On January 18, 2011, President Obama issued EO 13563, “Improving Regulation and Regulatory Review.” Executive Order 13563 directs Federal agencies to develop and submit a preliminary plan to the Office of Information and Regulatory Affairs that (1) Considers how the agencies will review existing significant regulations and (2) identifies regulations that can be made more effective or less burdensome in achieving regulatory objectives. Executive Order 13563 did not, however, apply to independent regulatory agencies. Subsequently, on July 11, 2011, the President issued EO 13579, which recommends that independent regulatory agencies also develop retrospective plans similar to those required of other agencies under EO 13563. In response to EO 13579, the NRC is making available an initial Plan on the NRC's Public Web site.

The NRC's initial Plan describes the NRC's plans, processes, and activities relating to retrospective review of existing regulations, including discussion of efforts to (1) Incorporate risk assessments into regulatory decisionmaking and (2) address cumulative effects of regulation.

On July 12, 2011, “Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident” (Fukushima Task Force Report, ML111861807), was issued. The Commission has recently directed staff to engage promptly with stakeholders to review and assess the recommendations of the Fukushima Task Force Report for the purpose of providing the Commission with fully-informed options and recommendations. The Commission's decision regarding the options and recommendations contained in the Fukushima Task Force Report may substantially affect the NRC's near-term rulemaking activities. Once the Commission reaches a decision, the NRC will then revise the initial Plan to incorporate any changes to rulemaking activities. The NRC will update the initial Plan on the NRC's Public Web site and publish the updated Plan for public comment in the Federal Register . The NRC anticipates this to occur in CY 2012.

I. Executive Summary of Plan

On July 11, 2011, the President issued Executive Order 13579, requesting independent regulatory agencies follow the key principles of Executive Order 13563. These principles were designed to promote public participation, improve integration and innovation, promote flexibility and freedom of choice, and ensure scientific integrity during the rulemaking process in order to create a regulatory system that protects public health, welfare, safety, and the environment while promoting economic growth, innovation, competitiveness, and job creation.

As part of this effort, Executive Order 13579 requests that independent agencies issue public plans for periodic retrospective analysis of their existing “significant regulations.” Retrospective analysis should identify “significant regulations” that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in order to achieve the agency's regulatory objective. Plans for retrospective analysis should be made available to the public by November 8, 2011.

The Chairman of the Federal Energy Regulatory Commission (FERC or the Commission) directed Commission staff to develop a plan in support of the principles and goals of the Executive Orders. This plan sets forth a schedule for reassessing the Commission's regulations in order to comply with the key principles and achieve the goals of Executive Orders 13579 and 13563.

This plan summarizes the Commission's continuing efforts to identify regulations that warrant repeal or modification, or strengthening, complementing, or modernizing where necessary or appropriate. The Commission voluntarily and routinely, albeit informally, reviews its regulations to ensure that they achieve their intended purpose and do not impose undue burdens on regulated entities or unnecessary costs on those entities or their customers. In addition, the Commission considers the spirit of these Executive Orders when evaluating possible new regulations.

This plan also outlines additional steps for the future to identify regulations that warrant repeal or modification, or strengthening, complementing, or modernizing where necessary or appropriate. This plan is in addition to the Commission's current voluntary review of its regulations.

Executive Order 13579 asks independent agencies to review “significant regulations.” The executive order does not define what should be considered “significant regulations.” Commission staff considered the definition of a “significant regulatory action” provided in Executive Order 12866, which is the executive order that established the modern regulatory review structure. 1 Commission staff also considered the Office of Management and Budget's definition of “major rules” in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) to guide our review. In particular, 5 U.S.C. 610 provides for a 10-year review of rules that have a “significant economic impact upon a substantial number of small entities.” However, the Commission, in consultation with OMB, has determined that a very limited number of the Commission's rules are “major rules” because they do not have a “significant economic impact upon a substantial number of small entities.”  2 FERC's rules, likewise, are typically not considered a “significant regulatory action.”

Because the Commission has relatively few “major rules” or “significant regulatory actions”, this plan establishes a process for reviewing both those Commission actions and other Commission rules that nonetheless would be considered of particular importance to the industry regulated by the Commission and the public. Commission staff will develop an internal list of such regulations and other actions. On a biennial basis, staff will prepare a memo detailing which of the listed regulations are ripe for evaluation based on a 10-year review cycle. This plan establishes a 10-year review cycle because that period is consistent with OMB regulations requiring a 10-year review of all major regulations. In addition, there may be sufficient changes in the industries that the Commission regulates over a 10-year period to warrant an evaluation of whether the regulations are outdated.

Commission staff will make its memo available for public comment, providing an opportunity for public input as to which of the regulations that are ripe for evaluation warrant a formal public review. This input, in addition to staff's recommendation, will inform the Commission's decision as to which regulations will be the subject of a formal public review. This public review could be initiated by a Notice of Inquiry seeking public comment on whether the regulations continue to meet their original objectives  3 or by a proposal of specific changes to the regulations, similar to the changes proposed in the Notice of Proposed Rulemaking leading to Order No. 890. 4

This plan covers existing regulations, significant guidance documents available on the Commission's Web site, existing information collections, and unfinished proposed rules.

The Commission regularly reviews its regulations to ensure that they achieve their intended purpose and do not impose undue burdens on regulated entities or unnecessary costs on those entities or their customers. To this end, the Commission has recently reviewed or is in the process of reviewing several important regulations. Those efforts are outlined in Section V, below.

In response to the review performed pursuant to Executive Order 13563, Commission enforcement staff noted the requirement for companies to correct previously-filed Electronic Quarterly Reports (EQRs). At the time of the issuance of Executive Order 13563, if there was an inaccuracy in one or more of a company's previously-filed EQRs, the Commission had required the company to go back and correct all of its previously-filed EQRs affected by the error. Staff determined that correcting errors on all affected prior reports is not particularly useful and imposes a growing burden on filers that serves little purpose. The Commission has now implemented an informal policy of directing filers to correct the most recent 12 reports (three years of data) with a note placed in the EQR stating that other reports may also contain the error. This approach provides as much useful information to staff and the public as the previous policy of correcting all affected previously-filed EQRs, while being less burdensome to filers. This change did not necessitate a change in the Commission's regulations.

On December 16, 2010, the Commission in Docket No. RM11-4-000 issued a Notice of Inquiry regarding whether to revise regulations requiring interstate and intrastate natural gas pipelines to report semi-annually on their storage activities. In analyzing the comments received in response to the Notice of Inquiry, the Commission considered the comments received and the goals of those executive orders. Subsequently, on September 15, 2011, the Commission issued a Notice of Proposed Rulemaking proposing to retire the Semi-Annual Storage Report for both interstate and intrastate natural gas companies. 5 The Commission is seeking to streamline its natural gas pipeline reporting requirements, as part of its continuing efforts to ensure Commission regulations are effective, timely, and up to date. Retiring the Semi-Annual Storage Report would reduce the filing and administrative burden on filers. More significantly, the retirement would avoid the generation of duplicative data that is available from other Commission information collections and via company web postings. The Commission is still in the process of reviewing comments to the Notice of Proposed Rulemaking and has not taken final action on this proposal.

As stated above, the Commission, in consultation with OMB, has determined that a very limited number of the Commission's rules are considered “major rules” or “significant regulatory actions.” The actions discussed below were considered “major rules.” This plan calls for the Commission to review these actions at least every ten years.

Order Nos. 888 and 889, issued in 1996, were together considered major rules pursuant to section 351 of the SBREFA. 6 Order No. 888 prohibited public utilities from using their monopoly power over transmission to restrain or prevent competition. Order No. 889 established rules governing an Open Access Same-time Information System (OASIS) and prescribing standards of conduct. However, the Commission certified that these final rules would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (RFA). 7 In 2007, the Commission undertook a 10-year review of its electric transmission open access regulations culminating in the issuance of Order No. 890, which revisited the Commission's open access policies and amended its pro forma Open Access Transmission Tariff to further improve competition in wholesale markets by, among other things: eliminating the wide discretion that transmission providers had in calculating available transfer capability; increasing the ability of customers to access new generating resources and promote efficient utilization of transmission by requiring an open, transparent, and coordinated transmission planning process; promoting more efficient use of the transmission grid by establishing a new conditional firm service; and strengthening compliance and enforcement efforts.

Order No. 693 was issued in 2007. This major rule concerned a Congressional mandate to adopt mandatory standards to protect electric reliability under section 215 of the Federal Power Act (FPA). That rule required compliance with 83 previously voluntary Reliability Standards developed by industry. These Reliability Standards are reviewed periodically by the entity developing mandatory reliability standards for Commission approval, the North American Electric Reliability Corporation (NERC). Any revisions to those standards come to the Commission for review and approval. According to NERC's rules of procedure, it must “complete a review of each NERC reliability standard at least once every five years from the effective date of the standard or the latest revision to the standard, whichever is later.”  8

Order No. 706, issued in 2008, was also issued pursuant to Part 40 of the Commission's regulations and was considered a major rule pursuant to the SBREFA, but did not have a significant economic impact on a substantial number of small entities. Order No. 706 was issued to make mandatory certain cyber security reliability standards to protect the reliability of the electric system. The rules were developed by industry consensus and have been updated several times. NERC most recently filed to modify the Reliability Standards approved in Order No. 706 on February 10, 2011. Those revisions are currently under review by the Commission.”  9

The Smart Grid Policy Statement that the Commission issued in 2009 is also considered by OMB to be a “major rule.”  10 This Policy Statement provides guidance regarding the development of a smart grid for the nation's electric transmission system, focusing on the development of key standards to achieve interoperability and functionality of smart grid systems and devices. In response to the need for urgent action on potential challenges to the bulk-power system, in this Policy Statement the Commission provided additional guidance on standards to help to realize a smart grid. The Commission also adopted an Interim Rate Policy for the period until interoperability standards are adopted by the Commission, which will encourage investment in smart grid systems.

Because the Commission has relatively few rules that are considered “major rules” or “significant regulatory actions,” the review to be conducted under this plan is broader than just a review of rules considered “major rules” or “significant regulatory actions.”  11

Commission staff will develop an internal list of other Commission rules that nonetheless would be considered of particular importance to the industry regulated by the Commission and the public. On a biennial basis, staff will prepare a memo detailing which of the listed regulations are ripe for evaluation based on a 10-year review cycle. In other words, in 2012, staff will evaluate whether those regulations last revised in 2001 and 2002 should be formally reviewed. There would be no evaluation in 2013. In 2014, staff would evaluate the regulations last revised in 2003 and 2004.

Evaluating regulations every ten years is consistent with OMB regulations requiring a 10-year review of all major regulations. It is also consistent with other agencies which review their major regulations every 10 years. 12 Further, there may be sufficient changes in the industries it regulates over a 10-year period to warrant an evaluation of whether the regulations are outdated.

There are several reasons why this plan calls for a biennial evaluation. First, while the Commission, as an economic regulator covering multiple industries, has a significant number of regulations, it has only a few major rules or significant regulatory actions. Second, as outlined in section V, the Commission regularly, voluntarily, and routinely, albeit informally, reviews its regulations to ensure that they achieve their intended purpose and do not impose undue burdens on regulated entities or unnecessary costs on those entities or their customers. The formal plan created pursuant to Executive Order 13579 is in addition to this current voluntary review. Third, evaluating regulations every year may take too many staff resources.

As stated above, on a biennial basis, staff will prepare a memo detailing which of the Commission's regulations are ripe for evaluation based on a 10-year review cycle. Staff will make that memo available for public comment, providing an opportunity for public input as to which of the regulations that are ripe for evaluation warrant a formal public review. This input, in addition to staff's recommendation, will inform the Commission's decision as to which regulations will be the subject of a formal public review.

Of course, members of the public and industry participants always may suggest the need for revisions in existing regulations, even outside of existing proceedings. The Commission seriously considers such input. Input from the public and industry participants is often part of the Commission's determination to reevaluate existing policy and rules. Similarly, members of the public and industry participants may submit filings to the Commission if they believe that ongoing information reporting obligations may no longer be needed.

Public participation is a regular and crucial part of the Commission's rulemaking process. The Commission's rulemaking proceedings typically provide multiple opportunities for public participation through the submission of comments on Notices of Inquiry and Notices of Proposed Rulemaking; where appropriate, participation in any public outreach meetings; and the filing of requests for rehearing of final rules.

Since the issuance of Executive Order 13563, the Commission has made efforts to adhere to the spirit of the executive order even though, as an independent agency, it is not subject to the executive order.

Even prior to the issuance of Executive Orders 13563 and 13579, the Commission has adopted a culture of retrospective review and analysis of its regulations and processes. The Commission constantly examines ways to reduce regulatory burdens, simplify the regulatory process, remove barriers to entry, and to otherwise make its regulations more effective and less burdensome. Below are examples of measures that the Commission has taken in recent years to identify areas where burdens could be reduced.

This year, the Commission issued a Notice of Inquiry to reassess whether its electric transmission ratemaking incentive regulations are effectively encouraging the development of transmission infrastructure in a manner consistent with the intent of the Energy Policy Act of 2005 (EPAct 2005), which directed FERC to establish rules to provide incentive rates to encourage development of electric transmission infrastructure. The development of transmission infrastructure will facilitate competition in regional electricity markets, which helps ensure just and reasonable rates without burdensome regulatory oversight.

In the natural gas markets, the Commission, last year, exempted certain transactions from natural gas index reporting requirements, particularly with reference to blanket sales certificates, because it found that those transactions were burdensome to report and provided little market information. The Commission also exempted small entities that were obligated to report solely by virtue of possessing a blanket sales certificate. Thus, the Commission removed regulatory burdens on regulated entities, including small businesses.

In 2007, the Commission conducted a comprehensive review of its electric transmission open-access regulations, including its landmark Order No. 888, which prohibited public utilities from using their monopoly power over transmission to restrain or prevent competition. It reached out to the regulated industry and other stakeholders. This effort culminated in the issuance of Order No. 890, which revisited the Commission's open-access policies and amended its pro forma Open Access Transmission Tariff to further improve competition in wholesale markets by, among other ways, increasing the ability of customers to access new generating resources and promoting efficient utilization of transmission by requiring an open, transparent, and coordinated transmission planning process.

In the hydropower arena, the Commission has entered into a number of memoranda of understanding with other Federal agencies and state governments to reduce regulatory conflict and overlap.

In March 2010, the Commission issued a final rule to exempt generating facilities that are 1 MW and smaller from the need to file a Form 556 in order to be certified by the Commission as a Qualifying Facility (QF). This change will facilitate the development of small generating facilities. The final rule also removed the content of Form 556 from the Commission's regulations and, in their place, provided that an applicant seeking to certify QF status of a small power production or cogeneration facility must complete, and electronically file, the Form 556 that is in effect at the time of filing. The Commission stated that this change takes advantage of newer technologies that will reduce both the filing burden for applicants and the processing burden for the Commission.

In addition to reducing regulatory burdens, the Commission has sought out ways to simplify the regulatory process and provide educational resources, thereby helping entities, particularly small ones, navigate the Federal regulatory process. One example of this outreach is the Commission's encouragement of small hydropower development. In 2010, the Commission signed a memorandum of understanding with the State of Colorado to simplify procedures for the development of small-scale hydropower projects. Similarly, in response to rising public interest in small and low-impact hydropower projects, the Commission has developed a publicly available and user-friendly website that provides detailed information on how to navigate the small hydropower regulatory process. Commission staff also has been and will continue to host public tutorials and webinars tailored to the needs of entities intending to file applications to develop small hydropower projects. In addition, Commission staff conducted a study last year in coordination with the hydropower industry, government agencies, Native American tribes, non-governmental organizations, and the general public to evaluate the effectiveness of the Commission's integrated licensing process for hydroelectric facilities.

