework program even if there are extended periods during which the employee does not perform telework. This term is used in § 630.1605(a).

We define telework site as a location where an employee is authorized to perform telework as authorized under 5 U.S.C. chapter 65, such as an employee's home.

We define weather and safety leave as paid leave provided under the authority of 5 U.S.C. 6329c and subpart P.

Section 630.1603 addresses the conditions under which an agency may authorize weather and safety leave—i.e., a severe weather event or other emergency that prevents an employee from safely traveling to or safely performing work at an approved work location.

Section 630.1604(a) addresses OPM's responsibility to prescribe regulations and guidance related to the appropriate use of weather and safety leave, including guidance on dismissal/closure policies and procedures related to such leave. Such guidance will deal not only with when it is appropriate to provide weather and safety leave, but also when other workplace flexibility options (including other leave, telework, and flexible work schedules) should be utilized instead of weather and safety leave. In the past, OPM has issued dismissal/closure policies and procedures focused on the Washington, DC, area where OPM, through longstanding practice, has exercised responsibility for issuing operating status announcements in emergency situations. (This responsibility involves taking the lead in coordinating with municipal and regional officials—e.g., National Weather Service, the District of Columbia, suburban governments, Departments of Transportation, public transportation providers, public utilities, and law enforcement. This coordination is designed to avoid dramatic disruptions of the highway and mass transit systems.) After issuing final regulations on weather and safety leave, OPM intends to issue Governmentwide guidance on dismissal/closure policies and procedures to assist agencies in complying with the weather and safety leave regulations and to promote the use of consistent terminology throughout the Government.

Also, § 630.1604(a) states that when OPM issues any operating status announcement for the Washington, DC, area, the specific policies and procedures communicated with that announcement must be consistent with OPM regulations and Governmentwide guidance on closures and dismissals.

Section 630.1604(b) describes agency responsibilities to (1) establish policies and procedures related to weather and safety leave that are consistent with OPM regulations and guidance and (2) use terminology required by OPM-issued Governmentwide guidance for any operating status announcements issued by an agency (for a specific location).

Section 630.1605 provides exclusions to the granting of weather and safety leave when an employee is eligible for and participating in an agency telework program or is designated as an “emergency employee.”

• Telework employees

Section 630.1605(a)(1) states that agencies may not grant weather and safety leave to employees who are participating in a telework program and who are not prevented from safely working at an approved telework site. This implements the statutory provision at 5 U.S.C. 6329c(b) that prescribes that weather and safety leave may be provided when employees are prevented from safely traveling to or safely performing work “at an [i.e., any] approved location.” Employees who are eligible to telework are typically not prevented from performing work at their approved telework site (e.g., home) because they are not required to work at their regular worksites. Accordingly, when employees have the ability to telework, they are not considered to be prevented from performing work at an approved location. This regulatory condition for the granting of weather and safety leave is not contingent on the condition being included in the employee's telework agreement.

Section 630.1605(a)(2) permits exceptions to the bar on granting weather/safety leave for teleworkers when, in the agency's judgment, the employee was not able to prepare for teleworking and is otherwise not able to perform productive work at the telework site (e.g., due to lack of portable work or equipment problems). An agency may permit an exception to the bar on granting weather/safety leave for teleworkers when an employee is prepared to telework but is prevented from safely doing so by conditions applicable to the telework site. However, the agency may decide not to approve weather and safety leave to an employee who can safely travel to or safely perform work at a regular worksite even if it is a scheduled telework day for the employee.

Section 630.1605(a)(3) requires the agency to evaluate whether the weather or safety conditions could be reasonably anticipated and whether the employee took reasonable steps (within the employee's control) to prepare for telework (such as by bringing any needed equipment and work home). If the employee failed to make the necessary preparations, the agency may not grant weather and safety leave. In this case, the employee's only options would be to use other appropriate paid leave or paid time off, or leave without pay.

• Emergency employees

Section 630.1605(b) provides that agencies may designate emergency employees as necessary for critical agency operations and for whom the general granting of weather and safety leave generally does not apply. Agencies may designate different emergency employees for the various emergencies that may occur, but should designate these employees well in advance of the possible emergencies, to the extent practicable. Emergency employees are expected to report to the agency-designated worksite unless the agency determines that it is unsafe to do so, in which case the agency may allow the employee to telework or work at another location. An agency may also determine that the circumstances justify granting weather and safety leave to emergency employees.

Section 630.1606(a) provides that the minimum charge increment for weather and safety leave is the same as the agency uses for annual and sick leave.

Section 630.1606(b) states that weather and safety leave may be granted only for hours within an employee's tour of duty established for the purposes of charging annual and sick leave, which for full-time employees is either the 40-hour basic workweek, the basic work requirement for employees on a flexible or compressed work schedule, or an uncommon tour of duty under § 630.210.

Section 630.1606(c) states that agencies may not grant weather and safety leave for hours during which employees are on other preapproved leave (paid or unpaid) or paid time off. It also provides that an agency should not approve an employee's request to cancel preapproved leave or paid time off if the agency determines that the request is primarily for the purpose of obtaining weather and safety leave.

This section provides the recordkeeping and reporting requirements regarding weather and safety leave. Agencies are required to keep accurate records on the number of weather and safety leave hours granted to employees and to report this data to OPM in the manner directed.

The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and 12866.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will apply only to Federal agencies and employees.

For the reasons stated in the preamble, OPM proposes to amend part 630 of title 5 of the Code of Federal Regulations as follows:

Background

On March 10, 2005, the Department of the Treasury (the Treasury Department) and the IRS published a notice of proposed rulemaking (REG-163314-03) in the Federal Register (70 FR 11903) containing proposed regulations under sections 332, 351, and 368 (2005 Proposed Regulations). The 2005 Proposed Regulations generally would have provided that the non-recognition rules in subchapter C of chapter 1 of subtitle 1 of the Code do not apply unless there is an exchange (or, in the case of section 332, a distribution) of net value (the net value requirement). The 2005 Proposed Regulations also provided that section 332 would apply only if the recipient corporation receives some payment for each class of stock it owns in the liquidating corporation. Finally, the 2005 Proposed Regulations provided guidance on the circumstances in which (and the extent to which) creditors of a corporation are treated as proprietors of the corporation in determining whether continuity of interest is preserved in a potential reorganization (Creditor Continuity of Interest).

On December 12, 2008, the Treasury Department and the IRS adopted the Creditor Continuity of Interest provisions of the 2005 Proposed Regulations as final regulations (TD 9434) published in the Federal Register (73 FR 75566). Minor portions of the 2005 Proposed Regulations that reflected statutory changes to sections 332 and 351 were adopted as final regulations as part of a Treasury decision adopting final regulations under sections 334(b)(1)(B) and 362(e)(1) (TD 9759), published in the Federal Register (81 FR 17066) on March 28, 2016. The Treasury Department and the IRS have decided to withdraw the remainder of the 2005 Proposed Regulations.

The Treasury Department and the IRS are of the view that current law is sufficient to ensure that the reorganization provisions and section 351 are used to accomplish readjustments of continuing interests in property held in modified corporate form. With respect to section 332, the holdings of H.K. Porter Co. v. Commissioner, 87 T.C. 689 (1986), Spaulding Bakeries Inc. v. Commissioner, 27 T.C. 684 (1957), aff'd, 252 F.2d 293 (2d Cir., 1958), H.G. Hill Stores, Inc. v. Commissioner, 44 B.T.A. 1182 (1941), Rev. Rul. 2003-125, 2003-2 C.B. 1243, Rev. Rul. 68-602, 1968-2 C.B. 135, Rev. Rul. 68-359, 1968-2 C.B. 161, and Rev. Rul. 59-296, 1959-2 C.B. 87, continue to reflect the position of the Treasury Department and the IRS.

The principal author of this withdrawal notice is Jean Broderick of the Office of Associate Chief Counsel (Corporate). However, other personnel from the Treasury Department and the IRS participated in its development.

I. General Information What should I consider as I prepare my comments for EPA?

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

2. Tips for preparing your comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register volume, date, and page number);

• Follow directions and organize your comments;

• Explain why you agree or disagree;

• Suggest alternatives and substitute language for your requested changes;

• Describe any assumptions and provide any technical information and/or data that you used;

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced;

• Provide specific examples to illustrate your concerns, and suggest alternatives;

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and,

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

On January 28, 2013, the State of Utah requested that the EPA approve a repeal and reenactment of R307-202, Emission Standards: General Burning. The rule was changed to add an “Applicability” section that clarifies that the rule only applies to incorporated communities under the authority of a county or municipal fire authority. Additionally, the 30-day burning windows allowing the burning of material covered under R307-202 were eliminated in the amendment because they were a source of localized air quality impairment. This request was made by several local fire chiefs with support from the Utah State Fire Marshal. Language was also added to the rule that states that no person shall burn under R307-202 when the director of the Division of Air Quality (DAQ) issues a public announcement of a mandatory no-burn period.

The changes made to R307-202 include the following five amendments:

(1) Fire marshals were previously permitted to establish a spring 30-day burn window between March 1 and May 30. The rule amendment expanded the spring burning window for the entire period from March 1 to May 30 for Washington, Kane, San Juan, Iron, Garfield, Beaver, Piute, Wayne, Grand, and Emery counties. The burn window was expanded because fire marshals reported adverse localized air quality conditions within the 30-day burn window because the window was actually compressed to a few days where the Clearing Index was over 500. The Utah DAQ relies on a metric called the Clearing Index, an Air Quality/Smoke Dispersal Index, to determine when ventilation and dispersion are adequate for general burning and as an input for other air quality decisions throughout Utah. Clearing Index values below 500 are considered poor ventilation and open burning is restricted under these conditions. Expanding the burn period provides added days where the Clearing Index is above 500, thereby improving air quality during the spring burn period.

