This document and additional information concerning OFAC are available on OFAC's website: www.treasury.gov/ofac.

On February 23, 1999, OFAC issued the Weapons of Mass Destruction Trade Control Regulations, 31 CFR part 539 (64 FR 8715, February 23, 1999) (the “Regulations”), to implement Executive Order (E.O.) 12938 of November 14, 1994, “Proliferation of Weapons of Mass Destruction” (59 FR 59099, November 16, 1994), as amended by E.O. 13094 of July 28, 1998, “Proliferation of Weapons of Mass Destruction” (63 FR 40803, July 30, 1998). Since that time, OFAC has amended the Regulations to remove two names from appendix I to the Regulations (66 FR 57371, November 15, 2001).

Appendix I to the Regulations lists the names of foreign persons who are determined by the Secretary of State pursuant to section 4(a) of E.O. 12938, as amended by E.O. 13094, to have materially contributed or attempted to contribute materially to the efforts of a foreign country, project, or entity of proliferation concern to use, acquire, design, develop, produce, or stockpile weapons of mass destruction or missiles capable of delivering such weapons, and who are subject to import measures authorized in E.O. 12938, as amended. Although appendix I to the Regulations has not been updated since November 15, 2001, the names of persons subject to the import measures authorized in E.O. 12938, as amended, are published in the Federal Register and maintained on the Department of State's website. All persons currently listed in appendix I to the Regulations have been determined by the Department of State to no longer be subject to the import measures authorized in E.O. 12938, as amended, and the Department of State has published these determinations in the Federal Register . 1 The list maintained on the Department of State's website has been updated to reflect that these persons are no longer subject to sanctions under E.O. 12938, as amended.

In addition, since November 15, 2001, E.O. 12938, as amended, has been further amended. On June 28, 2005, the President, invoking the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706), issued E.O. 13382, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters” (70 FR 38567, July 1, 2005), effective at 12:01 a.m. eastern daylight time on June 29, 2005. E.O. 13382 blocks the property and interests in property of certain persons and is implemented in the Weapons of Mass Destruction Proliferators Sanctions Regulations, 31 CFR part 544. In addition, E.O. 13382 further amended section 4(a) of E.O. 12938 to add the Secretary of the Treasury as a consultative party and expand the foreign persons who could be subject to the import measures of E.O. 12938, as amended, to the following: Foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury, to have engaged, or attempted to engage, in activities or transactions that have materially contributed to, or pose a risk of materially contributing to, the proliferation of weapons of mass destruction or their means of delivery (including missiles capable of delivering such weapons), including any efforts to manufacture, acquire, possess, develop, transport, transfer, or use such items, by any person or foreign country of proliferation concern. Accordingly, OFAC is adding E.O. 13382 as an authority to the Regulations.

In light of the further amendment to section 4(a) of E.O. 12938, the removal of all persons from appendix I, and the Department of State's regular practice of publishing in the Federal Register notices of the determinations of the Secretary of State, in consultation with the Secretary of the Treasury, that a person meets or no longer meets the criteria of section 4(a) of E.O. 12938, as amended, OFAC is also now removing appendix I from the Regulations.

OFAC is also amending the definitions in §§ 539.301, 539.302, and 539.304 in the Regulations to reflect the removal of appendix I and making technical edits to the authority citation to conform to Federal Register guidance.

Because the Regulations involve a foreign affairs function, the provisions of E.O. 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, OFAC amends 31 CFR part 539 as follows:

Throughout this document, “we,” “us” and “our” refer to the EPA.

On March 24, 2020 (85 FR 16588), the EPA proposed to approve the following measure, submitted by the California Air Resources Board (CARB), into the California SIP.

We proposed to approve the San Joaquin Valley Agricultural Equipment Incentive Measure, as amended (hereafter “Valley Incentive Measure”), based on a determination that it satisfies the applicable CAA requirements for approval of voluntary measures for SIP emission reduction credit. Our proposal was based on our evaluation of the documents provided in the SIP submission, including the measure itself ( i.e., the State commitments set forth on pages 7-12 of CARB Resolution 19-26, as amended by the “Additional Clarifying Information for the San Joaquin Valley Agricultural Equipment Incentive Measure”) and CARB's analysis of the measure in a document entitled “San Joaquin Valley Agricultural Equipment Incentive Measure—Quantifying the Funded Emission Reductions from Moyer, NRCS, and FARMER Programs to Achieve SIP Credit,” Release Date: November 8, 2019 (hereafter “Demonstration”). Our proposed rule and associated technical support document (TSD)  1 contain more information about the SIP submission and our evaluation thereof.