The Commission has coordinated seminars around the country on environmental review and compliance for natural gas facilities. In the past two years, over 1,000 people have attended these seminars. These seminars increase transparency, help stakeholders better understand the natural gas regulatory process, improve inter-agency coordination, and allow faster processing of applications.

The Commission has also taken various steps to simplify the regulatory process by moving from paper to electronic formats in a number of areas. Most notably, the Commission has developed and implemented a standard electronic tariff filing system known as eTariff. Electronic filing allows the public and regulated entities faster and easier access to tariffs. Similarly, the Commission is moving to automate various forms to simplify the regulatory process. For example, section 205(f) of the FPA requires respondents to submit certain information in Form 580, Interrogatory on Fuel and Energy Purchase Practices. In 2010, the Commission established Form 580 in an electronic pdf-fillable form and streamlined the information required by the Form.

The eTariff filing process described above has greatly improved public access to tariff filing documents by posting such filings in near real-time into the public record, and increased ten-fold the number of FERC regulated tariffs that are now available through the Commission's Web site.

Another way that the Commission has adopted a culture of retrospective review is to examine ways to reduce the barriers to entry for new businesses and emerging technologies. In recent years, improvements in technology have led to an increasing variety of resources being capable of contributing to reliable, efficient, and sustainable energy services. The Commission has recently initiated a number of rulemaking proceedings that are responsive to these developments to ensure that regulations do not inhibit the use of emerging technologies to provide services subject to the Commission's jurisdiction.

Last year, for example, the Commission initiated a rulemaking proceeding on issues related to the reliable integration of variable energy resources, such as solar, wind, and hydrokinetic generation, to determine whether operational and pricing reforms would result in more efficient integration of variable energy resources into the grid, which, in turn, would lay a foundation for continued development of variable energy resources.

Further, the Commission has taken steps to remove barriers to the use of emerging technologies, such as flywheels and other electric storage devices, that are capable of responding to certain transmission system needs more quickly than traditional generators. In October 2011, the Commission revised its regulations pertaining to organized wholesale electric markets of regulation service to ensure that resources that provide faster and more accurate regulation services are compensated appropriately for their performance. 13 This would result in increased competition, which will tend to place downward pressure on rates for regulation service.

Similarly, the Commission issued a Notice of Inquiry in June 2011, seeking public comment on ways in which the Commission can facilitate competition in the provision of ancillary services from all resource types, including electric storage, and whether the Commission's accounting requirements present a barrier to development of electric storage.

The Commission also has recently taken a number of steps to remove barriers to demand response participation in organized wholesale electric markets. Pursuant to a Congressional directive, Commission staff in 2009 found that the potential for peak electricity demand reductions across the country is between 38 GW and 188 GW, up to 20 percent of national peak demand, depending on the penetration of advanced metering and the applicable regulatory policies. The Commission also has amended its regulations to facilitate demand response participation in organized markets. In Order No. 719, for example, the Commission amended its regulations to eliminate certain barriers to participation by demand response resources that are technically capable of providing ancillary services on the grid. More recently, the Commission issued Order No. 745, which addresses compensation for demand response resources participating in organized wholesale energy markets.

As described in Part V of this plan, the Commission has developed a strong and longstanding culture of retrospective analysis of its existing significant regulations. The Commission currently has several proceedings in which it is examining regulations to ensure they continue to be appropriate to meet the goal of the regulations without imposing an undue burden. These proceedings were initiated in large part because the Commission has a culture of retrospective analysis of its rules. In addition, since the issuance of Executive Orders 13563 and 13579, Commission staff has sought to expand the Commission's effort to conduct regulatory reform and to make suggestions to modify, improve, or repeal regulations that may further the purpose of the executive orders. The Commission also considers the spirit of these Executive Orders when evaluating possible new regulations.

Before Commission staff identifies candidate regulations to review, it will consider a number of factors, including measures to effectively carry out the Commission's statutory responsibilities; staff resources; market dynamics; the effect of regulations on small businesses; comments from other agencies, stakeholders, and regulated entities; stakeholder actions; government actions; technological developments; and the public interest. Currently, Commission staff has not compiled a list of candidate rules for which it will recommend review in the next two years.

Name/Position Title: Christy Walsh, Special Counsel, Office of the General Counsel.

Email address: Christy.walsh@ferc.gov.

Because of staff limitations, the Commission cannot separate staff involved with retrospective review of regulations from staff responsible for writing and implementing regulations. Instead, in order to maintain sufficient independence staff involved with the retrospective review, the Commission has created a team consisting of staff from all of the Commission's offices. In such an environment, the views of those who write and implement regulations pertaining to their respective office would be balanced by the views of the rest of the team. Such a structure ensures objective analysis of individual regulations.

In addition to continuing the measures described in Part V, this plan establishes a process to enhance the Commission's retrospective analysis of regulations in the future. Beginning in November 2011, Commission staff will conduct reviews on a biennial basis to identify existing regulations that have become ineffective, outmoded, or overly burdensome.

The Commission, as an independent regulatory agency, cannot always coordinate with other federal agencies. The Commission has historically coordinated with state and other federal agencies and has harmonized related regulations, when feasible, in order to reduce redundancy and conflict. Over the last three decades, the Commission has entered into memoranda of understanding and letters of understanding with state governments and other federal agencies. This effort has lead to predictability, clarity, a decrease in costs for the public and regulated entities. The Commission will continue to look for opportunities to further promote interagency coordination.

With respect to peer review, the Commission must seek comments on any proposed change to its regulations. The Commission routinely receives comments on its proposals from industry and other interested individuals. Before issuing a final decision, the Commission must review those comments.

Fulfilling the Commission's mission involves pursuing two primary goals: ensuring that rates, terms and conditions are just, reasonable and not unduly discriminatory or preferential, and promoting the development of safe, reliable and efficient infrastructure that serves the public interest. When evaluating whether regulations should be reviewed under this Plan, Commission staff will consider a number of factors, including measures to effectively carry out the Commission's statutory responsibilities, staff resources, whether the regulations contain barriers to entry of new market participants, whether there have been changes in market dynamics, and if there have been stakeholder actions or government actions that could warrant regulatory change. In addition, Commission staff will consider whether new technologies have emerged that may warrant changes in the Commission's regulations. Commission staff's review will also include an examination of the effect of regulations on small businesses to ensure that they are not overly burdensome. Finally, Commission staff will consider the public interest, in order to make recommendations on retrospective review.

The Commission will publish its retrospective review plan in the Federal Register and on its Web site, http://www.ferc.gov. A docket on the Commission's eLibrary, which is its filing and document management system, will be opened for this plan.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA 2011-0783 and Airspace Docket No. 11-ANM-16) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2011-0783 and Airspace Docket No. 11-ANM-16”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class D airspace, and Class E airspace extending upward from 700 feet above the surface at Bozeman, Gallatin Field Airport, Bozeman, MT. The FAA's biennial review of the airspace found that additional controlled airspace is necessary to accommodate aircraft using the ILS LOC standard instrument approach procedures at the airport. Also, this action would establish Class E en route domestic airspace extending upward from 1,200 feet above the surface to allow vectoring IFR aircraft from en route airspace to the airport.

Class D and Class E airspace designations are published in paragraph 5000, 6005 and 6006, respectively, of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designation listed in this document will be published subsequently in this Order.

The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Bozeman, Gallatin Field Airport, Bozeman, MT.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA 2011-1191 and Airspace Docket No. 11-ANM-21) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2011-1191 and Airspace Docket No. 11-ANM-21”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace designated as an extension to Class C airspace area for City of Colorado Springs Municipal Airport, Colorado Springs, CO. Airspace reconfiguration is necessary due to the decommissioning of the Black Forest TACAN. Also, the geographic coordinates of the airport would be updated to coincide with the FAA's aeronautical database. Controlled airspace is necessary for the safety and management of IFR operations at the Airport.

Class E airspace designations are published in paragraph 6003, of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.

The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at City of Colorado Springs Municipal Airport, Colorado Springs, CO.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The Fair Housing Act declares it to be “the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”  2 Congress considered the realization of this policy “to be of the highest priority.”  3 The language of the Fair Housing Act prohibiting discrimination in housing is “broad and inclusive”; 4 the purpose of its reach is to replace segregated neighborhoods with “truly integrated and balanced living patterns.”  5 In commemorating the 40th anniversary of the Fair Housing Act and the 20th anniversary of the Fair Housing Amendments Act, the House of Representatives recognized that “the intent of Congress in passing the Fair Housing Act was broad and inclusive, to advance equal opportunity in housing and achieve racial integration for the benefit of all people in the United States.”  6

In keeping with the “broad remedial intent” of Congress in passing the Fair Housing Act, 7 and consequently the Act's entitlement to a “generous construction,”  8 HUD, to which Congress gave the authority and responsibility for administering the Fair Housing Act and the power to make rules to carry out the Act, 9 has repeatedly determined that the Fair Housing Act is directed to the consequences of housing practices, not simply their purpose. Under the Act, housing practices—regardless of any discriminatory motive or intent—cannot be maintained if they operate to deny protected groups equal housing opportunity or they create, perpetuate, or increase segregation without a legally sufficient justification.

Accordingly, HUD has concluded that the Act provides for liability based on discriminatory effects without the need for a finding of intentional discrimination. For example, HUD's Title VIII Complaint Intake, Investigation and Conciliation Handbook (Handbook), which sets forth HUD's guidelines for investigating and resolving Fair Housing Act complaints, recognizes the discriminatory effects theory of liability and requires HUD investigators to apply it in appropriate cases. 10 In adjudicating charges of discrimination filed by HUD under the Fair Housing Act, HUD administrative law judges have held that the Act is violated by facially neutral practices that have a disparate impact on protected classes. 11 HUD's regulations interpreting the Fair Housing Act prohibit practices that create, perpetuate, or increase segregated housing patterns. 12 HUD also joined with the Department of Justice and nine other Federal enforcement agencies to recognize that disparate impact is among the “methods of proof of lending discrimination under the * * * Act” and provide guidance on how to prove a disparate impact fair lending claim. 13

In addition, in regulations implementing the Federal Housing Enterprises Financial Safety and Soundness Act, HUD prohibited mortgage purchase activities that have a discriminatory effect. In enacting these regulations, 14 which prescribe the fair lending responsibilities of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac), HUD noted that “the disparate impact (or discriminatory effect) theory is firmly established by Fair Housing Act case law” and concluded that disparate impact law “is applicable to all segments of the housing marketplace, including the GSEs.”  15

Moreover, all Federal courts of appeals to have addressed the question have held that liability under the Act may be established based on a showing that a neutral policy or practice either has a disparate impact on a protected group  16 or creates, perpetuates, or increases segregation, 17 even if such a policy or practice was not adopted for a discriminatory purpose.

The Fair Housing Act's discriminatory effects standard is analogous to the discriminatory effects standard under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e), which prohibits discriminatory employment practices. The U.S. Supreme Court held that Title VII reaches beyond intentional discrimination to include employment practices that have a discriminatory effect. 18 The Supreme Court explained that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”  19

It is thus well established that liability under the Fair Housing Act can arise where a housing practice is intentionally discriminatory or where it has a discriminatory effect. 20 A discriminatory effect may be found where a housing practice has a disparate impact on a group of persons protected by the Act, or where a housing practice has the effect of creating, perpetuating, or increasing segregated housing patterns on a protected basis. 21

While the discriminatory effects theory of liability under the Fair Housing Act is well established, there is minor variation in how HUD and the courts have applied that theory. For example, HUD has always used a three-step burden-shifting approach, 22 as do many Federal courts of appeals. 23 But some courts apply a multi-factor balancing test, 24 other courts apply a hybrid between the two, 25 and one court applies a different test for public and private defendants. 26

Another source of variation is in the application of the burden-shifting test. Under the burden-shifting approach, the plaintiff (or, in administrative proceedings, the complainant) must make a prima facie showing of either disparate impact or perpetuation of segregation. If the discriminatory effect is shown, the burden of proof shifts to the defendant (or respondent) to justify its actions. If the defendant or respondent satisfies its burden, courts and HUD administrative law judges have differed as to which party bears the burden of proving whether a less discriminatory alternative to the challenged practice exists. The majority of Federal courts of appeals that use a burden-shifting approach place this burden on the plaintiff, 27 analogizing to Title VII's burden-shifting framework. 28 Other Federal courts of appeals have kept the burden with the defendant. 29 HUD has, at times, placed this burden of proving a less discriminatory alternative on the respondent and, at other times, on the complainant. 30

This proposed rule establishes a uniform standard of liability for facially neutral housing practices that have a discriminatory effect. Under this rule, liability is determined by a burden-shifting approach. The plaintiff or complainant first must bear the burden of proving its prima facie case of either disparate impact or perpetuation of segregation, after which the burden shifts to the defendant or respondent to prove that the challenged practice has a necessary and manifest relationship to one or more of the defendant's or respondent's legitimate, nondiscriminatory interests. If the defendant or respondent satisfies its burden, the plaintiff or complainant may still establish liability by demonstrating that these legitimate nondiscriminatory interests could be served by a policy or decision that produces a less discriminatory effect. 31

HUD proposes this standard for several reasons. First, Title VII, enacted four years before the Fair Housing Act, has often been looked to for guidance in interpreting analogous provisions of the Fair Housing Act. 32 HUD's proposal is consistent with the discriminatory effects standard confirmed by Congress in the 1991 amendments to Title VII. 33 Second, HUD's proposal is consistent with the discriminatory effects standard applied under the Equal Credit Opportunities Act (ECOA), 34 which borrows from Title VII's burden-shifting framework. 35 There is significant overlap in coverage between ECOA, which prohibits discrimination in credit, and the Fair Housing Act, which prohibits discrimination in residential real estate-related transactions. 36 The interagency Policy Statement on Discrimination in Lending analyzed the standard for proving disparate impact discrimination in lending under the Fair Housing Act and under ECOA without differentiation. 37 Under HUD's proposed framework, parties litigating a claim brought under both the Fair Housing Act and ECOA will not face the burden of applying inconsistent methods of proof to factually indistinguishable claims. Third, by placing the burden of proving a necessary and manifest relationship to a legitimate, nondiscriminatory interest on the defendant or respondent and the burden of proving a less discriminatory alternative on the plaintiff or complainant, “neither party is saddled with having to prove a negative.”  38

HUD proposes adding a new subpart G, entitled “Prohibiting Discriminatory Effects,” to its Fair Housing Act regulations in 24 CFR part 100. Subpart G would confirm that the Fair Housing Act may be violated by a housing practice that has a discriminatory effect, as defined in § 100.500(a), regardless of whether the practice was adopted for a discriminatory purpose. The housing practice may still be lawful if supported by a legally sufficient justification, as defined in § 100.500(b). The respective burdens of proof for establishing or refuting an effects claim are set forth in § 100.500(c). Subsection 100.500(d) clarifies that a legally sufficient justification does not defeat liability for a discriminatory intent claim once the intent to discriminate has been established. 39

This proposed rule would apply to both public and private entities because the definition of “discriminatory housing practice” under the Act makes no distinction between the two. 40

Under the Fair Housing Act and this proposed rule, a “discriminatory effect” occurs where a facially neutral housing practice actually or predictably results in a discriminatory effect on a group of persons (that is, a disparate impact), or on the community as a whole (perpetuation of segregation). 41 Any facially neutral action, e.g. laws, rules, decisions, standards, policies, practices, or procedures, including those that allow for discretion or the use of subjective criteria, may result in a discriminatory effect actionable under the Fair Housing Act and this rule.