(2) The spring 30-day burn window has been expanded to the entire burn window from March 30 to May 30 for the remaining portions of the state. The window expansion follows the same rational as item 1 above, that serves to improve air quality during spring burning. The calendar difference between southern and northern counties (covered in items 1 and 2, respectively) is due to climatic differences across the state.

(3) The fall burn window for counties that are in attainment of the national ambient air quality standards (NAAQS) for particulate matter (PM2.5 and/or PM10) were permitted to burn from September 15 to October 30. The burn window has been expanded from September 15 to November 15 because the frost dates for those counties are later than October 30. This window is however subject to annual approval by the State Forester.

(4) A new fall burn window has been established for counties that are in nonattainment for the NAAQS for particulate matter (PM2.5 and/or PM10) from September 15 to October 30. This period is before the inversion season in northern counties. The burn window was requested by fire marshals in affected counties. This window is however subject to annual approval by the State Forester.

(5) An applicability section was added clarifying that the rule applies to general burning within incorporated communities under the authority of a county or municipal fire authority. This new section was added to address comments received from the State Forester during the public comment period held by the State of Utah. The State Forester was concerned that the public would be confused regarding who has the authority to issue burn permits within different portions of the state. While statutory authority has not changed from when the rule was initially promulgated, this new section was only added for clarity purposes.

The proposed rule revisions capture Utah's restrictions and exemptions for open burning of pollutants to ensure compliance with the Clean Air Act (CAA) NAAQS for PM2.5 and PM10 consistent with 40 CFR part 50. As part of the most recent January 28, 2013 submittal, Utah DAQ provide a demonstration that the changes made to the General Burning rule would not result in adverse air quality conditions; consistent with the requirements under Section 110(l) of the CAA. The EPA agrees with the analysis completed by Utah and that the rule changes submitted on January 28, 2013, will not adversely impact air quality. The EPA conducted a further review of the effect of an expanded burn window on resulting air quality in nonattainment areas and a copy of this analysis is included in the administrative record. The additional time periods available for burning include the full March 1 to May 30 period and an additional fall burn window of September 15 to October 30. Through a review of air quality and clearing index data from DAQ's Web site, the EPA finds that although elevated 24-hr PM2.5 and PM10 can occur during these periods, they do not typically occur on days where the clearing index is greater than 500. Elevated PM10 has been measured on days within the burn window with a clearing index above 500. However, these events are a result of high winds and resulting re-entrained dust impacting PM10 concentrations, conditions under which burn permits would not be issued due to safety concerns. Therefore, the EPA finds that it is unlikely burning would occur in the expanded burn window on days with elevated PM.

Additionally, on July 8, 2015, the State of Utah requested further revisions to R307-202 (Emission Standards: General Burning) that allows Native American tribes to conduct ceremonial burning during restricted burning days when conducted by a “Native American spiritual advisor” as defined by the rule. The Utah DAQ submitted a supplementary analysis to the EPA on May 9, 2017 demonstrating that the exemption allowing ceremonial burning during restricted burning days would not result in adverse air quality conditions consistent with the requirements under CAA Section 110(l). The analysis included a calculation of emissions associated with the expected frequency of ceremonial burning, volume of combustible material, and using the appropriate AP-42 emission factors. The emissions for PM2.5 and PM10 associated with ceremonial burning were estimated to be 0.012 tons per year. To give these values context, from the most recent NEI, emissions of total PM10 and PM2.5 for all sources in Salt Lake County in 2014 are 18,165 tons and 5,902 tons, respectively. The estimated impact of ceremonial burning is therefore less than 0.0001% of the total PM inventory, and therefore the EPA finds that this exemption would not result in adverse air quality.

The EPA is proposing to approve Utah's January 28, 2013 SIP submission, which repeals and reenacts the General Burning provisions in R307-202 with the amendments discussed in Section II. Additionally, the EPA is proposing approval of Utah's July 8, 2015 revisions, which exempts ceremonial burning conducted by a “Native American spiritual advisor” during restricted burn days.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements; this proposed action 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, Oct. 4, 1993);

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

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

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

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

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

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

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

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

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

On September 27, 2016, we published a rule titled “Promulgation of Air Quality Implementation Plans; State of Arkansas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan” (Arkansas Regional Haze FIP or FIP) addressing certain requirements of the Regional Haze Rule and interstate visibility transport.1 Among other things, the final FIP established NOX emission limits for White Bluff, Independence, and Flint Creek, and required compliance with these emission limits within 18 months of the effective date of our final action (i.e., April 27, 2018).

The State of Arkansas, through the Arkansas Department of Environmental Quality (ADEQ), submitted a petition to the EPA dated November 22, 2016, seeking reconsideration and an administrative stay of specific portions of the final Arkansas Regional Haze FIP pursuant to section 307(d)(7)(B) of the CAA and section 705 of the Administrative Procedure Act (APA). Petitions dated November 23, 2016, seeking reconsideration and administrative stay of the FIP were also submitted by Entergy Arkansas Inc., Entergy Mississippi Inc., and Entergy Power LLC (collectively “Entergy”) and the Arkansas Electric Cooperative Corporation (AECC), which are owners of Flint Creek, White Bluff, and Independence. The Energy and Environmental Alliance of Arkansas (EEAA), which is an ad-hoc association that has members who own or operate Flint Creek, White Bluff, and Independence, also submitted a petition dated November 28, 2016, seeking reconsideration and administrative stay of the FIP.2 The petitioners raised a number of issues, including EPA's decision to shorten the compliance dates for the NOX emission limits for Flint Creek, White Bluff, and Independence from the proposed 3 years to 18 months in the final FIP without specifically requesting comment on the shorter 18-month compliance dates. Entergy, AECC, and EEAA also stated in their petitions for reconsideration and administrative stay that the 18-month NOX compliance dates required by the FIP are infeasible and do not allow sufficient time for the owners and operators of the facilities to develop, plan, obtain prevention of significant deterioration (PSD) permits, install, tune, and test the low NOX burner control equipment that is needed to comply with the NOX emission limits.

In a letter dated April 14, 2017, EPA announced the convening of a proceeding to reconsider the appropriate compliance dates for the NOX emission limits for Flint Creek, White Bluff, and Independence.3 EPA determined that the petitioners raised objections to the NOX compliance timeframes that were impracticable to raise during the comment period and that are of central relevance to the rule under 307(d)(7)(B) of the Clean Air Act (CAA). EPA also published a notice in the Federal Register on April 25, 2017, administratively staying the effectiveness of the 18-month NOX compliance dates in the FIP for a period of 90 days.4 In that action, we also stated that reconsideration would allow for additional public comment on the 18-month NOX compliance deadlines. We are proposing to revise the NOX compliance deadlines for the 5 affected units as part of the reconsideration process and requesting comment on our proposed decision to extend these dates by 21 months.

We also note that in a letter dated June 7, 2017, the State committed to develop and submit to EPA this summer a Regional Haze SIP revision to replace our FIP, which would include NOX requirements for the EGUs. Our action today revising the compliance dates for NOX does not preclude the State from submitting and EPA acting on a SIP revision addressing that element. As we have previously stated,5 we remain committed to work with the State on a SIP revision that would replace our FIP. We are proposing a revision to our FIP at this time to address the impending April 27, 2018 NOX compliance deadlines required by the FIP for Flint Creek, White Bluff, and Independence, prior to the anticipated SIP submittal by the State and to provide the owners of the units with regulatory certainty regarding their compliance deadlines.

We have carefully reviewed and taken into consideration the petitions for reconsideration and administrative stay submitted by the State of Arkansas, Entergy, AECC, and EEAA regarding the 18-month compliance date for the NOX emission limits at Flint Creek Unit 1, White Bluff Units 1 and 2, and Independence Units 1 and 2. We have determined that the petitions for reconsideration raise certain arguments related to the 18-month NOX compliance dates that have merit, provide site-specific information regarding the infeasibility of an 18-month compliance date, and warrant proposing a revision to the FIP with regard to the 18-month NOX compliance deadlines.

The State of Arkansas, Entergy, AECC, and EEAA stated in their petitions that EPA proposed a 3-year NOX compliance deadline for the affected units and that we did not indicate in the proposed rulemaking that we were considering a shorter compliance date. Additionally, the petitioners stated that EPA failed to provide an opportunity to comment on the owners' ability to comply with a shortened compliance date. EEAA pointed out that if EPA would have afforded the owners and operators adequate notice and opportunity to comment on the shortened NOX compliance deadlines, they would have provided comment and supporting information concerning why an 18-month compliance deadline is inadequate. The petitioners also argued that because we did not provide notice and an opportunity to comment on shortened compliance deadlines, the 18-month NOX compliance deadlines are not a logical outgrowth of the FIP proposal.

We agree with the petitioners that our FIP proposal did not specifically state that we were soliciting public comment on shorter NOX compliance dates for the five units. We recognize that the wording in our proposed rulemaking was not clear with respect to this issue, but our intent was to solicit public comment on all aspects of our FIP proposal. This includes even those aspects of our FIP proposal for which we did not specifically state that we were soliciting public comment. However, in consideration of the petitioners' comments, we are proposing to extend the NOX compliance dates for the 5 affected units and providing notice and opportunity for public comment on the proposed revisions to the compliance dates. Other issues raised by the petitioners concerning the inadequacy of an 18-month NOX compliance deadline are discussed in the subsections that follow.