Disparate Impact. Examples of a housing policy or practice that may have a disparate impact on a class of persons delineated by characteristics protected by the Act include a zoning ordinance restricting private construction of multifamily housing to a largely minority area ( see Huntington Branch, 844 F.2d at 937); the provision and pricing of homeowner's insurance ( see Ojo v. Farmers Group, Inc., 600 F.3d 1205, 1207-8 (9th Cir. 2010) (en banc)); mortgage pricing policies that give lenders or brokers discretion to impose additional charges or higher interest rates unrelated to a borrower's creditworthiness ( see Miller v. Countrywide Bank, N.A., 571 F. Supp. 2d 251, 253 (D. Mass. 2008)); credit scoring overrides provided by a purchaser of loans ( see Beaulialice v. Federal Home Loan Mortg. Corp., 2007 WL 744646, *4 (M.D. Fla. Mar. 6, 2007)); and credit offered on predatory terms, ( see Hargraves v. Capitol City Mortgage, 140 F. Supp. 2d 7, 20-21 (D.D.C. 2000)). Further examples of such claims can be found in the following court cases: Keith v. Volpe, 858 F.2d 467, 484 (9th Cir. 1988), where the city's land-use decisions that prevented the construction of two housing developments for city residents displaced by a freeway had a greater adverse impact on minorities than on whites because two-thirds of the persons who would have benefited from the housing were minorities; ( Langlois, 207 F.3d at 50, where public housing authorities' use of local residency preferences to award Section 8 Housing Choice Vouchers likely would result in an adverse impact based on race; United States v. Incorporated Village of Island Park, 888 F. Supp. 419, 447 (E.D.N.Y. 1995), where a housing program's preference for residents of the Village, most of whom were white, had a disparate impact on African-Americans; Charleston Housing Auth., 419 F.3d at 741-42, where the housing authority's plan to demolish 50 low-income public housing units—46 of which were occupied by African Americans—would disproportionately impact African Americans based on an analysis of the housing authority's waiting list population, the population of individuals income-eligible for public housing, or the current tenant population; and Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065-66 (4th Cir. 1982), where the town's withdrawal from a multi-municipality housing authority effectively blocked construction of 50 units of public housing, adversely affecting African American residents of the county, who were those most in need of new construction to replace substandard dwellings).

Perpetuation of Segregation. A person or entity may be liable for a housing policy or practice that has a discriminatory effect on the community because the practice has the effect of creating, perpetuating, or increasing housing patterns that segregate by race, color, religion, sex, familial status, national origin, or disability. Examples of such claims can be found in the following court cases: Huntington Branch, 844 F.2d at 934, 937, where the town's zoning ordinance, which limited private construction of multifamily housing to a largely minority neighborhood, had the effect of perpetuating segregation “by restricting low-income housing needed by minorities to an area already 52% minority”; Dews v. Town of Sunnyvale, Tex., 109 F. Supp. 2d 526, 567 (N.D. Tex. 2000), where the town's zoning ordinance that banned multifamily housing and required single-family lots of at least one acre had the effect of perpetuating segregation by keeping minorities out of a town that was 94 percent white; Black Jack, 508 F.2d at 1186, where a city ordinance preventing the construction of low-income multifamily housing “would contribute to the perpetuation of segregation in a community which was 99% white”; and Inclusive Communities Projects, Inc. v. Texas Dep't of Housing & Community Affairs, 749 F. Supp. 2d 486, 500 (N.D. Tex. 2010), where the state's disproportionate denial of tax credits for nonelderly housing in predominately white neighborhoods had a segregative impact on the community.

A housing practice or policy found to have a discriminatory effect may still be lawful if it has a “legally sufficient justification.” A “legally sufficient justification” exists where the housing practice or policy: (1) Has a necessary and manifest relationship to the defendant's or respondent's legitimate, nondiscriminatory interests;  42 and (2) those interests cannot be served by another practice that has a less discriminatory effect. 43 A legally sufficient justification may not be hypothetical or speculative. In addition, a legally sufficient justification does not defeat liability for a discriminatory intent claim once the intent to discriminate has been established.

The burden-shifting framework set forth in the proposed rule for discriminatory effect claims finds support in judicial interpretations of the Act, and is also consistent with the burdens of proof Congress assigned in disparate impact employment discrimination cases. See 42 U.S.C. § 2000e-2(k). In the proposed rule, the complainant or plaintiff first bears the burden of proving its prima facie case, that is, that a housing practice caused, causes, or will cause a discriminatory effect on a group of persons or a community on the basis of race, color, religion, sex, disability, familial status, or national origin.

Once the complainant or plaintiff has made its prima facie case, the burden of proof shifts to the respondent or defendant to prove that the challenged practice has a necessary and manifest relationship to one or more of the housing provider's legitimate, nondiscriminatory interests.

If the respondent or defendant satisfies its burden, the complainant or plaintiff may still establish liability by demonstrating that these legitimate, nondiscriminatory interests could be served by a policy or decision that produces a less discriminatory effect.

Violations of various provisions of the Act may be established by proof of discriminatory effects. For example, under 42 U.S.C. subsections 3604(a) and 3604(f)(1), discriminatory effects claims may be brought under the Act's provisions that make it unlawful to “otherwise make unavailable or deny [ ] a dwelling” because of a protected characteristic. Discriminatory effects claims may be brought pursuant to subsections 3604(b) and 3604(f)(2) of the Act prohibiting discrimination “in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of” a protected characteristic. For residential real estate-related transactions, discriminatory effects claims may be brought under section 3605, which bars “discrimination against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of” a protected characteristic. Discriminatory effects claims may also be brought under section 3606, prohibiting discrimination in the provision of brokerage services.

HUD's existing Fair Housing Act regulations provide examples of housing practices that may violate the Act, based on an intent theory, an effects theory, or both. The proposed rule adds examples of discriminatory housing practices that may violate the new subsection G because they have a discriminatory effect. The cases cited in Section II.A.2 of this preamble identify housing practices found by courts to create discriminatory effects that violate or may violate the Act. These cases are provided as examples only and should not be viewed as the only ways to establish a violation of the Act based on a discriminatory effects theory.

The Department welcomes comments on the standards proposed in this rule, including whether a burden-shifting approach should be used to determine when a housing practice with a discriminatory effect violates the Fair Housing Act and, where proof is required of the existence or nonexistence of a less discriminatory alternative to the challenged practice, which party should bear that burden. These comments will help the Department in its effort to craft final regulations that best serve the broad, remedial goals of the Fair Housing Act.

The Office of Management and Budget (OMB) reviewed this proposed rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). The proposed rule has been determined to be a “significant regulatory action,” as defined in section 3(f) of the Order, but not economically significant under section 3(f)(1) of the Order. The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at (202) 402-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at (800) 877-8339.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule proposes to establish uniform standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act.

Discriminatory effects liability is consistent with the position of other Executive Branch agencies and has been applied by every Federal court of appeals to have reached the question. Given the variation in how the courts have applied that standard, HUD's objective in this proposed rule is to achieve consistency and uniformity in this area, and therefore reduce burden for all who may be involved in a challenged practice. Accordingly, the undersigned certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule sets forth nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

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

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

For the reasons discussed in the preamble, HUD proposes to amend 24 CFR part 100 as follows:

Executive Order 13563, “Improving Regulation and Regulatory Review” (E.O.), was issued to improve regulation and regulatory review, which includes public participation, integration and innovation, flexible approaches, and science. Agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand or repeal them. In accordance with the E.O., the USACE plan is to solicit comments on its Regulations to make the Regulatory Program more effective and less burdensome.

The USACE Regulatory Program's regulations are found at 33 CFR parts 320-332 and 334. The current Regulations were published in the Federal Register on November 13, 1986 (51 FR 41206). These Regulations describe the fundamental procedures, policies, authorities, and guidelines of the U.S. Army Corps of Engineer's Regulatory Program. Since the 1986 Regulations were issued, parts of these regulations have been modified. The changes that have occurred since 1986 include, but are not limited to: the Nationwide Permit regulations at 33 CFR part 330 were amended on November 22, 1991 (56 FR 59110); regulations governing the administrative appeal program at 33 CFR part 331 were added on March 9, 1999 (64 FR 11708) and March 28, 2000 (65 FR 16486); regulations addressing compensatory mitigation for losses of aquatic resources at 33 CFR part 332 were added on April 10, 2008 (73 FR 19594); further revisions to the Clean Water Act regulatory definition of dredged material at 33 CFR part 323 were made on January 17, 2001 (66 FR 4550); final revisions to the Clean Water Act definitions of fill materials and discharge of fill material at 33 CFR part 323 were made on May 9, 2002 (67 FR 31129); revisions to the Clean Water Act regulatory definition of “discharge of dredged material” Final Rule at 33 CFR part 323 were made on December 30, 2008 (73 FR 79641); updates regarding structures in fairways and anchorage areas at 33 CFR part 322 were added on Aug. 29, 1995 (60 FR 44761); a requirement for an avoidance, minimization and compensation statement in applications for activities involving discharge of dredged or fill material at 33 CFR part 325 was added on April 10, 2008 (73 FR 19670); amended Administrative Penalties on June 25, 2004 (69 FR 35518; 33 CFR part 326); the civil monetary penalty inflation adjustment rule at 33 CFR part 326 was added on June 25, 2004 (69 FR 35515); minor editorial changes to reflect the change in title of the National Ocean Service and address at 33 CFR part 325 were made on May 13, 1997 (62 FR 26230). In accordance with the E.O., the USACE plan is to solicit comments regarding the questions posed below in the Proposal Section in order to achieve the goals of the E.O. to make regulations more effective and less burdensome.

The E.O. further directs each agency to periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives. The USACE is proposing the existing five-year reauthorization process of the NWPs, general conditions, and definitions as the periodic review of regulations.

Section 404(e) of the Clean Water Act provides the statutory authority for the Secretary of the Army, after notice and opportunity for public hearing, to issue general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States. Activities authorized by NWPs must be similar in nature, cause only minimal adverse environmental effects when performed separately, and cause only minimal cumulative adverse effect on the aquatic environment. The NWP program is designed to provide timely authorizations for the regulated public while protecting the Nation's aquatic resources. The NWP program allows the Corps to authorize activities with minimal adverse environmental impacts on the aquatic environment in a timely manner. The NWP program also allows the Corps to focus its limited resources on more extensive evaluation of projects that have the potential for causing environmentally damaging adverse effects.

Each five-year review of the NWPs allows for revision of the NWPs, general conditions, and definitions to facilitate clarity for the regulated public, government personnel, and interested parties, while ensuring protection of the aquatic environment. Making the text of the NWPs clearer and easier to understand also facilitates compliance with these permits, which benefits the aquatic environment.

During the NWP reissuance process, there is a request for public comments published in the Federal Register , which complies with the E.O. general principle of allowing for public participation and an open exchange of ideas. While anyone, at any time, may submit suggestions to Corps Headquarters for new NWPs or changes to existing NWPs, comments for the NWP program are normally submitted during the reauthorization process; the most recent notice requesting comments on the NWP program occurred in the Federal Register published on February 16, 2011 (76 FR 9174), with the comment period ending on April 18, 2011. Therefore, USACE is currently complying with the E.O. 13563 direction to periodically review its existing significant regulations. However, there may be additional ways in which the NWP reauthorization process may further comply with E.O. 13563.

The E.O.'s intent is to ensure that regulations are accessible, consistent, written in plain language and are easy to understand, while protecting public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. These goals are what the Regulations improvement and the periodic reissuance of the NWP program would accomplish.

To comply with E.O. 13563, the publication of the Federal Register notice to solicit comments on how the Regulations should be evaluated for modification, streamlining, expansion, or repeal is the USACE's first step to develop a plan that ensures that the agency's regulations are effective and not burdensome. Furthermore, comments are requested pursuant to the E.O. directing each agency to periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives. The publication of the Federal Register notice to solicit comments on the existing NWP Program re-authorization process every five years is part of USACE's plan to ensure the periodic review of regulations.

Input from a wide variety of constituents is important, and applicants, affected landowners, the general public, consultants, tribal, state and local government, and other agencies are likely to have knowledge about the full effects of the regulations on people and the economy, and to offer ideas on how to streamline or improve them. This request for information will inform the USACE's decision on whether adjustment to the regulation is necessary and appropriate, and whether additional guidance, education, or outreach would better assist the Regulation's users, agencies, and the public to address critical issues.

The URL for a Web site that includes the Regulations, as well as all of the Corps Regulatory Program's current regulations and supporting program data and information is http://www.usace.army.mil/CECW/Pages/reg_materials.aspx. Furthermore, each of the 38 Corps districts has issued local public notices announcing the publication of this Federal Register notice and the request for comments. The Corps will evaluate all comments received to develop its list of review priorities, and will publish a notice in the Federal Register that summarizes the comments received and lists the priorities. The Web site will be updated as proposed revisions and final revisions to its regulations occur.

Please email your response to the questions below to regulatory.review@usace.army.mil and be sure to number your responses in association with each question. These questions are not intended to be exhaustive, and respondents are encouraged to raise additional issues or make suggestions unrelated to these questions. Respondents are also encouraged to share examples and a detailed explanation of how the suggestion will support the goals of the Regulations review process. We are seeking public comment for a period of 60 days ending January 17, 2012, after which it will revise the plan and make it available to the public.

1. How should the Corps modify its Regulations to ensure that they are serving their stated purpose efficiently and effectively? Please provide specific recommendations on edits that could be made and suggestions on appropriate outreach and timing.

2. How can we reduce burdens and maintain flexibility for participants in the regulatory process in a way that will promote the protection of waters of the United States via the improvement of the Regulations?

3. How can the process set forth in the Regulations better achieve simplified and efficient outcomes?

4. How can the Regulations be changed to better harmonize with, be consistent with, and coordinate effectively with, other federal regulations and environmental review procedures?

5. How can we ensure that information developed to support findings under the Regulations are guided by objective scientific evidence?

6. Are there better ways to encourage public participation and an open exchange of views as part of the regulatory review? Please cite specific areas where improvements could be made and indicate what tools or mechanisms might be made available to achieve this goal.

7. The NWP program allows for comment and periodic review during the reauthorization process every five years. How else can the periodic review of the NWP program be utilized to comply with this E.O.?

8. How else might we modify, clarify, or improve the Regulations to reduce burdens, promote predictability, and increase efficiency?

We are proposing to improve the Regulations and comply with the direction to perform a periodic regulatory review with the existing reauthorization of the NWP program, which were issued under the authority of Section 404 of the Clean Water Act (33 U.S.C. 1344), Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq. ), and Section 103 of the Marine Protection Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).

On October 27, 2011, the DDOE submitted a revision to its SIP to address Regional Haze for the first implementation period. Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM 2.5 ) ( e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors ( e.g., sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), and in some cases, ammonia (NH 3 ) and volatile organic compounds (VOC)). Fine particle precursors react in the atmosphere to form fine particulate matter, which impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color, and visible distance that one can see. PM 2.5 can also cause serious health effects and mortality in humans and contributes to environmental effects such as acid deposition and eutrophication.

Data from the existing visibility monitoring network, the Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range  1 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 is 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 is less than 30 kilometers or about one-fifth of the visual range that would exist under estimated natural conditions (64 FR 35714, July 1, 1999).

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, impairment of visibility in mandatory Class I Federal areas  2 which impairment results from manmade air pollution.” On December 2, 1980, 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” (45 FR 80084). These regulations represented the first phase in addressing visibility impairment. 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. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714), the RHR. The RHR revised the existing visibility regulations to integrate into the regulation 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 EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in Section II of this notice. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands. Section 51.308(b) requires states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and various Federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.

Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.

The Mid-Atlantic Region Air Management Association (MARAMA), the Northeast States for Coordination Air Use Management (NESCAUM), and the Ozone Transport Commission (OTC) established the Mid-Atlantic/Northeast Visibility Union (MANE-VU) RPO. MANE-VU is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Mid-Atlantic and Northeast corridor of the United States. Member states and tribal governments include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Penobscot Indian Nation, Rhode Island, St. Regis Mohawk Tribe, and Vermont.

Sections 110(a)(1) and 110(a)(2)(D)(i)(II) of the CAA require that within three years of promulgation of a NAAQS, a state must ensure that its SIP, among other requirements, “contains adequate provisions prohibiting any source or other types of emission activity within the State from emitting any air pollutant in amounts which will interfere with measures required to be included in the applicable implementation plan for any other State to protect visibility.” Similarly, section 110(a)(2)(J) requires that such SIP “meet the applicable requirements of part C of (Subchapter I) (relating to visibility protection).”

EPA's 2006 Guidance, entitled “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards,” recognized the possibility that a state could potentially meet the visibility portions of section 110(a)(2)(D)(i)(II) through its submission of a Regional Haze SIP, as required by sections 169A and 169B of the CAA. EPA's 2009 guidance, entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS),” recommended that a state could meet such visibility requirements through its Regional Haze SIP. EPA's rationale supporting this recommendation was that the development of the regional haze SIPs was intended to occur in a collaborative environment among the states, and that through this process states would coordinate on emissions controls to protect visibility on an interstate basis. The common understanding was that, as a result of this collaborative environment, each state would take action to achieve the emissions reductions relied upon by other states in their reasonable progress demonstrations under the RHR. This interpretation is consistent with the requirement in the RHR that a state participating in a regional planning process must include “all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process.” See, 40 CFR 51.308(d)(3)(ii).

The regional haze program, as reflected in the RHR, recognizes the importance of addressing the long-range transport of pollutants for visibility and encourages states to work together to develop plans to address haze. The regulations explicitly require each state to address its “share” of the emission reductions needed to meet the reasonable progress goals for neighboring Class I areas. States working together through a regional planning process, are required to address an agreed upon share of their contribution to visibility impairment in the Class I areas of their neighbors. See, 40 CFR 51.308(d)(3)(ii). Given these requirements, appropriate regional haze SIPs will contain measures that will achieve these emissions reductions and will meet the applicable visibility related requirements of section 110(a)(2).

As a result of the regional planning efforts in the MANE-VU, all states in the MANE-VU region contributed information to a Technical Support System (TSS) which provides an analysis of the causes of haze, and the levels of contribution from all sources within each state to the visibility degradation of each Class I area. The MANE-VU states consulted in the development of reasonable progress goals, using the products of this technical consultation process to co-develop their reasonable progress goals for the MANE-VU Class I areas. The modeling done by MANE-VU relied on assumptions regarding emissions over the relevant planning period and embedded in these assumptions were anticipated emissions reductions in each of the states in MANE-VU, including reductions from BART and other measures to be adopted as part of the state's long term strategy for addressing regional haze. The reasonable progress goals in the regional haze SIPs that have been prepared by the states in the MANE-VU region are based, in part, on the emissions reductions from nearby states that were agreed on through the MANE-VU process.

The District of Columbia submitted a Regional Haze SIP on October 27, 2011, to address the requirements of the RHR. On December 6, 2007 and January 11, 2008, the District of Columbia submitted its 1997 Ozone NAAQS infrastructure SIP. On August 25, 2008 and September 22, 2008, the District of Columbia submitted its 1997 PM 2.5 NAAQS infrastructure SIP. On September 21, 2009, the District of Columbia submitted an infrastructure SIP for the 2006 PM 2.5 NAAQS. EPA will act on these submittals in a separate rulemaking action.

In the October 27, 2011 submittal, the District of Columbia indicated that its Regional Haze SIP would meet the requirements of the CAA, section 110(a)(2)(D)(i)(II), regarding visibility for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS. EPA has reviewed the District of Columbia's Regional Haze SIP and, as explained in section IV of this action, proposes to find that the District of Columbia's Regional Haze submittal meets the portions of the requirements of the CAA sections 110(a)(2) relating to visibility protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS.

Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.

The RHR establishes the deciview as the principal metric or unit for expressing visibility. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility expressed in deciviews is determined by using air quality measurements to estimate light extinction and then transforming the value of light extinction using a logarithm function. The deciview is a more useful measure for tracking progress in improving visibility than light extinction itself because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility at one deciview. 3 The deciview is used in expressing RPGs (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by anthropogenic air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions, i.e., anthropogenic sources of air pollution would no longer impair visibility in Class I areas.

To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents entitled, EPA's Guidance for Estimating Natural Visibility conditions under the Regional Haze Rule, September 2003, (EPA-454/B-03-005 located at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_envcurhr_gd.pdf ), (hereinafter referred to as “EPA's 2003 Natural Visibility Guidance”) and Guidance for Tracking Progress Under the Regional Haze Rule, September 2003, (EPA-454/B-03-004 located at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_gd.pdf ), (hereinafter referred to as “EPA's 2003 Tracking Progress Guidance”).

For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline period is considered the time from which improvement in visibility is measured.

The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two RPGs ( i.e., two distinct goals, one for the “best” and one for the “worst” days) for every Class I area for each (approximately) 10-year implementation period. The RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural ( i.e., “background”) visibility conditions. In setting RPGs, states must provide for an improvement in visibility for the most impaired days over the (approximately) 10-year period of the SIP, and ensure no degradation in visibility for the least impaired days over the same period.

States have significant discretion in establishing RPGs but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's Guidance for Setting Reasonable Progress Goals under the Regional Haze Program, (“EPA's Reasonable Progress Guidance”), July 1, 2007, memorandum from William L. Wehrum, Acting Assistant Administrator for Air and Radiation, to EPA Regional Administrators, EPA Regions 1-10 (pp. 4-2, 5-1). In setting the RPGs, states must also consider the rate of progress needed to reach natural visibility conditions by 2064 (referred to as the “uniform rate of progress” or the “glidepath”) and the emission reduction measures needed to achieve that rate of progress over the 10-year period of the SIP. Uniform progress towards achievement of natural conditions by the year 2064 represents a rate of progress which states are to use for analytical comparison to the amount of progress they expect to achieve. In setting RPGs, each state with one or more Class I areas (“Class I state”) must also consult with potentially “contributing states,” i.e., other nearby states with emission sources that may be affecting visibility impairment at the Class I state's areas. See, 40 CFR 51.308(d)(1)(iv).

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, 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 towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources  4 built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” as determined by the state. Under the RHR, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. 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 greater reasonable progress towards improving visibility than BART.

On July 6, 2005, EPA published 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”) to assist states in determining which of their sources should be subject to the BART requirements and in determining appropriate emission limits for each applicable source. See, 70 FR 39104. In making a BART determination for a fossil fuel-fired electric generating plant with a total generating capacity in excess of 750 megawatts (MW), a state must use the approach set forth in the BART Guidelines. A state is encouraged, but not required, to follow the BART Guidelines in making BART determinations for other types of sources.

States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO 2 , NO X , and PM. EPA has stated that states should use their best judgment in determining whether VOC or NH 3 compounds impair visibility in Class I areas.

Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciview.

In their SIPs, states must identify potential BART sources, described as “BART eligible sources” in the RHR, and document their BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor.

A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP. CAA section 169(g)(4). 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.

As noted above, the RHR allows states to implement an alternative program in lieu of BART so long as the alternative program can be demonstrated to achieve greater reasonable progress toward the national visibility goal than would BART. Under regulations issued in 2005 revising the regional haze program, EPA made just such a demonstration for the Clean Air Interstate Rule (CAIR) (70 FR 39104, July 6, 2005). EPA's regulations provide that states participating in the CAIR cap and trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP or which remain subject to the CAIR Federal Implementation Plan (FIP) in 40 CFR part 97, do not require affected BART eligible electric generating units (EGUs) to install, operate, and maintain BART for emissions of SO 2 and NO X (40 CFR 51.308(e)(4)). Since CAIR is not applicable to emissions of PM, states were still required to conduct a BART analysis for PM emissions from EGUs subject to BART for that pollutant.

CAIR, as originally promulgated, required 28 states and the District of Columbia to reduce emissions of SO 2 and NO X that significantly contributed to, or interfered with maintenance of the 1997 NAAQS for fine particulates and/or the 1997 NAAQS for 8-hour ozone in any downwind state. See, 70 FR 25162 (May 12, 2005). CAIR established emissions budgets for SO 2 and NO X for states found to contribute significantly to nonattainment in downwind states and required these states to submit SIP revisions that implemented these budgets. States had the flexibility to choose which control measures to adopt to achieve the budgets, including participation in EPA-administered cap-and-trade programs addressing SO 2 , NO X -annual, and NO X -ozone season emissions. In 2006, EPA promulgated FIPs for all states covered by CAIR to ensure the reductions were achieved in a timely manner. On July 11, 2008, the DC Circuit issued its decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety. See, North Carolina v. EPA, 531 F.3d 836 (DC Cir. 2008). However, in response to EPA's petition for rehearing, the Court issued an order remanding CAIR to EPA without vacating either CAIR or the CAIR FIPs. The Court thereby left the EPA CAIR rule and CAIR SIPs and FIPs in place in order to “temporarily preserve the environmental values covered by CAIR” until EPA replaces it with a rule consistent with the court's opinion. See, North Carolina v. EPA, 550 F.3d at 1178. The Court directed EPA to “remedy CAIR's flaws” consistent with its July 11, 2008, opinion but declined to impose a schedule on EPA for completing that action.

In response to the Court's decision, EPA has issued a new rule to address interstate transport of NO X and SO 2 in the eastern United States. See, 76 FR 48208 (August 8, 2011). EPA explained in that action that EPA is promulgating the Cross-State Air Pollution Rule (CSAPR) as a replacement for (not a successor to) CAIR's SO 2 and NO X emissions reduction and trading programs. In other words, the CAIR and CAIR FIP requirements only remain in force to address emissions through the 2011 control periods. As part of the CSAPR, EPA finalized regulatory changes to sunset the CAIR and CAIR FIPs for control periods in 2012 and beyond. See, 76 FR 48322. EPA also stated in this final action that it has not conducted a technical analysis to determine whether compliance with the CSAPR would satisfy the requirements of the RHR addressing alternatives to BART. For that reason, EPA did not make a determination or establish a presumption that compliance with the CSAPR satisfies BART-related requirements for EGUs. EPA is now in the process of determining whether compliance with the CSAPR will provide for greater reasonable progress toward improving visibility than source-specific BART controls for EGUs but no such determination has yet been proposed.

Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a long-term strategy in their regional haze SIPs. The long-term strategy is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The long-term strategy must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state. See, 40 CFR 51.308(d)(3).

When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies. See, 40 CFR 51.308(d)(3)(i). In such cases, the contributing state must demonstrate that it has included, in its SIP, all measures necessary to obtain its share of the emission reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between states may be required to sufficiently address interstate visibility issues. This is especially true where two states belong to different RPOs.

States should consider all types of anthropogenic sources of visibility impairment in developing their long-term strategy, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their long-term strategy: (1) Emission reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the long-term strategy. See, 40 CFR 51.308(d)(3)(v).

As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the long-term strategy for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated long-term strategy for addressing RAVI and regional haze, and the state must submit the first such coordinated long-term strategy with its first regional haze SIP. Future coordinated long-term strategy's, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's long-term strategy must report on both regional haze and RAVI impairment and must be submitted to EPA as a SIP revision.

Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network, i.e., review and use of monitoring data from the network. The monitoring strategy is due with the first regional haze SIP and it must be reviewed every five years. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met.

The SIP must also provide for the following:

• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;

• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;

• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;

• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and

• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.

The RHR requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.

The RHR requires that states consult with FLMs before adopting and submitting their SIPs. See, 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the RPGs and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.

On October 27, 2011, the DDOE submitted revisions to the District of Columbia SIP to address regional haze as required by EPA's RHR.

The District of Columbia has no Class I areas within its borders. There are, however, five Class I areas within 300 kilometers of the District. These five Class I areas are Shenandoah National Park, Dolly Sods Wilderness, Otter Creek Wilderness, Brigantine Wilderness, and James River Face Wilderness. Shenandoah National Park in Virginia is the closest Class I area to the District of Columbia. The next closest areas are the Brigantine Wilderness Area in New Jersey, the Dolly Sods and Otter Creek Wilderness Areas in West Virginia, and James River Face Wilderness Area in Virginia.

EPA's RHR requires states to address regional haze in each mandatory Class I Federal area located within its state and in each mandatory Class I Federal area located outside the state, which may be affected by emissions from its facilities. The RHR requires states that may reasonably cause or contribute to visibility impairment in one or more Class I areas to develop a long-term strategy that addresses regional haze visibility impairment for each affected Class I area. The MANE-VU states with Class I areas established a contribution threshold for determining whether a state could be considered to affect an area. The criteria for contribution was established by the MANE-VU states to be greater than 0.1 microgram per cubic meter (μg/m 3 ) or two percent of sulfate pollution to a Class I area. MANE-VU concluded that the District did not contribute greater than 0.1 μg/m 3 or two percent sulfate contribution to any nearby Class I areas, and so the District of Columbia was not identified as influencing the visibility impairment of any Class I area. However, the District of Columbia is responsible for developing a regional haze SIP that describes its long-term emission strategy, its role in the consultation processes, and how the SIP meets the other requirements in EPA's regional haze regulations. As the District of Columbia has no Class I areas within its borders, the District is not required to address the following Regional Haze SIP elements: (a) The calculation of baseline and natural visibility conditions, (b) the establishment of reasonable progress goals, (c) monitoring requirements, and (d) RAVI requirements.

As described in Section II. E of this action, the long-term strategy is a compilation of all the control measures relied on by the state to achieve the RPG for the Class I areas affected by emissions from the District. The District of Columbia's long-term strategy for the first implementation period addresses the emissions reductions from Federal, state, and local controls that take effect in the District from the baseline period starting in 2002 until 2018. The District of Columbia also participated in the MANE-VU regional strategy development process. As a participant, the District of Columbia supported a regional approach towards deciding which control measures to pursue for regional haze. The decision as to appropriate control measures was based on technical analyses documented in the following reports by MANE-VU and included as appendices to the District of Columbia's regional haze SIP revision: (a) Contributions to Regional Haze in the Northeast and Mid-Atlantic United States; (b) Assessment of Reasonable Progress for Regional Haze in MANE-VU Class I Areas; (c) Five-Factor Analysis of BART-Eligible Sources: Survey of Options for Conducting BART Determinations; and (d) Assessment of Control Technology Options for BART-Eligible Sources: Steam Electric Boilers, Industrial Boilers, Cement Plants, and Paper and Pulp Facilities.

The District of Columbia developed its long-term strategy in coordination with MANE-VU. As part of this process, the District and MANE-VU identified the emissions units within the District of Columbia likely to have the largest impacts currently on visibility at any of the nearby Class I areas. The District and MANE-VU, also estimated emissions reductions from sources in the District for 2018 as a result of all controls required under Federal and state regulations for the 2002-2018 period (including BART), and compared projected visibility improvement with the uniform rate of progress for the nearby Class I areas.

The emissions inventory used in the regional haze technical analyses was developed by MARAMA for MANE-VU with assistance from the District of Columbia. The 2018 emissions inventory was developed by projecting 2002 emissions, and assuming emissions growth due to projected increases in economic activity as well as applying reductions expected from Federal and state regulations affecting the emissions of VOC and the visibility-impairing pollutants NO X , PM 10 , PM 2.5 , and SO 2 . The BART guidelines direct states to exercise judgment in deciding whether VOC and NH 3 impair visibility in their Class I area(s). MANE-VU demonstrated that anthropogenic emissions of sulfates are the major contributor to PM 2.5 mass and visibility impairment at Class I areas in the Northeast and Mid-Atlantic region. MANE-VU determined that the total ammonia emissions in the MANE-VU region are extremely small. In addition, since VOC emissions are aggressively controlled through the District of Columbia SIP, the pollutants the District of Columbia considered under BART and RPG are NO X , PM 10 , PM 2.5 , and SO 2 .