Entergy's petition, which was incorporated by reference by both AECC and EEAA, asserted that the comments submitted by environmental groups,6 on which we based our decision to shorten the NOX compliance deadlines for the five units, relied on an expert report and a 10-year-old vendor association report that did not take into account site-specific considerations that could affect the installation and deployment time of low NOX burner controls.7 EEAA also asserted that the 10-year old vendor association report did not take into account permitting considerations, a company's internal project development and approval process, site-specific factors, or reliability concerns. Entergy and EEAA asserted that the 18-month compliance deadline for installation of the low NOX burner and separated overfire air equipment at White Bluff and Independence is not feasible because it does not allow the owners and operators sufficient time to prepare and submit an air permit application, obtain the permit through the public notice and participation process, comply with the affected companies' internal planning and prudence review procedures, complete a request for proposal process, select a vendor, procure equipment, schedule outages, install the control equipment, conduct equipment tuning and testing, and train staff on the operation of the control equipment. AECC also asserted in its petition that the 18-month NOX compliance deadlines for the five units are extremely difficult, if not impossible, to meet and are unprecedented.

Entergy and EEAA pointed out that the installation of the NOX control equipment requires that the company first develop a prevention of significant deterioration (PSD) permit application for each facility and submit to ADEQ. Entergy's petition explains that the processing of the permit application by ADEQ is expected to take no less than 6—8 months, but could take longer depending on a number of factors outside of the company's control. The State's permitting process involves a public notice and participation process, and the length of time it takes to issue the permit is dependent upon the volume and complexity of the comments received as well as on ADEQ's resources. Additionally, Entergy pointed out that any member of the public could appeal issuance of the final permit to the Arkansas Pollution Control and Ecology Commission and, absent additional regulatory proceedings, could result in an automatic stay of the permit pending resolution of the appeal. Entergy stated in its petition that it has obtained the necessary PSD permit for installation of the NOX control equipment at White Bluff, but is still in the process of developing the PSD permit application for Independence.

Entergy and EEAA also explained in their petitions that the affected companies have internal planning procedures that affect their schedule for installation of the NOX controls. These internal planning procedures include risk and prudence reviews, as well as a process for obtaining competitive bids from multiple vendors. Entergy asserted that these internal planning procedures are in place to attempt to ensure cost recovery, and that circumventing these procedures places the owners at risk of making investments that the Arkansas Public Service Commission later determines are not in the public interest and therefore not eligible for cost recovery. Entergy explained that once a vendor is selected, the company must negotiate the final contract and that it would then take the vendor approximately 8 months to design and fabricate the equipment. Each unit will then have to be taken offline for approximately 6-7 weeks for installation of the control equipment. Entergy explained that after installation of the control equipment, the company must conduct boiler tuning, performance verification testing, a final phase of fine-tuning of the equipment, staff training, and must validate operating configurations to determine which combinations result in the best load profile. In its petition for reconsideration, Entergy stated that in light of these site-specific considerations, the owners and operators need 3 years to install the control equipment and comply with their NOX emission limits. Entergy and EEAA stated that requiring the affected units to comply with shorter NOX compliance deadlines would force the owners to undertake an accelerated schedule that involves non-compliance with company prudence procedures and increases the cost and financial risk incurred by the owners, with no guarantee that the units will actually be able to meet their NOX emission limits by the shorter compliance date.

AECC asserted in its petition that a 3-year NOX compliance deadline is as expeditiously as practicable for the affected units, especially taking into consideration that the four units at White Bluff and Independence are within the same regional transmission organization system that would be affected by outages related to installation of the NOX control equipment. AECC also asserted that a NOX compliance schedule less than 3 years would require an accelerated construction schedule such that the controls could not be optimally scheduled to minimize the cost of replacement energy and system reliability could potentially be compromised. EEAA expressed similar concerns, stating that an 18-month compliance schedule for the 5 affected units is inadequate for the installation of the controls, in particular when required for multiple units that represent a significant amount of baseload generating capacity within the State.

We agree with the petitioners that the comments submitted by environmental groups on which we based our decision to shorten the NOX compliance deadlines for the five units relied on an expert report and a 10-year-old vendor association report that did not take into account site-specific considerations that could affect the installation and deployment time of low NOX burner equipment. Since our proposed rulemaking did not specifically state a range of compliance dates that we were soliciting comment on for the NOX emission limits for the five units, we accept the owners' claims that they did not anticipate that we might finalize shorter compliance dates and therefore did not comment on site-specific factors that affect their ability to meet shorter compliance dates. We also acknowledge that the owners of the affected units raise a valid point that the compliance date needs to account for the PSD permitting process required for the installation of the NOX control equipment, including the possibility of delays in the regulatory permitting process that could affect the owners' ability to meet an 18-month compliance deadline.

We acknowledge that we were not aware of and thus could not take into consideration the companies' internal planning and prudence review procedures when we shortened the NOX compliance deadlines. We find that the steps and processes Entergy, AECC, and EEAA discussed in their petitions that must be taken by the owners and operators of the affected units in order to install and begin operating the NOX control equipment are reasonable and warrant proposing to extend the NOX compliance dates for the affected units. It is not our intent to require a compliance timeframe that could force the owners to expedite the planning, installation, and deployment of the NOX control equipment in such a way that would require omitting company planning procedures and other important processes the owners and operators have in place for projects such as this. We also believe it is prudent to establish compliance deadlines that allow the installation of the NOX controls to be optimally scheduled so as to not compromise system reliability, especially taking into consideration that four of the affected units are within the same regional transmission organization system. Entergy, AECC, and EEAA asserted that 3 years are needed to develop, plan, permit, install, tune, and test the equipment at the affected units, which is consistent with the compliance deadline we proposed in our April 8, 2015 FIP proposal.8 Additionally, as we noted in the “Background” section of this proposed rulemaking, we published a notice in the Federal Register on April 25, 2017, administratively staying the effectiveness of the 18-month NOX compliance deadlines in the FIP for a period of 90 days as part of our reconsideration process for the NOX compliance deadlines.9 To also account for the 90 day stay of the effectiveness of these NOX compliance deadlines, we are proposing to extend the NOX compliance deadlines for Flint Creek Unit 1, White Bluff Units 1 and 2, and Independence Units 1 and 2 by a total of 21 months to January 27, 2020. We believe this is consistent with the requirement under the CAA section 169A(b)(2) and (g)(4) and the Regional Haze Rule under section 51.308(e)(1)(iv) to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.

After carefully considering the petitions for reconsideration of the NOX compliance deadlines submitted by Arkansas, Entergy, AECC, and EEAA, we are proposing to revise the Arkansas Regional Haze FIP by extending the NOX compliance deadlines for Flint Creek, White Bluff, and Independence. After carefully considering the information presented by the petitioners and to account for the 90 day stay of the effectiveness of these NOX compliance deadlines, we are proposing to extend the NOX compliance deadlines for Flint Creek Unit 1, White Bluff Units 1 and 2, and Independence Units 1 and 2 by a total of 21 months to January 27, 2020. Upon finalization of this proposed action, the reconsideration process for the 18-month NOX compliance deadlines will conclude.

The revisions to the Arkansas Regional Haze FIP we are proposing at this time are limited to the NOX compliance dates for the five aforementioned units. We are not proposing to revise any other portions of the FIP in this proposed action. As such, we are not accepting public comment at this time on any issues unrelated to the NOX compliance dates for these units. However, we note that the reconsideration process under CAA section 307(d)(7)(B) for other portions of the FIP, as discussed in our April 14, 2017 letter, is ongoing.10 If EPA determines through the ongoing reconsideration process that revisions to other parts of the FIP are warranted, we will propose such revisions in a future rulemaking action.

Title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:

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

b. Tips for Preparing Your Comments. When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

2. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

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

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

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

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

Under the 1990 amendments to the CAA, Salt Lake and Utah Counties were designated nonattainment for PM10 and classified as moderate areas by operation of law as of November 15, 1990 (56 FR 56694, 56840; November 6, 1991). The air quality planning requirements for moderate PM10 nonattainment areas are set out in subparts 1 and 4, part D, Title I of the Act. As described in section 110 and 172 of the Act, areas designated nonattainment based on failure to meet the PM10 NAAQS are required to develop SIPs with sufficient control measures to expeditiously attain and maintain the NAAQS.

On July 8, 1994, the EPA approved the PM10 SIP for Salt Lake and Utah Counties (59 FR 35036). The SIP included a demonstration of attainment and various control measures, including emission limits at stationary sources. Because emissions of SO2 and NOX contribute significantly to the PM10 problem in the area, the SIP included limits on emissions of SO2 and NOX in addition to emissions of PM10.

On September 26, 1995, the EPA designated Ogden City as nonattainment for PM10 and classified the area as moderate under section 107(d)(3) of the Act (60 FR 38726; July 28, 1995). Subsequently, the EPA approved a clean data determination for the Ogden City nonattainment area on January 7, 2013 (78 FR 885), suspending obligations to submit certain requirements of part D, subparts 1 and 4 of the Act for so long as the area continues to attain.

On July 3, 2002 Utah submitted SIP revisions adopting rule R307-110-10, which incorporated revisions to portions of Utah's SIP Section IX, Part A, and rule R307-110-17, which incorporated revisions to portions of Utah's SIP Section IX Part H. These revisions were approved by the EPA on December 23, 2002 (67 FR 78181). The revisions to Utah's SIP Section IX Part H removed several stationary sources subject to reasonably available control technology (RACT) requirements from the initial list of RACT sources in the Utah County nonattainment area, based on SIP threshold limits for PM10, NOx, and SO2 of 100 tpy, 200 tpy, and 250 tpy, respectively. In doing so, the number of major stationary sources included in the SIP for the Utah County nonattainment area was reduced from 14 sources to 5 sources. Notably, one of the sources retained in Utah's 2002 SIP was Geneva Steel, which underwent a protracted closure and had largely ceased operations by 2004. In 2005, the PacifiCorp—Lake Side Power Plant was constructed on a portion of the former Geneva Steel facility, utilizing banked emission credits from Geneva Steel's closure.

On January 4, 2016, Utah submitted SIP revisions to R307-110-17 titled “Section IX, Control Measures for Area and Point Sources, Part H, Emission Limits” and revisions to Subsection IX.H.1-4. The titles for Subsection IX.H.1-4 include: (1) General Requirements: Control Measures for Area and Point Sources, Emission Limits and Operating Practices, PM10 Requirements; (2) Source Specific Emission Limitations in Salt Lake County PM10 Nonattainment/Maintenance Area; (3) Source Specific Emission Limitations in Utah County PM10 Nonattainment/Maintenance Area; and (4) Interim Emission Limits and Operating Practices. Additionally, on January 19, 2017, Utah submitted revisions to Subsection IX.H.1-4. Further discussion of the revisions to R307-110-17 and Subsection IX.H.1-4 can be found below.

1. Section R307-110-17 incorporates the amendments to Section IX.H into state rules, thereby making them effective as a matter of state law. This is a ministerial provision and does not by itself include any control measures.

1. Subsection IX.H.1. General Requirements: Control Measures for Area and Point Sources, Emission Limits and Operating Practices, PM10 Requirements. This section establishes general requirements for record keeping, reporting, and monitoring for the stationary sources subject to emissions limits under subsections IX.H.2-4. Additionally, this section establishes general refinery requirements, addressing limitations on emitting units common to the refineries in the nonattainment areas. These general refinery requirements include limits at fluid catalytic cracking units, limits on refinery fuel gas, restrictions on liquid fuel oil consumption, requirement for sulfur removal units, and requirements for hydrocarbon flares.

2. Subsection IX.H.2. Source Specific Emission Limitations in Salt Lake County PM10 Nonattainment/Maintenance Area. This section establishes specific emission limitations for 14 sources. These sources are Big West Oil Refinery; Bountiful City Light and Power; Central Valley Reclamation Facility; Chevron Products Company; Hexcel Corporation; Holly Refining and Marketing Company; Kennecott Utah Copper (KUC): Bingham Canyon Mine; KUC: Copperton Concentrator; KUC: Power Plant and Tailings Impoundment; KUC: Smelter and Refinery; PacifiCorp Energy: Gadsby Power Plant; Tesoro Refining & Marketing Company; University of Utah; and West Valley Power Holdings, LLC. Major stationary sources were identified based on their potential to emit (PTE) of 100 tons per year (tpy) or more of PM10, NOx, or SO2. A summary of the current emission limits, for retained sources, is outlined in Table 1 below, and a summary of the proposed new emission limits is outlined in Table 2 below.

3. Subsection IX.H.3. Source Specific Emission Limitations in Utah County PM10 Nonattainment/Maintenance Area. This section establishes specific emission limitations for 6 sources. These sources are Brigham Young University (BYU); Geneva Nitrogen Inc.; PacifiCorp Energy: Lake Side Power Plant; Payson City Corporation: Payson City Power; Provo City Power: Power Plant; and Springville City Corporation: Whitehead Power Plant. Major stationary sources were identified based on their PTE of 100 tons per year (tpy) or more for PM10, NOX, and SO2. It is important to note that the SIP threshold of 100 tpy for all three pollutants is less than the previous SIP major stationary source thresholds Utah established in its 2002 SIP revision. The 2002 SIP revision had established major stationary source thresholds for PM10, NOX, and SO2 at 100 tpy, 200 tpy, and 250 tpy, respectively. By lowering the SIP threshold to 100 tpy for all three pollutants, three sources are now added into the SIP. These sources are BYU, Payson City Power and PacifiCorp Energy—Lake Side Power Plant. PacifiCorp Energy—Lake Side Power Plant sits on a portion of the former Geneva Steel site. A summary of the current emission limits, for retained sources, is outlined in Table 3 below, and a summary of the proposed new emission limits are outlined in Table 4 below.

4. Subsection IX.H.4. Interim Emission Limits and Operating Practices. R307-110-17 Section IX, Control Measures for Area and Point Sources, Part H, Emission Limits. This section establishes interim emission limits for sources whose new emission limits under Subsections IX.H.2 and 3 are based on controls that are not currently installed, with the provision that all necessary controls needed to meet the emission limits under Subsection IX.H.2 and IX.H.3 shall be installed by January 1, 2019. A summary of the proposed interim emission limits is outlined in Table 5 below.

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

Regional haze is visibility impairment that is produced by a multitude of sources and activities that are located across a broad geographic area and emit fine particulates (PM2.5) (e.g., sulfates, nitrates, organic carbon (OC), elemental carbon (EC), and soil dust), and their precursors (e.g., sulfur dioxide (SO2), nitrogen oxides (NOX), and in some cases, ammonia (NH3) and volatile organic compounds (VOCs)). Fine particle precursors react in the atmosphere to form PM2.5, which impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color, and visible distance that can be seen. PM2.5 can also cause serious adverse health effects and mortality in humans; it also contributes to environmental effects such as acid deposition and eutrophication.

Data from the existing visibility monitoring network, “Interagency Monitoring of Protected Visual Environments” (IMPROVE), shows that visibility impairment caused by air pollution occurs virtually all the time at most national parks and wilderness areas. In 1999, the average visual range in many Class I areas (i.e., national parks and memorial parks, wilderness areas, and international parks meeting certain size criteria) in the western United States was 100-150 kilometers, or about one-half to two-thirds of the visual range that would exist without anthropogenic air pollution. In most of the eastern Class I areas of the United States, the average visual range was less than 30 kilometers, or about one-fifth of the visual range that would exist under estimated natural conditions. CAA programs have reduced some haze-causing pollution, lessening some visibility impairment and resulting in partially improved average visual ranges.

CAA requirements to address the problem of visibility impairment continue to be implemented. In Section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the prevention of any future, and the remedying of any existing, man-made impairment of visibility in 156 national parks and wilderness areas designated as mandatory Class I Federal areas. On December 2, 1980, the EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., “reasonably attributable visibility impairment.” These regulations represented the first phase in addressing visibility impairment. The EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Congress added section 169B to the CAA in 1990 to address regional haze issues, and the EPA promulgated regulations addressing regional haze in 1999. The Regional Haze Rule revised the existing visibility regulations to add provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300-309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands. States were required to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often under-controlled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress toward the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” (BART). Larger “fossil-fuel fired steam electric plants” are one of these source categories. Under the Regional Haze Rule, states are directed to conduct BART determinations for “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. The evaluation of BART for electric generating units (EGUs) that are located at fossil-fuel fired power plants having a generating capacity in excess of 750 megawatts must follow the “Guidelines for BART Determinations Under the Regional Haze Rule” at appendix Y to 40 CFR part 51 (hereinafter referred to as the “BART Guidelines”). Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides for greater progress towards improving visibility than BART.

On June 13, 2008, Louisiana submitted a SIP to address regional haze (2008 Louisiana Regional Haze SIP or 2008 SIP revision). We acted on that submittal in two separate actions. Our first action was a limited disapproval 1 because of deficiencies in the State's regional haze SIP submittal arising from the remand by the U.S. Court of Appeals for the District of Columbia of the Clean Air Interstate Rule (CAIR). Our second action was a partial limited approval/partial disapproval 2 because the 2008 SIP revision met some but not all of the applicable requirements of the CAA and our regulations as set forth in sections 169A and 169B of the CAA and 40 CFR 51.300-308, but as a whole, the 2008 SIP revision strengthened the SIP. On August 11, 2016, Louisiana submitted a SIP revision to address the deficiencies related to BART for four non-EGU facilities. We proposed to approve that revision on October 27, 2016.3

On February 10, 2017, Louisiana submitted a SIP revision intended to address the deficiencies related to BART for EGU sources (February 2017 Louisiana Regional Haze SIP or February 2017 SIP revision). We proposed approval of that SIP revision as it pertains to all of the BART-eligible EGUs in the State on May 19, 2017, except for Nelson, which we address herein.4

On June 20, 2017, Louisiana submitted a SIP revision with a request for parallel processing, specifically addressing the BART requirements for Nelson. (June 2017 Louisiana Regional Haze SIP or June 2017 SIP revision). This revision, along with the Nelson portion of the February 20, 2017 SIP revision, are the subject of this proposed action. Parallel processing of the June 2017 SIP revision means that, at the same time Louisiana is completing the corresponding public comment and rulemaking process at the state level, we are proposing action on it. Because Louisiana has not yet finalized the June 2017 SIP revision that we are parallel processing, we are proposing to approve this SIP revision in parallel with Louisiana's rulemaking activities. If changes are made to the State's proposed rule after the EPA's notice of proposed rulemaking, such changes must be acknowledged in the EPA's final rulemaking action. If the changes are significant, then the EPA may be obligated to withdraw our initial proposed action and re-propose. If there are no changes to the parallel-processed version, EPA would proceed with final rulemaking on the version finally adopted by Louisiana and submitted to EPA, as appropriate after consideration of public comments.

Nelson is located in Westlake, Calcasieu Parish, Louisiana. The nearest Class I areas are Breton National Wilderness Area in Louisiana, located 264 miles east of the facility and Caney Creek Wilderness Area in Arkansas, located 286 miles north of the facility.

In our partial disapproval and partial limited approval of the 2008 Louisiana Regional Haze SIP, we approved the LDEQ's identification of 76 BART-eligible sources, which included Nelson.5 Nelson is a fossil-fuel steam electric power generating facility and operates three BART-eligible steam generating units: Unit 4, Unit 4 Auxiliary Boiler, and Unit 6.