MANE-VU developed emissions inventories for four inventory source classifications: (1) Stationary point sources, (2) stationary area sources, (3) off-road mobile sources, and (4) on-road mobile sources. The New York Department of Environmental Conservation also developed an inventory of biogenic emissions for the entire MANE-VU region. Stationary point sources are those sources that emit greater than a specified tonnage per year, depending on the pollutant, with data provided at the facility level. Stationary area sources are those sources whose individual emissions are relatively small, but due to the large number of these sources, the collective emissions from the source category could be significant. Off-road mobile sources are equipment that can move but do not use the roadways. On-road mobile source emissions are automobiles, trucks, and motorcycles that use the roadway system. The emissions from these sources are estimated by vehicle type and road type. Biogenic sources are natural sources like trees, crops, grasses, and natural decay of plants. Stationary point sources emission data is tracked at the facility level. For all other source types emissions are summed on the county level.

There are many Federal and state control programs being implemented that MANE-VU and the District of Columbia anticipate will reduce emissions between the baseline period and 2018. To assess emissions reductions from ongoing air pollution control programs, BART, and reasonable progress goals, MANE-VU developed two 2018 emission control scenarios called “on-the-books/on-the-way” (OTB/W) scenario and “beyond on the way” (BOTW) scenario.

The OTB/W scenario included emissions growth and control measures that were either already “on the books” (promulgated as of June 15, 2005) or were considered well “on the way” to being implemented because they were proposed, but not yet final. The emissions inventory provided by the District of Columbia for the OTB/W 2018 projections is based on adopted and enforceable requirements. The ongoing air pollution control programs relied upon by the District of Columbia for the OTB/W projections include the NO X SIP Call; NO X and/or VOC reductions from the control rules in the 1-hour and 8-hour ozone SIPs for the District of Columbia; NO X OTC 2001 Model Rule for Industrial, Commercial, and Institutional (ICI) Boilers; and Industrial Boiler/Process Heater Maximum Achievable Control Technology (MACT). Non-EGU point source control factors were not included in the inventory for the District. Area source control factors that applied for the District of Columbia included the 2001 OTC model rules (consumer products, architectural and industrial maintenance (AIM) coatings, portable fuel containers, and mobile equipment repair and refinishing; and solvent cleaning); and on-board vapor recovery. In addition, Federally-enforceable controls were incorporated in the EGU and mobile source models. These include CAIR; the Federal 2007 heavy duty diesel engine standards for non-road trucks and buses; the Federal Tier 2 tailpipe controls for the on-road vehicles; Federal large spark ignition and recreational vehicle controls; and EPA's non-road diesel rules.

The District of Columbia also relied on emission reductions from various Federal MACT rules in the development of the 2018 emission inventory projections. These MACT rules include the combustion turbine and reciprocating internal combustion engines MACT, the industrial boiler and process heaters MACT and the 2, 4, 7, and 10 year MACT standards. On July 30, 2007, the U.S. District Court of Appeals mandated the vacatur and remand of the Industrial Boiler MACT Rule. 5 This MACT was vacated since it was directly affected by the vacatur and remand of the Commercial and Industrial Solid Waste Incinerator (CISWI) Definition Rule. EPA proposed a new Industrial Boiler MACT rule to address the vacatur on June 4, 2010, (75 FR 32006) and issued a final rule on March 21, 2011 (76 FR 15608). The District of Columbia's modeling included emission reductions from the vacated Industrial Boiler MACT rule. The District of Columbia did not redo its modeling analysis when the rule was re-issued. However, the expected reductions in SO 2 and PM are small relative to the District of Columbia's inventory. Therefore, EPA finds the expected reductions of the new rule acceptable since the final rule requires compliance by 2014, it provides the District of Columbia time to assure the required controls are in place prior to the end of the first implementation period in 2018. In addition, the RHR requires that any resulting differences between emissions projections and actual emissions reductions that may occur will be addressed during the five-year review prior to the next 2018 regional haze SIP.

The other emissions control scenario MANE-VU considered was a “beyond on the way” (BOTW) scenario that included potential additional control measures to attain the ozone and fine particulate NAAQS and to meet regional haze goals. Non-EGU point source controls included NO X measures (asphalt production plants; cement kilns; glass and fiberglass furnaces; low sulfur heating oil for commercial and institutional units; and ICI boilers using natural gas, #2 or #4 or #6 fuel oil, and coal); one primary PM 10 and PM 2.5 measure (commercial heating oil); SO 2 measures (commercial heating oil and ICI boilers using #2 or #4 or #6 fuel oil and coal); and a VOC measure (adhesives and sealants application). Area source control factors included NO X measures (ICI boilers using natural gas, #2 and #4 and #6 fuel oil, and coal; and residential and commercial home heating oil); primary PM 10 and PM 2.5 measures (residential and commercial home heating oil); SO 2 measures (residential and commercial home heating oil and ICI boilers using distillate oil); and VOC measures (adhesives and sealants; emulsified and cutback asphalt paving; consumer products; and portable fuel containers). Additional potential and reasonable measures were analyzed using a four factor analysis. The list of measures was further refined and incorporated into a second BOTW, or “best and final” inventory, and included a “top 167 EGU stacks strategy”; a low sulfur fuel strategy (including second phase, to 15 parts per million (ppm) limit); a BART implementation strategy; and a continued evaluation of additional control measures. For the District of Columbia, the difference between the two BOTW inventories is negligible.

Since the District of Columbia does not contribute more than 0.1 μg/m 3 to visibility impairment at any Class I area, the District chose not to adopt some measures in the BOTW or “best and final” scenarios and selected as its long-term strategy the OTB/W scenario. EPA is proposing to find that the control measures in the OTB/W scenario are reasonable for the District's long-term strategy because the District's contribution to regional haze is less than the 0.1 μg/m 3 and two percent sulfate thresholds established by MANE-VU. The District's long-term strategy is not the same as the long-term strategy recommended by MANE-VU, but emission reductions will provide sufficient emissions reductions for the District to obtain its share of the of the emissions reductions needed to meet the reasonable progress goal for the five Class I areas within 300 kilometers of the District of Columbia. Tables 1 and 2 are summaries of the 2002 baseline and 2018 estimated emissions inventories for the District of Columbia based on the OTB/W scenario. The 2018 estimated emissions include emission growth as well as emission reductions due to ongoing emission control strategies, BART, and reasonable progress goals.

MANE-VU performed modeling for the regional haze long-term strategy for the 11 Mid-Atlantic and Northeast states and the District of Columbia. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. MANE-VU used the following modeling system:

• Meteorological Model: The Fifth-Generation Pennsylvania State University/National Center for Atmospheric Research (NCAR) Mesoscale Meteorological Model (MM5) version 3.6 is a nonhydrostatic, prognostic meteorological model routinely used for urban- and regional-scale photochemical, PM 2.5 , and regional haze regulatory modeling studies.

• Emissions Model: The Sparse Matrix Operator Kernel Emissions (SMOKE) version 2.1 modeling system is an emissions modeling system that generates hourly gridded speciated emission inputs of mobile, non-road mobile, area, point, fire, and biogenic emission sources for photochemical grid models.

• Air Quality Model: The EPA's Models-3/Community Multiscale Air Quality (CMAQ) version 4.5.1 is a photochemical grid model capable of addressing ozone, PM, visibility and acid deposition at a regional scale.

• Air Quality Model: The Regional Model for Aerosols and Deposition (REMSAD), version 8, is an Eulerian grid model that was primarily used to determine the attribution of sulfate species in the Eastern U.S. via the species-tagging scheme.

• Air Quality Model: The California Puff Model (CALPUFF), version 5 is a non-steady-state Lagrangian puff model used to access the contribution of individual states' emissions to sulfate levels at selected Class I receptor sites.

CMAQ modeling of regional haze in the MANE-VU region for 2002 and 2018 was carried out on a grid of 12 x 12 kilometer (km) cells that covers the 11 MANE-VU states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont) and the District of Columbia and states adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36 x 36 km grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. MANE-VU conducted an in-depth analysis which resulted in the selection of the entire year of 2002 (January 1-December 31) as the best period of meteorology available for conducting the CMAQ modeling. The MANE-VU states modeling was developed consistent with EPA's Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5, and Regional Haze , located at http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf , (EPA-454/B-07-002), April 2007, and EPA document, Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations, located at http://www.epa.gov/ttnchie1/eidocs/eiguid/index.html , EPA-454/R-05-001, August 2005, updated November 2005 (“EPA's Modeling Guidance”).

MANE-VU examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the long-term strategy and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the LTS and to compare predicted, modeled visibility levels with those on the uniform rate of progress. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. MANE-VU used a diverse set of statistical parameters from the EPA's Modeling Guidance to stress and examine the model and modeling inputs. Once MANE-VU determined the model performance to be acceptable, MANE-VU used the model to assess the 2018 RPGs using the current and future year air quality modeling predictions, and compared the RPGs to the uniform rate of progress.

In accordance with 40 CFR 51.308(d)(3), the District of Columbia provided the appropriate supporting documentation for all required analyses used to determine the District's long-term strategy. The technical analyses and modeling used to develop the glidepath and to support the long-term strategy are consistent with EPA's RHR, and interim and final EPA Modeling Guidance. EPA accepts the MANE-VU technical modeling to support the long-term strategy and determine visibility improvement for the uniform rate of progress because the modeling system was chosen and used according to EPA Modeling Guidance. EPA agrees with the MANE-VU model performance procedures and results, and that the CMAQ is an appropriate tool for the regional haze assessments for the District of Columbia long-term strategy and regional haze SIP.

An important step toward identifying reasonable progress measures is to identify the key pollutants contributing to visibility impairment at each Class I area. To understand the relative benefit of further reducing emissions from different pollutants, MANE-VU developed emission sensitivity model runs using CMAQ to evaluate visibility and air quality impacts from various groups of emissions and pollutant scenarios in the Class I areas on the 20 percent worst visibility days. Regarding which pollutants are most significantly impacting visibility in the MANE-VU region, MANE-VU's contribution assessment, demonstrated that sulfate is the major contributor to PM 2.5 mass and visibility impairment at Class I areas in the Northeast and Mid-Atlantic Region. Sulfate particles commonly account for more than 50 percent of particle-related light extinction at northeastern Class I areas on the clearest days and for as much as or more than 80 percent on the haziest days. In particular, for the Brigantine National Wildlife Refuge Class I area, on the 20 percent worst visibility days in 2000-2004, sulfate accounted for 66 percent of the particle extinction. After sulfate, organic carbon (OC) consistently accounts for the next largest fraction of light extinction. Organic carbon accounted for 13 percent of light extinction on the 20 percent worst visibility days for Brigantine, followed by nitrate that accounts for 9 percent of light extinction.

The emissions sensitivity analyses conducted by MANE-VU predict that reductions in SO 2 emissions from EGU and non-EGU industrial point sources will result in the greatest improvements in visibility in the Class I areas in the MANE-VU region, more than any other visibility-impairing pollutant. As a result of the dominant role of sulfate in the formation of regional haze in the Northeast and Mid-Atlantic Region, MANE-VU concluded that an effective emissions management approach would rely heavily on broad-based regional SO 2 control efforts in the eastern United States. As stated above, the District of Columbia relied on technical analyses developed by MANE-VU to demonstrate the District's emissions impact on neighboring Class I areas. The “Contributions to Regional Haze in the Northeast and Mid-Atlantic United States” document used several analytical techniques, such as REMSAD, emissions divided by distance (Q/D), and CALPUFF, to analyze visibility at MANE-VU and neighboring Class I areas. These findings resulted in the identification of the most significant contributors to visibility impairment in MANE-VU and other neighboring Class I areas. Table 3 shows the overall percent contribution of sulfate from the District of Columbia to the three closest Class I areas. The District of Columbia does not contribute more than two percent of sulfate to any nearby Class I area, which is the threshold established by MANE-VU states with Class I areas for contributing to meet the RPG for 2018. The highest impacts, at the Brigantine Wilderness Area and Shenandoah National Park, are well below this threshold. For this reason, no MANE-VU states asked the District of Columbia for emissions reductions to the RPGs in these Class I areas. The Shenandoah National Park is in Virginia and the Dolly Sods Wilderness Area is in West Virginia. Both, Virginia and West Virginia are members of the Visibility Improvement State and Tribal Association of the Southeast (VISTAS) RPO. VISTAS conducted its own contribution assessment and similarly concluded that no additional emission reductions from the District of Columbia were necessary in this first planning period.

Since the District of Columbia does not have a Class I area, it is not required to establish RPGs. Although the District of Columbia was not identified as influencing the visibility impairment of any Class I area, as a member of MANE-VU, the District of Columbia worked in cooperation with the MANE-VU Class I states as those states established reasonable progress goals for their Class I areas.

BART is an element of the District of Columbia's long-term strategy. The BART regional haze requirements consist of three components: (a) Identification of all the BART eligible sources; (b) an assessment of whether the BART eligible sources are subject to BART; and (c) the determination of the BART controls.

The first component of a BART evaluation is to identify all the BART eligible sources. The BART eligible sources were identified by utilizing the criteria in the BART Guidelines as follows:

• Determine whether one or more emissions units at the facility fit within one of the 26 categories listed in the BART Guidelines (70 FR 39158-39159);

• Determine whether the emission unit(s) was in existence on August 7, 1977 and begun operation after August 6, 1962;

• Determine whether potential emissions of SO 2 , NO X , and PM 10 from subject units are 250 tons or more per year.

The BART guidelines recommend addressing SO 2 , NO X , and PM 10 as visibility-impairment pollutants and leave it up to the discretion of states to evaluate VOC or ammonia emissions. MANE-VU demonstrated that anthropogenic emissions of sulfates are the major contributor to PM 2.5 mass and visibility impairment at Class I areas in the Northeast and Mid-Atlantic region. MANE-VU determined that the total ammonia emissions in the MANE-VU region are extremely small. In addition, since VOC emissions are aggressively controlled through the District of Columbia SIP, the pollutants the District of Columbia considered under BART are NO X , PM 10 , PM 2.5 , and SO 2 .

Based on a review of emissions inventory data, air quality permits, and other data on the air pollution sources, the District of Columbia identified two BART eligible sources located at one facility, the Benning Road Generating Station (BRGS). Potomac Power Resources, LLC (PPR) owns the BRGS. PPR is a wholly owned but unregulated subsidiary of Pepco Energy Services, Inc. (PES), which manages the assets of BRGS on behalf of PPR. The BRGS typically operates only during high demand periods, mostly during hot spells in the summer or perhaps during very cold conditions of the winter months. The two BART-eligible units at BRGS are two oil-fired steam electric generating units (EGUs), Units 15 and 16. Units 15 and 16 were installed in 1968 and 1972, respectively, and both have a potential to emit of more than 250 tons per year of a visibility impairing pollutant.

The second component of the BART evaluation is to determine whether a BART eligible source may reasonably be anticipated to cause or contribute to visibility impairment at any Class I area. Those sources that do are subject to BART. See 40 CFR 51.308(e)(1)(ii). As discussed in the BART guidelines, a state may choose to consider all BART eligible sources to be subject to BART (70 FR 39161). In June 2004, the MANE-VU Board decided that because of the collective importance of BART sources, BART determinations should be made by the MANE-VU states for each BART eligible source. Consistent with that decision, the District of Columbia identified the two BART eligible sources at the BRGS as subject to BART.