Because Louisiana's 2008 Regional Haze SIP relied on CAIR as a BART alternative for EGUs, the submittal did not include a determination of which BART-eligible EGUs were subject to BART. On May 19, 2015, we sent a CAA Section 114 letter to the Nelson BART-eligible source in Louisiana. In that letter, we noted our understanding that the source was actively working with the LDEQ to develop a SIP. However, in order to be in a position to develop a FIP should that be necessary, we requested information regarding the BART-eligible sources, including Nelson. The Section 114 letter required the source to conduct modeling to determine if the source was subject to BART, and included a modeling protocol. The letter also requested that a BART analysis be performed in accordance with the BART Guidelines for Nelson if determined to be subject to BART. We worked closely with the BART-eligible facility and with the LDEQ to this end, and all the information we received from the facility was also sent to the LDEQ. As a result, the LDEQ submitted the February and June SIP revisions addressing BART for Nelson. The LDEQ provides a BART determination for each of the three units at the source for all visibility impairing pollutants except NOX.6 Once a list of BART-eligible sources still in operation within a state has been compiled, the state must determine whether to make BART determinations for all of them or to consider exempting some of them from BART because they are not reasonably anticipated to cause or contribute to any visibility impairment in a Class I area. The BART Guidelines present several options that rely on modeling analyses and/or emissions analyses to determine if a source is not reasonably anticipated to cause or contribute to visibility impairment in a Class I area. A source that is not reasonably anticipated to cause or contribute to any visibility impairment in a Class I area is not “subject to BART,” and for such sources, a state need not apply the five statutory factors to make a BART determination.7 Sources that are reasonably anticipated to cause or contribute to any visibility impairment in a Class I area are subject to BART.8 For each source subject to BART, 40 CFR 51.308(e)(1)(ii)(A) requires that the LDEQ identify the level of control representing BART after considering the factors set out in CAA section 169A(g)(2). To determine which sources are anticipated to contribute to visibility impairment, the BART Guidelines state “you can use CALPUFF or other appropriate model to estimate the visibility impacts from a single source at a Class I area.”9

The preamble to the BART Guidelines advise that, “for purposes of determining which sources are subject to BART, States should consider a 1.0 deciview 10 change or more from an individual source to `cause' visibility impairment, and a change of 0.5 deciviews to `contribute' to impairment.” 11 They further advise that “States should have discretion to set an appropriate threshold depending on the facts of the situation,” and describes situations in which states may wish to exercise that discretion, mainly in situations in which a number of sources in an area are all contributing fairly equally to the visibility impairment of a Class I area. In Louisiana's 2008 Regional Haze SIP submittal, the LDEQ used a contribution threshold of 0.5 dv for determining which sources are subject to BART, and we approved this threshold in our previous action.12

The BART Guidelines recommend that the 24-hour average actual emission rate from the highest emitting day of the meteorological period be modeled, unless this rate reflects periods of start-up, shutdown, or malfunction. The maximum 24-hour emission rate (lb/hr) for NOX and SO2 from the baseline period (2000-2004) for the source is identified through a review of the daily emission data for each BART-eligible unit from the EPA's Air Markets Program Data.13 Because daily emissions are not available for PM, maximum 24-hr PM emissions are estimated based on permit limits, maximum heat input, and AP-42 factors, and/or stack testing. EPA conducted CALPUFF modeling and provided it to LDEQ to determine whether Nelson causes or contributes to visibility impairment in nearby Class I areas (see Appendix F of the June 2017 SIP revision). See the CALPUFF Modeling TSD for additional discussion on modeling protocol, model inputs, and model results for this portion of the screening analysis. The CALPUFF modeling establishes that Nelson's visibility impacts are above LDEQ's chosen threshold of 0.5 dv.

The BART-eligible units at the Nelson facility have visibility impacts greater than 0.5 dv. Therefore, Nelson is subject to BART and must undergo a five-factor analysis. See our CALPUFF Modeling TSD for further information.

We note that, in addition to CALPUFF modeling, Appendix D of the February 2017 SIP revision includes the results of CAMx modeling 14 performed by Trinity consultants for Entergy. This modeling purports to demonstrate that the baseline visibility impacts from Nelson 15 are significantly less than the 0.5 dv threshold. However, this modeling was not conducted in accordance with the BART Guidelines or a previous modeling protocol we developed for the use of CAMx modeling for BART screening,16 and does not properly assess maximum baseline impacts. Therefore, we agree with LDEQ's decision in the February 2017 SIP revision to not rely on this CAMx modeling.17 See the CAMx Modeling TSD for a detailed discussion. We also note that, for the largest emission sources in Louisiana, such as the Nelson facility, we performed our own CAMx modeling while following the BART Guidelines and the modeling protocol to provide additional information on visibility impacts and impairment and address possible concerns with utilizing CALPUFF to assess visibility impacts at Class I areas located at large distances from the emission sources. Our CAMx modeling indicates that Nelson has a maximum impact 18 of 2.22 dv at Caney Creek, with 31 days out of the 365 days modeled exceeding 0.5 dv, and 9 days exceeding 1.0 dv. See the CAMx Modeling TSD for additional information on the EPA's CAMx modeling protocol, inputs, and model results.

The SUPPLEMENTARY INFORMATION section is arranged as follows:

The EPA is proposing to approve the NJDEP's request for delegation of authority to implement and enforce a Federal plan and to adhere to the terms and conditions prescribed in the Memorandum of Agreement (MOA) signed between the EPA and the NJDEP, as further explained below. The NJDEP requested delegation of authority of the Federal plan for existing applicable Sewage Sludge Incineration (SSI) units constructed on or before October 14, 2010. See 40 CFR part 62, subpart LLL. The Federal plan was promulgated by the EPA to implement emission guidelines (see 40 CFR part 60, subpart MMMM) pursuant to sections 111(d) and 129 of the Clean Air Act (CAA). The purpose of this delegation is to acknowledge the NJDEP's ability to implement a program and to transfer primary implementation and enforcement responsibility from the EPA to the NJDEP for existing applicable sources of SSI units. While the NJDEP is delegated the authority to implement and enforce the SSI Federal plan, nothing in the delegation agreement shall prohibit the EPA from enforcing the SSI Federal plan.

The EPA is proposing this action to:

• Give the public the opportunity to submit comments on the EPA's proposed action, as discussed in the ADDRESSES section of this Notice;

• Fulfill a goal of the CAA to place state governments in positions of leadership for air pollution prevention and control; and

• Allow the NJDEP to implement and enforce a Federal plan promulgated by the EPA that implements emission guidelines pursuant to sections 111(d) and 129 of the CAA.

On October 12, 2016, the NJDEP submitted to the EPA a request for delegation of authority from the EPA to implement and enforce the Federal plan for existing SSI units. The EPA prepared the MOA that defines the policies, responsibilities, and procedures by which the Federal plan will be administered by both the NJDEP and the EPA, pursuant to 40 CFR part 62, subpart LLL for SSI units. The MOA is the mechanism for the transfer of responsibility from the EPA to the NJDEP.

Both the EPA and the NJDEP signed the MOA in which the State agrees to the terms and conditions of the MOA and accepts responsibility to implement and enforce the policies, responsibilities and procedures of the SSI Federal plan. The transfer of authority to the NJDEP became effective upon signature by the NJDEP on January 24, 2017.

Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities and municipal solid waste landfills (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type and the EPA has established emission guidelines (EG) for such existing sources. A designated pollutant is any pollutant for which no air quality criteria has been issued or which is not included on a list published under section 108(a) (national ambient air quality standards) or section 112 (hazardous air pollutants) of the CAA, but emissions of which would be subject to a standard of performance for new stationary sources under section 111(b). In addition, section 129 of the CAA also requires the EPA to promulgate EG for solid waste incineration units that emit specific air pollutants or a mixture of air pollutants. These pollutants include organics (dioxins and dibenzofurans), carbon monoxide, metals (cadmium, lead and mercury), acid gases (hydrogen chloride, sulfur dioxide and oxides of nitrogen), particulate matter and opacity (as appropriate).

On March 21, 2011 (76 FR 15372), the EPA promulgated NSPS and EG for SSI units, 40 CFR part 60, subparts LLLL and MMMM, respectively. The designated facility to which the EG applies is existing SSI units, as stipulated in subpart MMMM, that commenced construction on or before October 14, 2010. See 40 CFR 60.5060 for details.

Pursuant to section 129 of the CAA, state plan requirements must be “at least as protective” as the EG and become federally enforceable upon approval by the EPA. The procedures for adoption and submittal of state plans are codified in 40 CFR part 60, subpart B. For states that fail to submit a plan, the EPA is required to develop and implement a Federal plan within two years following promulgation of the EG. The EPA implementation and enforcement of the Federal plan is viewed as an interim measure until states assume their role as the preferred implementers of the EG requirements stipulated in the Federal plan. Accordingly, the EPA encourages states to develop their own plan, or request delegation of the Federal plan, as the NJDEP has done.

The EPA evaluated the NJDEP's request for delegation of the SSI Federal plan pursuant to the provisions of the SSI Federal plan and the EPA's Delegation Manual.1 Section 62.15865 of the SSI Federal plan establishes that a state may meet its CAA section 111(d)/129 obligations by submitting an acceptable written request for delegation of the Federal plan that includes the following requirements: (1) A demonstration of adequate resources and legal authority to administer and enforce the Federal plan; (2) an inventory of affected SSI units, an inventory of emissions from affected SSI units, and provisions for state progress reports (see items under § 60.5015(a)(1), (2) and (7) from the SSI EG); (3) certification that the hearing on the state delegation request, similar to the hearing for a state plan submittal, was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission; and (4) a commitment to enter into a MOA with the Regional Administrator that sets forth the terms, conditions and effective date of the delegation and that serves as the mechanism for the transfer of authority. Under the EPA's Delegation Manual, item 7-139, the Regional Administrator is authorized to delegate implementation and enforcement of sections 111(d)/129 Federal plans to state environmental agencies. The requirements and limitations of a delegation agreement are defined in item 7-139. The Regional Administrator may consider delegating authority to implement and enforce Federal plans to a state provided the following conditions are met: (1) The state does not already have an EPA approved State plan; and (2) items (1) and (4) as described above from section 62.15865 of the SSI Federal plan.

NJDEP has met all of the EPA's delegation requirements as described above. The reader may view the NJDEP's letter to the EPA requesting delegation and the MOA signed by both parties at www.regulations.gov, identified by Docket ID Number EPA-R02-OAR-2017-0132.

The EPA has evaluated the NJDEP's submittal for consistency with the CAA, EPA regulations, and EPA policy. The NJDEP has met all the requirements of the EPA's guidance for obtaining delegation of authority to implement and enforce the SSI Federal plan. The NJDEP entered into a MOA with the EPA and it became effective on January 24, 2017. Accordingly, the EPA proposes to approve the NJDEP's request dated October 12, 2016 for delegation of authority of the Federal plan for existing SSI units. The EPA will continue to retain certain specific authorities reserved to the EPA in the SSI Federal plan and as indicated in the MOA (e.g., authority to approve major alternatives to test methods or monitoring, etc.).

Under the CAA, the Administrator is required to approve a State plan submission that complies with the provisions of CAA sections 111(d) and 129(b)(2) and applicable Federal regulations. 42 U.S.C. 7411(d) and 7429(b)(2); 40 CFR 62.02(a). Thus, in reviewing State plan submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this Federal Register.

For additional information, please see the direct final rule published in the “Rules and Regulations” section of this Federal Register.

A. Why are revisions to State programs necessary?

States that have received final authorization from the EPA pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask the EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations in Title 40 of the Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273, and 279.

Washington State's hazardous waste management program was initially approved on January 30, 1986 and became effective on January 31, 1986. As explained in Section E below, it has been revised and reauthorized numerous times since then. On January 26, 2017, EPA received the State's most recent authorization revision application. This authorization revision application requests federal authorization for Washington's Rules and Standards for Hazardous Waste, effective as of December 31, 2014, and seeks to revise its federally-authorized hazardous waste management program to include Federal hazardous waste regulations promulgated through July 1, 2013.

The EPA has reviewed Washington's application to revise its authorized program and proposes to determine that it meets all of the statutory and regulatory requirements established by RCRA, as amended. Therefore, with respect to these revisions we are proposing to grant Washington final authorization to operate its hazardous waste program with the changes described in the authorization revision application. Washington will continue to have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian country (18 U.S.C. 1151)) with the exception of the non-trust lands within the exterior boundaries of the Puyallup Indian Reservation (also referred to as the “1873 Survey Area” or “Survey Area”) located in Tacoma, Washington (see section “J” below for full description) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA, and which are not less stringent than existing requirements, take effect in authorized states before the states are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Washington, including issuing permits, until the State is granted authorization to do so.

If Washington is authorized for these changes, a person in Washington subject to RCRA must comply with the authorized State requirements in lieu of the corresponding Federal requirements. Additionally, such persons will have to comply with any applicable Federal requirements, such as, HSWA regulations issued by the EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized State-issued requirements. Washington continues to have enforcement responsibilities under its State hazardous waste management program for violations of this program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, the authority to:

• Conduct inspections;

• Require monitoring, tests, analyses, or reports;

• Suspend, terminate, modify or revoke permits;

• Abate conditions that may present an imminent and substantial endangerment to human health and the environment; and

• Enforce RCRA requirements and take enforcement actions regardless of whether the State has taken its own actions.

The action to approve these revisions would not impose additional requirements on the regulated community because the regulations for which Washington has requested federal authorization are already effective under State law and are not changed by the act of authorization.

If the EPA receives comments on this proposed action, we will address those comments in our final action. You may not have another opportunity to comment. If you want to comment on this proposed authorization, you must do so at this time.

Washington initially received final authorization on January 30, 1986, effective January 31, 1986 (51 FR 3782), to implement the State's hazardous waste management program. The EPA granted authorization for changes to Washington's program on September 22, 1987, effective on November 23, 1987 (52 FR 35556); August 17, 1990, effective October 16, 1990 (55 FR 33695); November 4, 1994, effective November 4, 1994 (59 FR 55322); February 29, 1996, effective April 29, 1996 (61 FR 7736); September 22, 1998, effective October 22, 1998 (63 FR 50531); October 12, 1999, effective January 11, 2000 (64 FR 55142); April 11, 2002, effective April 11, 2002 (67 FR 17636); April 14, 2006, effective June 13, 2006 (71 FR 19442); October 30, 2006 effective December 29, 2006 (71 FR 63253) and June 18, 2010 effective July 28, 2010 (75 FR 44144) .

The EPA is proposing to authorize revisions to Washington's authorized program described in Washington's official program revision application, submitted to the EPA on January 26, 2017 and deemed complete by the EPA on February 23, 2017. The EPA proposes to determine, subject to public review and comment, that Washington's hazardous waste management program revisions as described in the January 23, 2017 State's authorization revision application satisfy the requirements necessary to qualify for final authorization. Regulatory revisions that are less stringent than the Federal program requirements and those regulatory revisions that are broader in scope than the Federal program requirements are not authorized. Washington's authorized hazardous waste management program, as amended by these provisions, remains equivalent to, consistent with, and is no less stringent than the Federal RCRA program. Therefore, we are proposing to authorize the State for the following program changes as identified in Table 1 and Table 2 below.

The provisions listed in Table 1 and Table 2 are from the Washington Administrative Code (WAC) and are analogous to the RCRA regulations as indicated in the Tables. The RCRA regulations that the State incorporated by reference are those as published in 40 CFR parts 260 through 265, 268, 270, and 279, as of July 1, 2013, unless otherwise noted. Table 1 identifies new State rules that the EPA is authorizing as equivalent or more stringent than the Federal program. Table 2 identifies State-initiated changes to previously authorized State provisions. (Note: in Table 2 some State provisions have no direct Federal analog but are related to particular paragraphs, sections, or parts of the Federal hazardous waste regulations) The referenced analogous State authorities were State adopted and effective as of December 31, 2014.

Under RCRA section 3009, the EPA may not authorize State rules that are less stringent than the Federal program. Any state rules that are less stringent do not supplant the Federal regulations. State rules that are broader in scope than the Federal program requirements are allowed but are not authorized. State rules that are equivalent to, and State rules that are more stringent than the Federal program may be authorized, in which case they are enforceable by the EPA.

This section does not discuss all the program differences, because in most instances Washington writes its own version of the Federal hazardous waste rules. Persons must consult Tables 1 and 2, in Section F, for the specific State regulations that the EPA is proposing to authorize. This section discusses rules of particular interest where the EPA proposes to find that the State program is more stringent and will be authorized. Table 2 above indicates all the rules that the EPA determined to be more stringent than the federal rules. The section below also discusses an example of a rule where the State program is broader in scope and cannot be authorized. Certain portions of the Federal program are not delegable to the states because of the Federal government's special role in foreign policy matters and because of national concerns that arise with certain decisions. The EPA does not delegate import/export functions. Under RCRA regulations found in 40 CFR part 262, the EPA will continue to implement requirements for import/export functions. However, the State rules (WAC 173-303-230) reference the EPA's export and import requirements, and the State has amended these references to include those changes promulgated in the Federal Rule on Corrections to Errors in the Code of Federal Regulations (71 FR 40254, July, 7, 2006). Additional information regarding the EPA's analysis concerning the State's rules that are more stringent and/or broader in scope than the federal rules can be found in the docket.

States are allowed to seek authorization for state requirements that are more stringent than Federal requirements. The EPA has authority to authorize and enforce those parts of a state's program the EPA finds to be more stringent than the Federal program. This section does not discuss each more stringent finding made by the EPA, but persons can locate such findings by consulting Table 1 in Section F, and by reviewing the docket for these rules. This action proposes to authorize the State program for each more stringent requirement.

a. Satellite Accumulation—On December 20, 1984 (49 FR 49568), the Federal Satellite Accumulation rule was promulgated. The State adopted a satellite accumulation rule in 1986 and adopted a revised rule on December 8, 1993. On December 18, 2014, the State adopted another revision to WAC 173-303-200(2) with all instances of “per waste stream” removed for consistency with the Federal rule at 40 CFR 262.34(c). The State rule has an additional provision for satellite accumulation requirements whereby the State can require additional management requirements on a case-by-case basis, which renders the State rule more stringent than the Federal rule. Additional details regarding the State's adoption of the revised satellite accumulation rule are available in the docket.

b. Academic Laboratory Generator Standards—The State's Academic Laboratories Generator Standards contain more stringent requirements than the corresponding Federal rules (73 FR 72912, December 1, 2008).

i. WAC 173-303-235(4)(a), (4)(b)(ii), (5)(a), and (5)(b)(ii), are more stringent because the State requires small quantity generators to obtain EPA/state identification numbers, whereas the Federal rules at 40 CFR 262.203(a) and (b)(ii) and 40 CFR 262.204(a) and (b)(2) exempt the comparable Conditionally Exempt Small Quantity Generators (CESQGs).

ii. WAC 173-303-235(4)(b) and (5)(b) are more stringent than 40 CFR 262.203(b) and 262.204(b) introductory paragraphs due to the State requirement for small quantity generators to complete the entire Washington State Dangerous Waste Site Identification form, whereas the Federal rules exempt CESQGs from filling in a site identification number.

iii. WAC 173-303-235(7)(a)(i), 235(9)(d)(i)(A) and 235(9)(d)(ii)(A) require accumulation start dates and full container dates to be attached to the containers rather than, at a minimum, be associated with them as required by 40 CFR 262.206(a)(1) and 262.208(d)(1)(i).

iv. WAC 173-303-235(14)(a)(iv) requires eligible academic entities to maintain records for five years after laboratory cleanouts rather than three years as required in 40 CFR 262.213(a)(4).