The final component of a BART evaluation is making BART determinations for all BART subject sources. Initially, the District of Columbia planned to use its participation in CAIR to meet the BART requirements for SO 2 and NO X for Units 15 and 16 at BRGS. For PM, PES agreed to a permit condition to address emissions. PES agreed that it would either shut down the two EGUs by December 17, 2012 or accept a de minimis cap on actual emissions of PM 10 of 15 tons per year from both Units 15 and 16.

More recently, however, PES committed to accept a permit condition that would require the two BART units at the BRGS to cease operation by December 17, 2012, with no alternative conditions in lieu of shutting down. In response to the PES commitment, the District of Columbia established federally enforceable terms and conditions in a Title V permit for Units 15 and 16 at the BRGS, and as part of its Regional Haze SIP revision included condition III.a.2.D. Compliance with Requirements for Protection of Visibility of the Title V Operation Permit/Chapter 3 Permit, No.026-R1, for BRGS. Condition III.a.2.D is the only condition of the permit that the District of Columbia requested to be considered as part of the SIP revision to address the CAA's requirements for Regional Haze.

The shutdown of Units 15 and 16 will result in more emissions reductions than would have resulted from CAIR and in more emissions reductions than the reductions modeled by MANE-VU in the OTB/W control scenario. Table 4 demonstrates that the closure of the units will result in 83 tons of SO 2 reductions and 103 tons of NO X reductions, in addition to those anticipated under the OTB/W scenario in the inventory of emissions for the District of Columbia. There will also be additional PM reductions. These reductions beyond those anticipated earlier will further help states with Class I areas meet the reasonable progress goals for 2018.

On May 10, 2006, the MANE-VU State Air Directors adopted the Inter-RPO State/Tribal and FLM Consultation Framework that documented the consultation process within the context of regional haze planning, and was intended to create greater certainty and understanding among RPOs. MANE-VU states held ten consultation meetings and/or conference calls from March 1, 2007 through March 21, 2008. In addition to MANE-VU members attending these meetings and conference calls, participants from VISTAS, Midwest RPO, and the relevant Federal Land Managers were also in attendance. In addition to the conference calls and meeting, the FLMs were given the opportunity to review and comment on each of the technical documents developed by MANE-VU.

On September 8, 2011, the District of Columbia submitted a draft Regional Haze SIP to the relevant FLMs for review and comment pursuant to 40 CFR 51.308(i)(2). The FLMs provided comments on the draft Regional Haze SIP in accordance with 40 CFR 51.308(i)(3). The comments received from the FLMs were addressed and incorporated in the District of Columbia's SIP revision. On October 11, 2011, District of Columbia made its Regional Haze SIP available for public comment. No comments were received. To address the requirement for continuing consultation procedures with the FLMs under 40 CFR 51.308(i)(4), the District of Columbia commits in their SIP to ongoing consultation with the FLMs on Regional Haze issues throughout the implementation period of the SIP.

Consistent with the requirements of 40 CFR 51.308(g), the District of Columbia has committed to submitting a report on reasonable progress (in the form of a SIP revision) to the EPA every five years following the initial submittal of its regional haze SIP.

EPA is proposing to approve the revision to the District of Columbia SIP submitted by the District of Columbia through the DDOE on October 27, 2011 that addresses regional haze for the first implementation period. EPA is proposing to make a determination that the District of Columbia Regional Haze SIP contains the emission reductions needed to achieve the District of Columbia's share of emission reductions agreed upon through the regional planning process. Furthermore, the District of Columbia's Regional Haze Plan ensures that emissions from the District of Columbia will not interfere with the reasonable progress goals for neighboring states' Class I areas. Accordingly, EPA is proposing to find that this revision meets the applicable visibility related requirements of CAA section 110(a)(2) including but not limited to 110(a)(2)(D)(i)(II) and 110(a)(2)(J), relating to visibility protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 p.m. 2.5 NAAQS. EPA is also proposing to conclude that the Regional Haze Plan submitted by the District of Columbia also satisfies the BART requirements of section 169A of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 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 EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule approving the District of Columbia's Regional Haze Plan does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Throughout this document, “we,” “us,” and “our” means EPA.

Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may reasonably be anticipated to endanger public health and welfare,” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect human health with an adequate margin of safety, and the secondary standard is designed to protect public welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter (PM), and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Also, these standards provide information to residents of the United States about the air quality in their communities.

The SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by section 110 and other provisions of the Act. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emissions inventories, monitoring networks, and modeling demonstrations. Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally-enforceable SIP. Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin.

Under sections 110(a)(1) and (2) of the Act, states are required to submit SIPs that provide for the implementation, maintenance, and enforcement (the infrastructure) of a new or revised NAAQS within three years following the promulgation of the NAAQS, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the specific infrastructure elements that must be incorporated into the SIPs, including for example, requirements for emission inventories, new source review (NSR), air pollution control measures, and monitoring that are designed to assure attainment and maintenance of the NAAQS. Table 1 in Section D of this rulemaking provides a list of all 14 infrastructure elements. 1

On July 18, 1997, we published new and revised NAAQS for ozone (62 FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour standard of 0.08 parts per million (ppm) to replace the 1-hour standard of 0.12 ppm. For PM we set a new annual and a new 24-hour NAAQS for particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (denoted PM 2.5 ). The annual PM 2.5 standard was set at 15 micrograms per cubic meter (μg/m 3 ). The 24-hour PM 2.5 standard was set at 65 μg/m 3 . On October 17, 2006, we published revised standards for PM (71 FR 61144). For PM 2.5 , the annual standard of 15 μg/m 3 was retained, and the 24-hour standard was revised to 35 μg/m 3 . For PM 10 the annual standard was revoked, and the 24-hour standard (150 μg/m 3 ) was retained. For more information on these standards, please see the 1997 and 2006 Federal Register notices (62 FR 38856, 62 FR 38652, and 71 FR 61144).

Thus, states were required to submit such SIPs for the 1997 8-hour ozone and PM 2.5 NAAQS to EPA no later than June 2000. 2 However, intervening litigation over the 1997 8-hour ozone and PM 2.5 NAAQS created uncertainty about how to proceed, and many states did not provide the required “infrastructure” SIP submission for these newly promulgated NAAQS.

On March 4, 2004, Earthjustice submitted a notice of intent to sue related to EPA's failure to issue findings of failure to submit related to the infrastructure requirements for the 1997 8-hour ozone and PM 2.5 NAAQS. EPA entered into a consent decree with Earthjustice which required EPA, among other things, to complete a Federal Register notice announcing EPA's determinations pursuant to section 110(k)(1)(B) of the Act as to whether each state had made complete submissions to meet the requirements of section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA received an extension of the date to complete this Federal Register notice until March 17, 2008, based upon agreement to make the findings with respect to submissions made by January 7, 2008. In accordance with the consent decree, EPA made completeness findings for each state based upon what the Agency had received from each state as of January 7, 2008. With regard to the 1997 PM 2.5 NAAQS, EPA entered into a consent decree with Earthjustice, which required EPA, among other things, to complete a Federal Register notice announcing EPA's determinations pursuant to section 110(k)(1)(B) of the Act as to whether each state had made complete submissions to meet the requirements of section 110(a)(2) for the 1997 PM 2.5 NAAQS by October 5, 2008.

On March 27, 2008, and October 22, 2008, we published findings concerning whether states had made the 110(a)(2) submissions for the 1997 ozone (73 FR 16205) and PM 2.5 standards (73 FR 62902). In the March 27, 2008 action, we found that Oklahoma made submissions that addressed some, but not all of the requirements of section 110(a)(2) of the Act necessary to implement the 1997 8-hour ozone NAAQS. As required by section 110(a)(2)(C) and (J), Oklahoma had failed to submit a SIP addressing changes to the part C Prevention of Significant Deterioration (PSD) permit program required by the November 29, 2005 (70 FR 71612, page 71699) final rule that made nitrogen oxides (NO X ) a precursor for ozone in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21. In the October 22, 2008 action, we found that Oklahoma failed to make a submittal to satisfy the requirements of section 110(a)(2) of the Act necessary to implement the 1997 PM 2.5 NAAQS.

On October 2, 2007 we issued “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards,” Memorandum from William T. Harnett, Director, Air Quality Policy Division (AQPD), Office of Air Quality Planning and Standards (OAQPS). 3 On September 25, 2009, we issued “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS),” Memorandum also from William T. Harnett, Director, AQPD, OAQPS. Each of these guidance memos addresses the SIP elements found in 110(a)(2). In each of these guidance memos, the guidance states that, to the extent that existing SIPs already meet the requirements, states need only certify that fact to us.

On December 5, 2007 the ODEQ submitted a letter certifying that the Oklahoma SIP includes all the requirements in section 110(a)(1) and (2) of the Act for implementation of the 1997 8-hour ozone NAAQS. The letter also stated that ODEQ would evaluate the particulate matter provisions of the Oklahoma SIP for consistency with Federal requirements.

On June 24, 2010 the ODEQ submitted a letter certifying that the Oklahoma SIP includes all the requirements in section 110(a)(1) and (2) of the Act for implementation of the 1997 PM 2.5 NAAQS. Attached to the certification letter was supporting information that identified the Oklahoma SIP provisions, regulations and statutes that support the section 110(a)(2) infrastructure elements for the NAAQS. At this time, ODEQ also submitted revisions to their PSD SIP that addressed NO X as a precursor to ozone. EPA approved the SIP revisions incorporating NO X as an ozone precursor (see 75 FR 72695, November 26, 2010).

On April 5, 2011 the ODEQ submitted a letter, including supporting information, certifying that the Oklahoma SIP includes all the requirements in section 110(a)(1) and (2) of the Act for implementation of the 2006 revisions to the PM 2.5 NAAQS.

Additional information: EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM 2.5 NAAQS for various states across the country. Commenters on EPA's recent proposals for some states raised concerns about EPA statements that it was not addressing certain substantive issues in the context of acting on those infrastructure SIP submissions. 4 Those commenters specifically raised concerns involving provisions in existing SIPs and with EPA's statements in other proposals that it would address two issues separately and not as part of actions on the infrastructure SIP submissions: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); and (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”). EPA notes that there are two other substantive issues for which EPA likewise stated in other proposals that it would address the issues separately: (i) Existing provisions for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and (ii) existing provisions for Prevention of Significant Deterioration programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). In light of the comments, EPA believes that its statements in various proposed actions on infrastructure SIPs with respect to these four individual issues should be explained in greater depth. It is important to emphasize that EPA is taking the same position with respect to these four substantive issues in this action on the infrastructure SIP submittals for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS submissions from Oklahoma.

EPA intended the statements in the other proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM 2.5 NAAQS should not be construed as explicit or implicit reapproval of any existing provisions that relate to these four substantive issues. EPA is reiterating that position in this action on these infrastructure SIP submittals for Oklahoma.

Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issues in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those other proposals, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately from actions on infrastructure SIP submissions.

The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPS are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions. 5 Some of the elements of section 110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS. 6

Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1). 7 This illustrates that EPA must determine which provisions of section 110(a)(2) may be applicable for a given infrastructure SIP submission. Similarly, EPA has previously decided that it could take action on different parts of the larger, general “infrastructure SIP” for a given NAAQS without concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency bifurcated the action on these latter “interstate transport” provisions within section 110(a)(2) and worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on different tracks with different schedules. 8 This illustrates that EPA may conclude that subdividing the applicable requirements of section 110(a)(2) into separate SIP actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, beyond a mere submission addressing basic structural aspects of the state's SIP. Finally, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very different than what might be necessary for a different pollutant. Thus, the content of an infrastructure SIP submission to meet this element from a state might be very different for an entirely new NAAQS, versus a minor revision to an existing NAAQS. 9

Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C, i.e., the PSD requirements applicable in attainment areas. Nonattainment SIPs required by part D also would not need to address the requirements of section 110(a)(2)(G) with respect to emergency episodes, as such requirements would not be limited to nonattainment areas. As this example illustrates, each type of SIP submission may implicate some subsections of section 110(a)(2) and not others.

Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these ozone and PM 2.5 NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS. 10 Within this guidance document, EPA described the duty of states to make these submissions to meet what the Agency characterized as the “infrastructure” elements for SIPs, which it further described as the “basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards.”  11 As further identification of these basic structural SIP requirements, “attachment A” to the guidance document included a short description of the various elements of section 110(a)(2) and additional information about the types of issues that EPA considered germane in the context of such infrastructure SIPs. EPA emphasized that the description of the basic requirements listed on attachment A was not intended “to constitute an interpretation of” the requirements, and was merely a “brief description of the required elements.”  12 EPA also stated its belief that with one exception, these requirements were “relatively self explanatory, and past experience with SIPs for other NAAQS should enable States to meet these requirements with assistance from EPA Regions.”  13 For the one exception to that general assumption, however, i.e., how states should proceed with respect to the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS, EPA gave much more specific recommendations. But for other infrastructure SIP submittals, and for certain elements of the submittals for the 1997 PM 2.5 NAAQS, EPA assumed that each State would work with its corresponding EPA regional office to refine the scope of a State's submittal based on an assessment of how the requirements of section 110(a)(2) should reasonably apply to the basic structure of the State's SIP for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM 2.5 NAAQS. 14 In the 2009 Guidance, EPA addressed a number of additional issues that were not germane to the infrastructure SIPs for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS, but were germane to these SIP submissions for the 2006 PM 2.5 NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had bifurcated from the other infrastructure elements for those specific 1997 ozone and PM 2.5 NAAQS.

Significantly, neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in existing SIP provisions in the context of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA's proposals for other states mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions. The same holds true for this action on the infrastructure SIP submittals for Oklahoma.

EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA. 15 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 16 Significantly, EPA's determination that an action on the infrastructure SIP submittal is not the appropriate time and place to address all potential existing SIP problems does not preclude the Agency's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among the statutory bases that the Agency cites in the course of addressing the issue in a subsequent action. 17

Pursuant to the October 2, 2007, EPA guidance for addressing the SIP infrastructure elements required under sections 110(a)(1) and (2) for the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS, there are 14 essential components that must be included in the SIP. These are listed in Table 1 below.

EPA is proposing to approve the Oklahoma SIP submittals of December 5, 2007, June 24, 2010, and April 5, 2011, that identify where and how the 14 basic infrastructure elements are in the EPA-approved SIP as specified in section 110(a)(2) of the Act. The Oklahoma submittals do not include revisions to the SIP, but document how the current Oklahoma SIP already includes the required infrastructure elements. In today's action, we are proposing to find that the following section 110(a)(2) elements are contained in the current Oklahoma SIP and provide the infrastructure for implementing the 1997 ozone and the 1997 and 2006 PM 2.5 standards: emission limits and other control measures (section 110(a)(2)(A)); ambient air quality monitoring/data system (section 110(a)(2)(B)); the program for enforcement of control measures (section 110(a)(2)(C)); international and interstate pollution abatement (section 110(a)(2)(D)(ii)); adequate resources (section 110(a)(2)(E)); stationary source monitoring system (section 110(a)(2)(F)); emergency power (section 110(a)(2)(G)); future SIP revisions (section 110(a)(2)(H)); consultation with government officials (section 110(a)(2)(J)); public notification (section 110(a)(2)(J)); PSD and visibility protection (section 110(a)(2)(J)); air quality modeling/data (section 110(a)(2)(K)); permitting fees (section 110(a)(2)(L)); and consultation/participation by affected local entities (section 110(a)(2)(M)).

We are also proposing to approve the Oklahoma SIP provisions that address the requirement of section (110)(a)(2)(D)(i)(II) of the Act that emissions from sources in Oklahoma do not interfere with measures required in the SIP of any other state under part C of the Act to prevent significant deterioration of air quality for the 2006 PM 2.5 NAAQS.

The Oklahoma submittal addresses the elements of Section 110(a)(2) as described below. We provide a more detailed review and analysis of the Oklahoma infrastructure SIP elements in the Technical Support Document (TSD), located in the docket for this rulemaking.

Enforceable emission limits and other control measures, section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures and other elements in the SIP be enforceable. This provision does not require the submittal of regulations or emission limits developed specifically for attaining the 1997 8-hour ozone and 1997 and 2006 PM 2.5 standards. Those regulations are due later as part of attainment demonstrations. Additionally, as explained earlier (see footnote 1), EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1). Nevertheless, Oklahoma has included some SIP provisions originally submitted in response to part D in its submission documenting its compliance with the infrastructure requirements of section 110(a)(1) and (2). Oklahoma has continually updated the elements of its SIP revisions submitted in response to the infrastructure requirements of section 110(a)(2) and the nonattainment requirements of part D. For the purposes of this action, EPA is reviewing any rules originally submitted in response to part D solely for the purposes of determining whether they support a finding that the state has met the basic infrastructure requirements under section 110(a)(2).

The Oklahoma Environmental Quality Act and the Oklahoma Environmental Quality Code designate the Oklahoma Department of Environmental Quality (ODEQ) as the state air pollution control agency having jurisdiction for air quality matters. 19 The Oklahoma Environmental Quality Code establishes that ODEQ establish an air quality program for air quality. Further, the Oklahoma Clean Air Act designates ODEQ to establish and implement air quality programs and provides enforcement authority for regulations promulgated under the Act. 20

The ODEQ has promulgated rules to limit and control emissions of, among other things, PM, sulfur compounds (including sulfur dioxide or SO 2 ), nitrogen compounds (including NO X ), and VOCs. 21 These rules include emission limits, control measures, permits, fees, and compliance schedules and are found within Title 252, Chapter 100 of the Oklahoma Administrative Code (denoted 252:100 OAC).

In this action, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. EPA believes that a number of states may have SSM SIP provisions which are contrary to the Act and inconsistent with existing EPA guidance, 22 and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible. Similarly, in this proposed action EPA does not include a review of, and also does not propose to take any action to approve or disapprove, any existing SIP rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions that are contrary to the Act and not consistent with existing EPA guidance (52 FR 45044, November 24, 1987)  23 and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision in its SIP that is contrary to the Act and inconsistent with EPA guidance to take steps to correct the deficiency as soon as possible.

A detailed list of the applicable rules at 252:100 OAC, listed above, is provided in the TSD. The Oklahoma SIP contains enforceable emission limits and other control measures, which are in the federally enforceable SIP. EPA is proposing to determine that the Oklahoma SIP meets the requirements of section 110(a)(2)(A) of the Act with respect to the 1997 8-hour ozone and 1997 and 2006 PM 2.5 NAAQS.

Ambient air quality monitoring/data system, section 110(a)(2)(B): Section 110(a)(2)(B) requires SIPs to include provisions for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. The ODEQ operates and maintains a state-wide network of air quality monitors; data are collected, results are quality assured and the data are submitted to EPA's Air Quality System  24 on a regular basis. The Oklahoma Statewide Air Quality Surveillance Network was approved by EPA at 37 FR 10842, 10887 and revised on March 28, 1979 (44 FR 18490) and January 12, 1981 (46 FR 2655). Oklahoma's monitoring network includes the State and Local Air Monitoring Stations (SLAMS), which measure ambient concentrations of those pollutants for which standards have been established in 40 CFR part 50 (46 FR 2655). Oklahoma's air quality surveillance network consists of stations that measure ambient concentrations of the criteria pollutants, including ozone  25 and PM 2.5 . The ODEQ Web site provides the ozone and PM 2.5 monitor locations and current and historical data, including ozone design values for current  26 and past trienniums. On June 30, 2010, ODEQ submitted its 2010 Annual Air Monitoring Network Plan (AAMNP) that addresses each of the criteria pollutants, including 8-hour ozone and PM 2.5 and thus allows the state to measure its air quality for compliance with the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS. EPA approved the 2010 AAMNP on January 12, 2011. 27

In summary, Oklahoma meets the requirements to establish, operate, and maintain an ambient air monitoring network, collect and analyze the monitoring data, and make the data available to EPA upon request. The EPA is proposing to find that the current Oklahoma SIP meets the requirements of section 110(a)(2)(B) of the Act for the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS.

Program for enforcement of control measures and regulation of the modification and construction of stationary sources, including a permit program, pursuant to section 110(a)(2)(C): In its submittal for the 1997 8-hour ozone NAAQS, the ODEQ did not specifically address this element of section 110(a)(2)(C). The ODEQ did, however, include a review of enforcement of control measures, including review of proposed new sources, contained in its SIP in its June 24, 2010 and April 5, 2011 certifications regarding the 1997 and 2006 PM 2.5 NAAQS, respectively.

The ODEQ has requisite enforcement authority as provided under the Oklahoma Environmental Quality Act, Oklahoma Environmental Quality Code and the Oklahoma Clean Air Act. 28 The administrative proceedings for enforcement actions, including administrative compliance orders and determination of penalty, are provided under 252 OAC chapter 4, subchapter 9. Among the issues addressed in 252 OAC chapter 100, subchapters 3, 5, 8, 9, 13, 17, 19, 23, 24, 25, 31, 33, 37, 39, 43, and Appendices A, C-G and L, are allowable emission rates, compliance, control plan requirements, control schedules, monitoring and testing requirements, and reporting and recordkeeping requirements. These clarify the boundaries beyond which regulated entities in Oklahoma can expect enforcement action.

To meet the requirement for having a program for the regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that NAAQS are achieved, including a permit program as required by Parts C and D, generally, the State is required to have SIP-approved PSD, Nonattainment, and Minor NSR permitting programs adequate to implement the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS. As discussed previously, we are not evaluating nonattainment-related provisions, such as the nonattainment NSR program required by part D in 110(a)(2)(C) and measures for attainment required by section 110(a)(2)(I), as part of the infrastructure SIPs for these three NAAQS because these submittals are required beyond the date (3 years from NAAQS promulgation) that section 110 infrastructure submittals are required.

PSD programs apply in areas that are meeting the NAAQS or are unclassifiable, referred to as areas in attainment. PSD applies to new major sources and major modifications at existing sources. Oklahoma's PSD program was initially approved into the SIP on August 25, 1983 (see 48 FR 38635), giving the State authority to issue PSD permits and enforce them under its approved PSD SIP. Subsequent revisions to Oklahoma's PSD program were found to be consistent with Federal regulations, and as such, were approved by EPA into the SIP on February 12, 1991 (see 56 FR 05653) and July 23, 1991 (see 56 FR 33715).

To implement section 110(a)(2)(C) for the 1997 ozone NAAQS, a state must have updated its PSD rules to address NO X as an ozone precursor (70 FR 71612). To meet this requirement Oklahoma submitted updated PSD rules for ozone on June 24, 2010, and EPA approved them on November 26, 2010 (75 FR 72695).

To implement section 110(a)(2)(C) for the PM 2.5 NAAQS, a state must provide revisions to implement the NAAQS, due May 16, 2011 (73 FR 28321 May 16, 2008). On July 16, 2010, ODEQ submitted revisions to the Oklahoma SIP that amended their PSD program to meet these PM 2.5 NAAQS implementation requirements. We will act on this submission in a separate rulemaking. Previously, on December 29, 2008, EPA approved revisions to the values for PM significant deterioration increments in accordance with 40 CFR 51.166. 29 We determined these revisions to the PM PSD increments complied with EPA's PSD regulations.

In this action, EPA is not proposing to approve or disapprove any state rules with regard to the NSR Reform requirements. EPA will act on SIP submittals that were made for purposes of adopting NSR Reform through a separate rulemaking process.

Oklahoma has the authority to issue permits under the SIP-approved PSD program to sources of GHG emissions (75 FR 82536, December 30, 2010; 75 FR 77698, December 13, 2010). 30 The Tailoring Rule established thresholds that phase in the applicability of PSD requirements to GHG sources, starting with the largest GHG emitters, and were designed to relieve the overwhelming administrative burdens and costs associated with the dramatic increase in permitting burden that would have resulted from applying PSD requirements to GHG emission increases at or above only the mass-based statutory thresholds of 100/250 tons per year generally applicable to all PSD-regulated pollutants starting on January 2, 2011. However, EPA recognized that even after it finalized the Tailoring Rule, many SIPs with approved PSD programs would, until they were revised, continue to apply PSD at the statutory thresholds, even though the States would not have sufficient resources to implement the PSD program at those levels. EPA consequently implemented its “PSD SIP Narrowing Rule” and narrowed its approval of those provisions of previously approved SIPs that apply PSD to GHG emissions increases from sources emitting GHGs below the Tailoring Rule thresholds (75 FR 82536, December 30, 2010). Through the PSD SIP Narrowing Rule, EPA withdrew its previous approvals of those programs to the extent the SIPs apply PSD to increases in GHG emissions from GHG-emitting sources below the Tailoring Rule thresholds. The portions of the PSD programs regulating GHGs from GHG-emitting sources with emission increases at or above the Tailoring Rule thresholds remained approved. The effect of EPA narrowing its approval in this manner is that the provisions of previously approved SIPs that apply PSD to GHG emissions increases from sources emitting GHGs below the Tailoring Rule thresholds have the status of having been submitted by the State but not yet acted upon by EPA (75 FR 82536, December 30, 2010).

Oklahoma submitted to EPA a supplemental certification, dated October 24, 2011, certifying that the portion of the GHG PSD program in the State's submittal under infrastructure SIP review is only the portion that remained approved after EPA's promulgation of the PSD SIP Narrowing Rule, which is the portion that regulates GHG-emitting sources with GHG emissions at or above the Tailoring Rule thresholds. Therefore, we are proposing to find that the current Oklahoma PSD SIP meets section 110(a)(2)(C) with respect to the 1997 8-hour ozone and PM 2.5 NAAQS.

EPA has determined that Oklahoma's minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions of ozone and PM 2.5 and their precursors. EPA has also been made aware of concerns that certain provisions of some states' minor NSR programs adopted pursuant to section 110(a)(2)(C) of the Act may not meet all the requirements found in EPA's regulations implementing that provision. See 40 CFR 51.160-51.164. EPA has approved Oklahoma's minor NSR program into the SIP and various revisions pertaining to the minor program. 31 Oklahoma and EPA have relied upon Oklahoma's existing minor NSR program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. In this action, EPA is proposing to approve Oklahoma's infrastructure SIP for the 1997 ozone and 1997 and 2006 PM 2.5 standards with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. EPA is not proposing to approve or disapprove Oklahoma's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program. EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and EPA believes it may be time to revisit the regulatory requirements for this program in order to give the states an appropriate level of flexibility to design programs that meet their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

Interstate transport, section 110(a)(2)(D): Section 110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, interfering with maintenance of the NAAQS in another state, or from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state. Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

On April 25, 2005 (70 FR 21147), EPA published a finding that all States had failed to submit new SIPs addressing interstate transport for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS, as required by section 110(a)(2)(D)(i) of the CAA. Section 110(a)(2)(D)(i) pertains to interstate transport of certain emissions. On August 15, 2006, EPA issued its “Guidance for State Implementation Plan (SIP) Submission to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2006 Guidance). EPA developed the 2006 Guidance to make recommendations to states for making submissions to meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the 1997 PM 2.5 standards. As identified in the 2006 Guidance, the “good neighbor” provisions in section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; and (4) interfere with efforts to protect visibility in other states.

On November 26, 2010, we found for the 1997 ozone and PM 2.5 standards, that emissions from sources in Oklahoma do not interfere with measures required in the SIP of any other state under part C of the CAA to prevent significant deterioration of air quality (75 FR 72695). On October 17, 2011, we proposed that Oklahoma has sufficient measures to prevent significant contribution to nonattainment or significant interference with maintenance for the 1997 and 2006 PM 2.5 standards (76 FR 64065). In the same action, we proposed that emissions from Oklahoma do not contribute to nonattainment of the 1997 ozone standard. We also proposed that emissions from Oklahoma do, or in the alternative, do not interfere with maintenance of the 1997 ozone standard and also took comment on whether emissions from Oklahoma do not interfere with maintenance. 32 In this rulemaking, we are addressing only the requirement that pertains to preventing sources in Oklahoma from emitting pollutants that will interfere with measures required to prevent significant deterioration of air quality in other states for the 2006 PM 2.5 standard. In its April 5, 2011, submission, Oklahoma indicated that its current NSR SIP is adequate to prevent such interference.

The 2006 Guidance states that the PSD permitting program is the primary measure that each state must include to prevent interference with other State's programs to prevent significant deterioration of air quality in accordance with section 110(a)(2)(D)(i)(II). EPA believes that Oklahoma's April 5, 2011, submission is consistent with the 2006 Guidance, when considered in conjunction with the State's PSD program. As discussed previously in this rulemaking with regards to section 110(a)(2)(C) and in the TSD, the State's PSD program is in the SIP and meets the basic requirements for implementing the PM 2.5 NAAQS . Therefore, EPA is proposing that Oklahoma has sufficient measures in place to prevent interference with other State's programs to prevent significant deterioration of the 2006 PM 2.5 standard.

Section 110(a)(2)(D)(ii) of the Act requires compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Section 115(a) addresses endangerment of public health or welfare in foreign countries from pollution emitted in the United States. Pursuant to section 115, the Administrator has neither received nor issued a formal notification that emissions from Oklahoma are endangering public health or welfare in a foreign country. Section 126(a) of the Act requires new or modified sources to notify neighboring states of potential impacts from such sources. Oklahoma PSD permitting regulations at 252 OAC chapter 100 require that affected states be notified of permitting actions and be provided with a copy of the draft permit no later than the commencement of the public comment period. 33 (75 FR 72695). The state also has no pending obligations under section 126 of the Act.

EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(D)(ii) of the Act for the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS.

Adequate resources, section 110(a)(2)(E): Chapter 9, titled “Resources,” of the Oklahoma SIP was originally approved on May 31, 1972, and provides assurances that the State has the adequate resources, i.e., personnel and funding, to carry out their SIP. 34 The Oklahoma Environmental Quality Act, the Oklahoma Environmental Code and the Oklahoma Clean Air Act are codified at Title 27A of the Oklahoma Statutes, titled Environment and Natural Resources. 35 Together, these laws name the ODEQ as the state air control agency, with principal authority in the state on matters relating to the quality of air resources, and charge the ODEQ with preparing and implementing the SIP. The Oklahoma Clean Air Act also authorizes the ODEQ to establish fees to review and act on permit applications; amend and review permits; conduct inspections of facilities; and enforce the rules and orders of permits.

Additionally, there are Federal sources of funding for the implementation of the 1997 8-hour ozone and 1997 and 2006 PM 2.5 NAAQS through, for example, the CAA sections 103 and 105 grant funds. The ODEQ receives Federal funds on an annual basis, under section 105 of the Act, to support its air quality programs. Fees collected for the Title V and non-Title V permit programs also provide necessary funds to help implement the State's air programs. EPA fully approved Oklahoma's Title V program at 66 FR 63170 (12/05/01). EPA approved Oklahoma's Title 1 program at 48 FR 38635 and 64 FR 59629. More specific information on permitting fees is provided in the discussion for 110(a)(2)(L) below and in the TSD.