On December 12, 2010 (75 FR 79304), the Federal Academic Laboratories Generator Standards Technical Corrections rules were promulgated. The State's rules at WAC 173-303-235(15)(a)(i) and (b)(i) are more stringent than the Federal rules because they require the accumulation date to appear on the container label, whereas the Federal rules at 40 CFR 262.214(a)(1) and (b)(1) allow the information to be associated with, but not necessarily placed on, the container. Additional details regarding the more stringent State provisions associated with the State's adoption of the Federal Academic Laboratories Generator Standards are available in the docket.

c. Characteristic of Reactivity—On January 31, 1986 (51 FR 3782), the State received authorization for its dangerous waste identification rules including WAC 173-303-090(7) Characteristic of reactivity. On January 18, 2010 (75 FR 12989), the Federal rule at 40 CFR 261.23(a)(8) was revised to update the forbidden explosives regulation under 40 CFR 261.23 Characteristic of reactivity. The State revised the corresponding WAC 173-303-090(7)(a)(viii), but included Division 1.5 explosives (refer to the US Department of Transportation Hazardous Materials Class 1 explosives chart) not included in the Federal rule. As a result, the State's rule is more stringent than the Federal rule. Additional details regarding the more stringent State provisions associated with forbidden explosives under the characteristic of reactivity rule are available in the docket.

d. Exception Reporting—On January 18, 2010 (75 FR 12989), the Federal Hazardous Waste Technical Corrections and Clarifications rules were promulgated. Under 40 CFR 262.42(c)(2), the 35/45/60 day timeframes for exception reporting begin the date the waste was accepted by the initial transporter forwarding the hazardous waste from the designated facility to the alternate facility. The State rule at WAC 173-303-220(2)(e)(ii) is more stringent because it does not have a 60-day window for Medium Quantity Generators (equivalent to Federal Small Quantity Generators) to submit exception reports to the Washington State Department of Ecology. Additional details regarding the more stringent State provisions associated with Exception reports are available in the docket.

e. Independent Qualified Registered Professional Engineers—On December 18, 2014, the State adopted rule changes to require Independent Qualified Registered Professional Engineers (IQRPEs) to certify certain activities. The revised State rules at WAC 173-303-200(1)(b)(iv), 200(4)(a)(iv)(A)(III), 400(3)(c)(xxii)(B), 64690, 650(4)(c), 650(5)(d)(ii)(B), 665(2)(a)(i), 806(4)(d)(v), 806(4)(e)(iii)(A)(I), and 806(4)(h)(ii)(A)(I) are more stringent than corresponding Federal rules at 40 CFR 262.34(a)(1)(iv), 262.34(g)(4)(i)(C), 265.1101(c)(3)(iii), 264.554 (IBR, 045(1)), 264.226(c), 264.227(d)(2)(ii), 264.301(a)(1), 270.17(d), 270.18(c)(1)(i), and 270.21(b)(1)(i). Additional details regarding the more stringent State provisions associated with IQRPE requirements are available in the docket.

The State has added a time limit for special wastes that are stored at transfer stations under WAC 173-303-073(2)(e)(v) in this rule proposal. The federal rules do not regulate these special wastes which are state only wastes and defined at WAC 173-303-040; therefore, the regulation of these wastes is broader in scope than the federal rules. As noted above, broader in scope rules are not authorized by the EPA.

Washington will continue to issue permits for all the provisions for which it is authorized and will administer the permits it issues. Permits issued by EPA prior to authorizing Washington for these revisions would continue in force until the effective date of the State's issuance or denial of a State hazardous waste management permit, at which time, the EPA would modify the existing EPA permit to expire at an earlier date, terminate the existing EPA permit, or allow the existing EPA permit to otherwise expire by its terms, except for those facilities located in Indian Country. The EPA will not issue new permits or new portions of permits for provisions for which Washington is authorized after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which Washington is not yet authorized.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. This is done by referencing the authorized State rules in 40 CFR part 272. The EPA is reserving the amendment of 40 CFR part 272, subpart WW for this authorization of Washington's program revisions until a later date.

The EPA's proposed decision to authorize the Washington hazardous waste management program does not include any land that is, or becomes after the date of this authorization, “Indian Country,” as defined in 18 U.S.C. 1151, with the exception of the non-trust lands within the exterior boundaries of the Puyallup Indian Reservation (also referred to as the “1873 Survey Area” or “Survey Area”) located in Tacoma, Washington. The EPA retains jurisdiction over “Indian Country”. Effective October 22, 1998 (63 FR 50531, September 22, 1998) the State of Washington was authorized to implement the State's federally-authorized hazardous waste management program on the non-trust lands within the 1873 Survey Area of the Puyallup Indian Reservation. The authorization did not extend to trust lands within the reservation. The EPA retains its authority to implement RCRA on trust lands and over Indians and Indian activities within the 1873 Survey Area.

This proposed rule seeks to revise the State of Washington's authorized hazardous waste management program pursuant to section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. This proposed rule complies with applicable executive orders and statutory provisions as follows:

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant”, and therefore subject to OMB review and the requirements of the EO. The EO defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the EO. The EPA has determined that this proposed rule is not a “significant regulatory action” under the terms of EO 12866 and is therefore not subject to OMB review.

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., because this proposed rule does not establish or modify any information or recordkeeping requirements for the regulated community and only seeks to authorize the pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing, and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in Title 40 of the CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA), generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business defined by the Small Business Administration's size regulations at 13 CFR part 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities because the proposed rule will only have the effect of authorizing pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law. The EPA continues to be interested in the potential impacts of the proposed rule on small entities and welcomes comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the rule an explanation why the alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under Section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments or the private sector. Similarly, the EPA has also determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, today's proposed rule is not subject to the requirements of Sections 202 and 203 of the UMRA.

This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among various levels of government, as specified in EO 13132 (64 FR 43255, August 10, 1999). This rule proposes to authorize pre-existing State rules. Thus, EO 13132 does not apply to this proposed rule. In the spirit of EO 13132, and consistent with the EPA policy to promote communications between the EPA and State and local governments, the EPA specifically solicits comment on this proposed rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in EO 13175 because the EPA retains its authority over Indian Country. Thus, EO 13175 does not apply to this proposed rule. The EPA specifically solicits additional comment on this proposed rule from tribal officials.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it proposes to approve a state program.

This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under EO 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), (Pub. L. 104-113, 12(d)) (15 U.S.C. 272), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This proposed rule does not affect the level of protection provided to human health or the environment because this rule proposes to authorize pre-existing State rules which are equivalent to, and no less stringent than existing federal requirements.

Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347, as amended by Pub. L. 114-113), added Title XXXIII to the Public Health Service (PHS) Act,1 establishing the WTC Health Program within the Department of Health and Human Services (HHS). The WTC Health Program provides medical monitoring and treatment benefits to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery, and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, at the Pentagon, and in Shanksville, Pennsylvania (responders), and to eligible persons who were present in the dust or dust cloud on September 11, 2001, or who worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area (survivors).

All references to the Administrator of the WTC Health Program (Administrator) in this notice mean the Director of the National Institute for Occupational Safety and Health (NIOSH) or his designee.

Pursuant to section 3312(a)(6)(B) of the PHS Act, interested parties may petition the Administrator to add a health condition to the List in 42 CFR 88.15 (2017). Within 90 days after receipt of a petition to add a condition to the List, the Administrator must take one of the following four actions described in section 3312(a)(6)(B) of the PHS Act and 42 CFR 88.16(a)(2): (1) Request a recommendation of the STAC; (2) publish a proposed rule in the Federal Register to add such health condition; (3) publish in the Federal Register the Administrator's determination not to publish such a proposed rule and the basis for such determination; or (4) publish in the Federal Register a determination that insufficient evidence exists to take action under (1) through (3) above. In accordance with 42 CFR 88.16(a)(4), the Administrator may consider more than one petition simultaneously when the petitions propose the addition of the same health condition(s) and the required Federal Register notices may respond to more than one petition.

In addition to the regulatory provisions, the WTC Health Program has developed policies to guide the review of submissions and petitions,2 as well as the analysis of evidence supporting the potential addition of a non-cancer health condition to the List.3 In accordance with the aforementioned non-cancer health condition addition policy, the Administrator directs the WTC Health Program to conduct a review of the scientific literature to determine if the available scientific information has the potential to provide a basis for a decision on whether to add the health condition to the List. The literature review includes a search for peer-reviewed, published, epidemiologic studies (including direct observational studies in the case of health conditions such as injuries) about the health condition among 9/11-exposed populations. The Program evaluates the scientific quality limitations of each peer-reviewed, published, epidemiologic study of the health condition identified in the literature search; the Program then compiles the scientific results of each study to assess whether a causal relationship between 9/11 exposures and the health condition is supported, and evaluates whether the results of the studies are representative of the 9/11-exposed population of responders and survivors. A health condition may be added to the List if peer-reviewed, published, epidemiologic studies provide support that the health condition is substantially likely 4 to be causally associated with 9/11 exposures. If the evaluation of evidence provided in peer-reviewed, published, epidemiologic studies of the health condition in 9/11 populations demonstrates a high, but not substantial likelihood of a causal association between the 9/11 exposures and the health condition, then the Administrator may consider additional highly relevant scientific evidence regarding exposures to 9/11 agents 5 from sources using non-9/11-exposed populations. If that additional assessment establishes that the health condition is substantially likely to be causally associated with 9/11 exposures among 9/11-exposed populations, the health condition may be added to the List.