Section 110(a)(2)(E)(ii) requires that the state comply with section 128. Section 128 requires: (1) That the majority of members of the state body which approves permits or enforcement orders do not derive any significant portion of their income from entities subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such body be adequately disclosed. In 1982, the EPA approved into the SIP the Oklahoma Code of Ethics for State Officials and Employees (47 FR 20771), and in 1994 EPA incorporated by reference the Oklahoma Clean Air Act of 1992 and Oklahoma Environmental Quality Act that contain, among other things, financial disclosures, conflicts of interest and ethical conduct for the Executive Director of the ODEQ and classified employees of the agency (See 59 FR 32365 for reference to the Acts).

EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(E) of the Act for the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS.

Stationary source monitoring system, section 110(a)(2)(F): The Oklahoma rules at 252 OAC chapter 100, subchapters 5, 8, 9, 17, 23, 24, 25, and 43 require that stationary sources monitor for compliance, provide recordkeeping and reporting, and provide for enforcement of ozone, PM 2.5 , and precursors to these pollutants (SO 2 , ammonia, volatile organic compounds and NO X ). The ODEQ uses this data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with Oklahoma and EPA requirements. These rules have been approved by EPA for incorporation into the SIP.

Under the Oklahoma Clean Air Act at Section 27A-2-5-105, the ODEQ is required to analyze the emissions data from point, area, mobile, and biogenic (natural) sources. The ODEQ uses this data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with Oklahoma and EPA requirements. Emissions data are available electronically: http://www.epa.gov/ttn/chief/eiinformation.html . Oklahoma's point source emission inventory (EI) is available at http://www.deq.state.ok.us/AQDnew/Emissions/Data.htm .

EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(F) for the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS.

Emergency power, section 110(a)(2)(G): Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs. The Executive Director of the ODEQ is empowered by the Oklahoma Environmental Quality Code to respond to air pollution episodes and other air quality emergencies, 36 and the ODEQ has contingency plans to implement emergency episode provisions in the SIP. Oklahoma's Emergency Episode Plan was approved into the SIP by EPA on February 12, 1991 (56 FR 05653). Oklahoma's Emergency Episode Plan includes alert, warning, and emergency levels for emergency episodes involving PM 10 and ozone concentrations. The episode criteria and contingency measures are found in the Emergency Episode Plan. The criteria for ozone are based on a 1-hour average ozone level. These episode criteria and contingency measures are adequate to address ozone emergency episodes and are in the federally approved SIP. We propose that the Oklahoma Emergency Episode Plan provides for the pollutants specified under 40 CFR 51.150 and is consistent with the provisions of 40 CFR 51.151 and 152, and Appendix L to Part 51.

The 2009 Infrastructure SIP Guidance for PM 2.5 recommends that a state with at least one monitored 24-hour PM 2.5 value exceeding 140.4 µg/m 3 since 2006 establish an emergency episode plan and contingency measures to be implemented should such level be exceeded again. The 2006-2010 ambient air quality monitoring data  37 for Oklahoma do not exceed 140.4 µg/m 3 . The PM 2.5 levels have consistently remained below this level (140.4 µg/m 3 ), and furthermore, the state has appropriate general emergency powers to address PM 2.5 related episodes to protect the environment and public health. Given the state's monitored PM 2.5 levels, EPA is proposing that Oklahoma is not required to submit an emergency episode plan and contingency measures at this time, for the 1997 and 2006 PM 2.5 standards. Additional detail is provided in the TSD.

EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(G) for the 1997 8-hour ozone and 1997 and 2006 PM 2.5 NAAQS.

Future SIP revisions, section 110(a)(2)(H): The Oklahoma Environmental Quality Code and the Oklahoma Clean Air Act direct the ODEQ to prepare and develop the SIP and provide ODEQ with the necessary authority to carry out other duties, requirements and responsibilities necessary for the implementation of the Oklahoma Clean Air Act and fulfilling the requirements of the Federal Clean Air Act (OS 27A 2-5-105). Thus, Oklahoma has the authority to revise its SIP from time to time as may be necessary to take into account revisions of primary or secondary NAAQS, or the availability of improved or more expeditious methods of attaining such standards. Furthermore, Oklahoma also has the authority under these Oklahoma Clean Air Act provisions to revise its SIP in the event the EPA, pursuant to the Federal Clean Air Act, finds the SIP to be substantially inadequate to attain the NAAQS.

EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(H) for the 1997 8-hour ozone and 1997 and 2006 PM 2.5 NAAQS.

Consultation with government officials, section 110(a)(2)(J): Section 2-5-105 of the 1992 Oklahoma Clean Air Act gives the ODEQ the authority to advise, consult, and cooperate with other agencies of the State, towns, cities and counties, industries, other states and the Federal government, and with affected groups in the prevention and control of new and existing air contamination sources within the State. Chapter 10 of the original Oklahoma SIP approved on May 31, 1972 (37 FR 10887), provides for intergovernmental cooperation. Oklahoma's Intergovernmental Consultation Plan was revised and approved by EPA on May 14, 1982 (47 FR 20771). The 1990 Oklahoma Visibility Plan was approved by EPA into the SIP on November 8, 1999 (64 FR 60683), and requires the ODEQ to notify the FLM of the receipt of any analysis of the anticipated impacts on visibility in any Federal Class I area, and requires the ODEQ to consider any timely analysis performed by the FLM and to coordinate with the FLM in conducting any monitoring of visibility in the mandatory Federal Class I area. The Attainment Demonstration for the Central Oklahoma Early Action Compact (EAC) Area  38 incorporated a Memorandum of Agreement (MOA) between the ODEQ and the Association of Central Oklahoma Governments (ACOG) into the Oklahoma SIP, outlining the duties and responsibilities of each party for implementation of pollution control measures for the Central Oklahoma EAC area. The Attainment Demonstration for the Tulsa EAC Area  39 incorporated a MOA between the ODEQ and the Indian Nation Council of Governments (INCOG) into the Oklahoma SIP, outlining the duties and responsibilities of each party for implementation of pollution control measures for the Tulsa Metropolitan Area EAC area.

EPA is proposing to find that the Oklahoma SIP meets this portion of the section 110(a)(2)(J) requirements for the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS. 40

Public notification if NAAQS are exceeded, pursuant to section 110(a)(2)(J): Public notification begins with the air quality forecasts, which advise the public of conditions capable of exceeding the 8-hour ozone and PM 2.5 NAAQS. The air quality forecasts can be found on the ODEQ Web site and consist of an Air Quality Index (AQI) forecast with specific information on individual pollutants of concern, such as ozone and fine particulate matter. The AQI forecast includes three areas in the State. 41 AQI forecasts are made daily throughout the year, and ozone-specific forecasts are made daily during the ozone season for each of the three forecast areas. The ozone forecasts are made, in most cases, a day in advance by 2 p.m. local time and are valid for the next day. When the forecast indicates that ozone or fine particulate levels will be above their respective standards, the State notifies the National Weather Service, who then broadcasts the information across its weather wire. The AQI forecasts and pollutant-specific advisories are available through email and pager notification. Furthermore, the ODEQ publishes an annual Air Data Report, which summarizes observations made by the State's ambient monitoring network. 42 EPA is proposing to find that the Oklahoma SIP meets this portion of the section 110(a)(2)(J) requirements for the 1997 8-hour ozone and 1997 and 2006 PM 2.5 NAAQS.

PSD and visibility protection, section 110(a)(2)(J): This portion of section 110(a)(2)(J) in part requires that a state's SIP meet the applicable requirements of section 110(a)(2)(C) as relating to PSD programs. As discussed previously in this rulemaking with regards to section 110(a)(2)(C) and in the TSD, Oklahoma operates its EPA-approved PSD program under Regulation 1.4.4 “Major Sources—Prevention of Significant Deterioration (PSD) Requirements for Attainment Areas” (now OAC 252:100-8, Part 7 and elsewhere in OAC 252:100).

On November 8, 1999 (64 FR 60683), EPA approved Oklahoma's Visibility Protection Plan for the Federal Class I area. 43 In that rulemaking, EPA determined that Oklahoma's Visibility Protection Plan meets the visibility monitoring and NSR provisions under 40 CFR 51.305 and 51.307, as well as the visibility implementation control strategy and long-term strategy requirements under 40 CFR 51.302 and 51.306. The State's most recent SIP revision of its Regional Haze program was submitted to EPA on February 19, 2010, and we proposed action on it on March 22, 2011 (76 FR 16168). We expect to take final action on the Regional Haze submittal by December 16, 2011. With regard to the applicable requirements for visibility protection, EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. This would be the case even in the event a secondary PM 2.5 NAAQS for visibility is established, because this NAAQS would not affect visibility requirements under part C. EPA is therefore proposing to find that the Oklahoma SIP meets the visibility protection requirements of section 110(a)(2)(J) for the 1997 8-hour ozone and 1997 and 2006 PM 2.5 NAAQS.

Air quality and modeling/data, section 110(a)(2)(K): The Oklahoma Environmental Quality Act, Oklahoma Environmental Quality Code and the Oklahoma Clean Air Act provide ODEQ with principal authority in the state on matters relating to the quality of air resources, and charges the ODEQ with preparing and implementing the SIP, which includes modeling to inform decisions on nonattainment area boundaries and demonstrate effectiveness of SIP control strategies. 44

The ODEQ has demonstrated its capacity to perform modeling in past submitted SIP revisions. For example, Oklahoma submitted modeling in SIP revisions for the Oklahoma City and Tulsa Early Action Compact (EAC) Areas to demonstrate attainment of the 1997 ozone standard. The modeling in these SIPs was approved by EPA and adopted into the SIP. 45

EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(K) for the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS.

Permitting fees, section 110(a)(2)(L): The Oklahoma Environmental Quality Code authorizes the ODEQ, through the Board of Environmental Quality, to promulgate rules regarding permit fees. See 2-2-101. Whereas 2-5-113 of the Oklahoma Clean Air Act establishes that the owner or operator of any source required to have a permit must pay a permit fee to cover the cost of implementing and enforcing Oklahoma's permit program. EPA originally approved Regulation 1.4.1(d) of the Oklahoma Air Pollution Control Regulations that provides for permit fees into the Oklahoma SIP on August 25, 1983 (48 FR 38635). The Oklahoma regulations have since been reorganized, and the current fee provisions for annual operating fees for area and non-area sources are found at OAC 252:100-5-2; fee provisions for PSD applications are found at OAC 252:100-7-3, and fee provisions for Part 70 sources are found at OAC 252:100-8-1. EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(L) for the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS.

Consultation/participation by affected local entities, section 110(a)(2)(M): Section 2-5-105 of the Oklahoma Clean Air Act authorizes the ODEQ to advise, consult and cooperate with other agencies of the State, towns, cities and counties, industries, other states and the Federal government, and with affected groups in the prevention and control of new and existing air contamination sources within the State. Oklahoma's Intergovernmental Consultation plan was approved by EPA on May 14, 1982 (47 FR 20771), and consisted of a process for consultation and planning with relevant local governmental organizations having responsibility for any SIP revision process. As part of the plan, the State entered into formal agreements with designated metropolitan planning organizations for air quality planning in their respective areas of the State. EPA is proposing to find that the Oklahoma SIP meets the requirements of section 110(a)(2)(M) for the 1997 8-hour ozone and the 1997 and 2006 PM 2.5 NAAQS.

We are proposing to approve the SIP submittals provided by the State of Oklahoma to demonstrate that the Oklahoma SIP meets the requirements of section 110(a)(1) and (2) of the Act for the 1997 ozone and the 1997 and 2006 PM 2.5 NAAQS.

We are proposing to find that the current Oklahoma SIP meets the infrastructure elements for the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS:

Emission limits and other control measures (110(a)(2)(A) of the Act);

Ambient air quality monitoring/data system (110(a)(2)(B) of the Act);

Program for enforcement of control measures (110(a)(2)(C) of the Act);

Interstate transport, pursuant to section 110(a)(2)(D)(ii) of the Act;

Adequate resources (110(a)(2)(E) of the Act);

Stationary source monitoring system (110(a)(2)(F) of the Act);

Emergency power (110(a)(2)(G) of the Act);

Future SIP revisions (110(a)(2)(H) of the Act);

Consultation with government officials (110(a)(2)(J) of the Act);

Public notification (110(a)(2)(J) of the Act);

Prevention of significant deterioration and visibility protection (110(a)(2)(J) of the Act);

Air quality modeling data (110(a)(2)(K) of the Act);

Permitting fees (110(a)(2)(L) of the Act); and

Consultation/participation by affected local entities (110(a)(2)(M) of the Act).

We are also proposing to approve the Oklahoma SIP provisions that address the requirement of section (110)(a)(2)(D)(i)(II) of the Act that emissions from sources in Oklahoma do not interfere with measures required in the SIP of any other state under part C of the Act to prevent significant deterioration of air quality for the 2006 PM 2.5 NAAQS.

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

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

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

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

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

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

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

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

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

• Does not provide 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).

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA. On October 17, 2011, we published in the Federal Register a proposed rule proposing to partially approve and partially disapprove the Arkansas RH SIP and to partially approve and partially disapprove Arkansas' Interstate Transport SIP to address pollution affecting visibility (76 FR 64186). In the proposal we requested comment by November 16, 2011. The proposal and supporting documentation for our proposal can be accessed at http://www.regulations.gov (Docket No. EPA-R06-OAR-2008-0727).

The EPA is extending the comment period due to public requests that have been made stating that additional time is needed in order to fully evaluate our proposed rule and provide substantive comment. We are extending the comment period for our proposed rule until December 22, 2011.

On August 25, 2011, (76 FR 53086), PHMSA published an ANPRM seeking comments on the need for changes to the regulations covering gas transmission pipelines. Within this ANPRM, PHMSA is seeking public comment on 15 specific topic areas in two broad categories (integrity management (IM) and Non-IM requirements). In particular, PHMSA is interested in knowing whether IM requirements should be changed, more prescriptive language added in some areas, and non-IM requirements strengthened or expanded. Among the specific issues PHMSA is considering concerning IM requirements is whether the definition of a high-consequence area should be revised, and whether additional restrictions should be placed on the use of specific pipeline assessment methods. With respect to non-IM requirements, PHMSA is considering whether revised requirements are needed on new construction or existing pipelines concerning mainline valves, whether requirements for corrosion control of steel pipelines should be strengthened, and whether new regulations are needed to govern the safety of gathering lines and underground gas storage facilities.

On September 9, 2011, the Interstate Natural Gas Association of America (INGAA) and the American Gas Association (AGA) requested that PHMSA extend the comment period of the ANPRM by 90 days. INGAA and AGA supported their request stating that the ANPRM poses a large number of multi-part questions that cover 15 separate topic areas. They stated that to thoughtfully and thoroughly address the issues, significant effort on the part of all stakeholders is required, and may include industry-wide surveys. They stated that questions regarding cost implications and various other impacts will entail an integrated effort within the industry to provide a quality, validated, and vetted answer. Also, they stated that timing supports their request because they are currently in the initial phases of implementing the Control Room Management regulations, and completing and verifying their 2011 projects and conducting maintenance, budget and planning activities that will directly impact their pipeline safety compliance efforts this year and next. In addition, they stated that PHMSA granted an extension of time allowing parties four months to comment on the hazardous liquid ANPRM and, therefore, a 90-day extension of the comment period is further justified by the depth and scope of the issues addressed in the natural gas ANPRM.

Through this ANPRM, PHMSA has raised several important and complex public safety issues, many of which, if implemented, could impose significant cost on the pipeline industry. PHMSA needs very thorough responses to the questions we have posed in the ANPRM in order to facilitate PHMSA's decision making on these very important and complex issues. Based on the reasons given by INGAA and AGA in their request to extend the comment period, and PHMSA's need to have the best data possible to facilitate its decisions relative to these issues, PHMSA believes that extension of the comment period is warranted. Therefore, PHMSA has extended the comment period from December 2, 2011, to January 20, 2012.