A valid petition must include sufficient medical basis for the association between the September 11, 2001, terrorist attacks and the health condition to be added; in accordance with WTC Health Program policy, reference to a peer-reviewed, published, epidemiologic study about the health condition among 9/11-exposed populations or to clinical case reports of health conditions in WTC responders or survivors may demonstrate the required medical basis.6 Studies linking 9/11 agents to the petitioned health condition may also provide sufficient medical basis for a valid petition.

On February 22, 2017, the Administrator received a petition (Petition 016) from a WTC responder who worked at Ground Zero, requesting the addition of “young onset Parkinson Disease” 7 and “Parkinsonia Syndrome” to the List. The petition included eight peer-reviewed, published studies and reviews of studies of parkinsonism associated with manganese exposure in non-9/11-exposed populations and laboratory animals, and mechanistic studies of manganese-induced parkinsonism, discussed below.8 The Program noted the various terms used to describe the health condition in the petition and the references included with the petition. The general term “Parkinsonism” refers to a category of neurological diseases exhibiting disturbance in the dopamine systems of the basal ganglia, which leads to the symptoms characterizing the disease: Tremors, slowness of movement, and stiffness. Classic (idiopathic) Parkinson's disease is the most common and treatable form of parkinsonism; non-idiopathic types are considered atypical and referred to by the more general term “parkinsonism.” One type of atypical parkinsonism, manganese-induced parkinsonism, has been found to be caused by elevated and prolonged exposure to manganese.9 The term “Parkinsonia Syndrome,” used by the petitioner, was likely intended to refer to “Parkinsonian syndrome,” a less-commonly used term for atypical parkinsonism.

The first of the eight peer-reviewed, published studies provided in Petition 016, reference 1, “Manganese-Induced Parkinsonism Is Not Idiopathic Parkinson's Disease: Environmental and Genetic Evidence” by Guilarte et al. [2015],10 is a review of various peer-reviewed and published epidemiologic and animal studies highlighting the difference between manganese-induced parkinsonism and Parkinson's disease. Reference 2, “Manganese-Induced Parkinsonism and Parkinson's Disease: Shared and Distinguishable Features” by Kwakye et al. [2015],11 is also a review of peer-reviewed and published epidemiologic, animal, and mechanistic studies comparing characteristics of manganese-induced parkinsonism and Parkinson's disease. Reference 3, “Inducible Nitric Oxide Synthase Gene Methylation and Parkinsonism in Manganese-Exposed Welders” by Searles et al. [2015],12 is an epidemiologic study examining gene methylation of inducible nitric oxide synthase, an enzyme involved in inflammation, among manganese-exposed welders. Reference 4, “α-Synuclein Protects Against Manganese Neurotoxic Insult During the Early Stages of Exposure in a Dopaminergic Cell Model of Parkinson's Disease” by Harischandra et al. [2015],13 is an ex vivo laboratory study in rat cell lines exploring the effects of α-synuclein, a protein found in the brain, on manganese-induced dopaminergic neurotoxicity. Reference 5, “SLC30A10 is a Cell Surface-Localized Manganese Efflux Transporter, and Parkinsonism-Causing Mutations Block its Intracellular Trafficking and Efflux Activity” by Leyva-Illades et al. [2014],14 is a mechanistic and functional cell culture study looking at the role of interactions between genetic and environmental factors in the development of parkinsonism. Reference 6, “Correlation Between the Biochemical Pathways Altered by Mutated Parkinson-Related Genes and Chronic Exposure to Manganese” by Roth [2014],15 is a review of peer-reviewed, published studies describing genes involved in the development of parkinsonism and illustrating how the proposed mechanism of each gene may relate to the onset and severity of manganese toxicity. Reference 7, “Manganese-Induced Atypical Parkinsonism is Associated with Altered Basal Ganglia Activity and Changes in Tissue Levels of Monoamines in the Rat” by Bouabid et al. [2014],16 is a study on changes to motor and non-motor functions and behavior, similar to those observed in parkinsonism, in manganese-exposed rats. Finally, reference 8, “Neurofunctional Dopaminergic Impairment in Elderly After Lifetime Exposure to Manganese” by Lucchini et al. [2014],17 is an epidemiologic study of the effects of manganese exposure due to emissions from nearby ferroalloy plants on the neurocognitive and motor functions of elderly study participants.

The eight references offered as medical basis for Petition 016 suggested a potential association between exposure to the 9/11 agent manganese and manganese-induced parkinsonism and Parkinson's disease and established a sufficient medical basis to consider the submission a valid petition for manganese-induced parkinsonism. Although the petitioner requested the addition of “young onset Parkinson Disease” and “Parkinsonia Syndrome,” the medical basis provided by the petitioner primarily included studies concerning manganese-induced parkinsonism; therefore, the Administrator determined that the petitioner requested the addition of both Parkinson's disease and parkinsonism, including manganese-induced parkinsonism.

On May 10, 2017, the Administrator received a petition from a WTC survivor (Petition 017), requesting the addition of “Parkinson's Disease” to the List. The petition referenced five peer-reviewed, published, epidemiologic studies of heavy metal exposure, including manganese, and Parkinson's disease or parkinsonism in non-9/11-exposed populations.18

The first of the five peer-reviewed, published, epidemiologic studies provided in Petition 017, reference 1, “Increased Risk of Parkinsonism Associated With Welding Exposure” by Racette et al. [2012],19 examined the prevalence and clinical characteristics of parkinsonism among workers exposed to welding fumes. Reference 2, “Inducible Nitric Oxide Synthase Gene Methylation and Parkinsonism in Manganese-Exposed Welders” by Searles et al. [2015],20 was also cited as reference 3 in Petition 016, as discussed above. Reference 3, “Multiple Risk Factors for Parkinson's Disease” by Gorell et al. [2004],21 evaluated the contribution of various occupational, lifestyle, and genetic risk factors, including manganese exposure, to the development of Parkinson's disease. Reference 4, “Occupational Exposure to Manganese, Copper, Lead, Iron, Mercury and Zinc and the Risk of Parkinson's Disease” by Gorell et al. [1999],22 assessed the association between a variety of heavy metals and Parkinson's disease. Finally, reference 5, “Whole-Body Lifetime Occupational Lead Exposure and Risk of Parkinson's Disease” by Coon et al. [2006],23 evaluated the role of chronic lead exposure among individuals with Parkinson's disease.

These five studies suggested a potential association between exposure to known 9/11 agents and Parkinson's disease and parkinsonism, including manganese-induced parkinsonism, and thus provided a sufficient medical basis to consider the submission a valid petition. Because the medical basis provided by the petitioner included studies concerning both Parkinson's disease and manganese-induced parkinsonism, the Administrator determined that the petitioner requested the addition of both Parkinson's disease and manganese-induced parkinsonism.

Since the Administrator determined that the scope of both Petition 016 and Petition 017 include requests for the addition of Parkinson's disease and parkinsonism, including manganese-induced parkinsonism, the Administrator decided to exercise his discretion, as permitted by 42 CFR 88.16(a)(4), to combine consideration of the petitions and issue a single Federal Register notice.

In response to Petition 016 and Petition 017, and pursuant to the Program policy on the addition of non-cancer health conditions to the List,24 the Program conducted reviews of the scientific literature on Parkinson's disease and parkinsonism, including manganese-induced parkinsonism.25

Neither the references provided in the petitions nor the literature search conducted by the Program identified any peer-reviewed, published, epidemiologic studies of either Parkinson's disease or parkinsonism, including manganese-induced parkinsonism, in 9/11-exposed populations. Since no peer-reviewed, published, epidemiologic studies of Parkinson's disease or parkinsonism, including manganese-induced parkinsonism, in 9/11 populations were identified, the Program was unable to conduct an evaluation of scientific evidence to determine the likelihood of a causal association between 9/11 exposures and the petitioned health conditions.

Because no peer-reviewed, published, epidemiologic studies of Parkinson's disease or parkinsonism, including manganese-induced parkinsonism, in 9/11 populations were identified, the Administrator has determined that insufficient evidence is available to take further action at this time, including either proposing the addition of Parkinson's disease or parkinsonism, including manganese-induced parkinsonism, to the List (pursuant to PHS Act, sec. 3312(a)(6)(B)(ii) and 42 CFR 88.16(a)(2)(ii)) or publishing a determination not to publish a proposed rule in the Federal Register (pursuant to PHS Act, sec. 3312(a)(6)(B)(iii) and 42 CFR 88.16(a)(2)(iii)). The Administrator has also determined that requesting a recommendation from the STAC (pursuant to PHS Act, sec. 3312(a)(6)(B)(i) and 42 CFR 88.16(a)(2)(i)) is unwarranted.

For the reasons discussed above, the Petition 016 and Petition 017 requests to add Parkinson's disease and/or parkinsonism, including manganese-induced parkinsonism, to the List of WTC-Related Health Conditions are denied.

The Secretary, HHS, or his designee, the Director, Centers for Disease Control and Prevention (CDC) and Administrator, Agency for Toxic Substances and Disease Registry (ATSDR), authorized the undersigned, the Administrator of the WTC Health Program, to sign and submit the document to the Office of the Federal Register for publication as an official document of the WTC Health Program. Anne Schuchat, M.D., Acting Director, CDC, and Acting Administrator, ATSDR, approved this document for publication on July 6, 2017.