On March 27, 2020 (85 FR 17382), as part of the EPA's proposal to approve most elements of California's attainment plan for the 2006 PM 2.5 NAAQS in the San Joaquin Valley (“2006 NAAQS Plan”), the EPA proposed to credit the Valley Incentive Measure with specific amounts of NO X and PM 2.5 emission reductions toward the State's aggregate emission reduction commitments for 2024 in this plan. Specifically, the EPA proposed to find that the Valley Incentive Measure would achieve 5.9 tons per day (tpd) of NO X reductions and 0.3 tpd of direct PM 2.5 reductions by 2024, as part of the State's control strategy for attaining the 2006 PM 2.5 NAAQS in the San Joaquin Valley by December 31, 2024. 2 We did not, however, finalize this element of our March 27, 2020 proposal because, as of the date of our final action on the 2006 NAAQS Plan, we had not yet approved the Valley Incentive Measure into the SIP. 3

On November 24, 2020, CARB submitted technical clarifications and corrections to the Valley Incentive Measure that clarify, among other things, CARB's commitment to make certain documents concerning the incentive projects implemented to achieve emission reductions available to the public upon request. CARB adopted these technical clarifications and corrections to the measure by Executive Order S-20-031 (November 23, 2020). 4 These technical clarifications and corrections to the Valley Incentive Measure incorporate all amendments contained in the “Additional Clarifying Information for the San Joaquin Valley Agricultural Equipment Incentive Measure.” We refer to the executive order adopting these technical clarifications and corrections as the “Technical Corrections Document.”

On October 6, 2021, CARB submitted an additional clarification to the Valley Incentive Measure stating that CARB's commitments for “aggregated emissions reductions and pieces of agricultural equipment” in the measure may be achieved through any combination of the referenced incentive programs. CARB adopted this clarification to the measure by Executive Order S-21-018 (October 6, 2021). 5 CARB's submittal letter explains that this clarification to the Valley Incentive Measure makes the commitment “severable” so that the EPA “may address the associated emissions reductions and pieces of agricultural equipment from the incentive programs individually as needed.”  6 We refer to the executive order adopting this clarification as the “2021 Clarification Document.”

The 2006 NAAQS Plan is contained within an integrated PM 2.5 attainment plan submitted by CARB on May 10, 2019, that also contains, inter alia, California's Serious area attainment plan for the 2012 annual PM 2.5 NAAQS in the San Joaquin Valley (the “2012 NAAQS Plan”). 7 For purposes of this action we refer to the 2006 NAAQS Plan and 2012 NAAQS Plan together as the “SJV PM 2.5 Plan,” and to the portion of the SJV PM 2.5 Plan that the SJVUAPCD developed and adopted as the “2018 PM 2.5 Plan.” The SJV PM 2.5 Plan lists the Valley Incentive Measure as one of several defined measures that CARB intended to adopt in order to fulfill, in part, its aggregate tonnage commitments in the SJV PM 2.5 Plan. Specifically, the 2006 NAAQS Plan relies on the 2024 tonnage commitment in the Valley Incentive Measure to achieve a portion of the emission reductions necessary for attainment of the 2006 PM 2.5 NAAQS by the end of 2024, 8 and the 2012 NAAQS Plan relies on the 2025 tonnage commitment in the Valley Incentive Measure to achieve a portion of the emission reductions necessary for attainment of the 2012 PM 2.5 NAAQS by the end of 2025. 9

We are taking final action to approve into the California SIP specific portions of the Valley Incentive Measure, as amended and clarified by the Technical Corrections Document and the 2021 Clarification Document, based on our conclusion that these portions of the measure satisfy CAA requirements for approval. Our March 24, 2020 proposed rule (85 FR 16588), the associated TSD, and our responses to comments in this final rule provide our rationale for finding that these portions of the measure are enforceable and satisfy CAA requirements for SIP approval, as interpreted in the EPA's guidance. Upon our approval of these portions of the Valley Incentive Measure into the SIP, they become enforceable under the CAA and creditable for SIP purposes. Accordingly, we are also taking final action to credit these portions of the Valley Incentive Measure with specific amounts of NO X and direct PM 2.5 emission reductions toward the 2024 aggregate tonnage commitments in the 2006 NAAQS Plan, which we previously approved into the SIP. 10 We are deferring action on the remaining portions of the Valley Incentive Measure.

As noted in section I above, the EPA previously proposed to fully approve the Valley Incentive Measure and to credit the measure with 5.9 tpd of NO X reductions and 0.3 tpd of direct PM 2.5 reductions toward the 2024 aggregate tonnage commitments in the 2006 NAAQS Plan but did not finalize this proposal because, as of the date of our final action on the 2006 NAAQS Plan, we had not yet approved the Valley Incentive Measure into the SIP. 11 In this rule we are finalizing our proposal only with respect to those portions of the Valley Incentive Measure, as amended, that pertain to incentive projects implemented under California's Carl Moyer Memorial Air Quality Standards Attainment Program (Carl Moyer Program) and Funding Agricultural Replacement Measures for Emission Reductions Program (FARMER Program). We are deferring action on those portions of the Valley Incentive Measure that pertain to incentive projects implemented under the United States Department of Agriculture's Natural Resources Conservation Service (NRCS) Environmental Quality Incentives Program (EQIP). The docket for this rulemaking contains a copy of those portions of the Valley Incentive Measure, as amended and clarified by the Technical Corrections Document and the 2021 Clarification Document, that we are approving into the SIP. 12 For convenience, we refer to those portions of the Valley Incentive Measure as the “Amended Valley Incentive Measure.”

As we explained in the TSD supporting our proposed rule, the Carl Moyer projects that CARB may implement to fulfill its commitments in the Valley Incentive Measure are those projects subject to either “The Carl Moyer Program Guidelines, Approved Revisions 2011,” revised December 18, 2015 (the “2011 Carl Moyer Guidelines”), or “The Carl Moyer Program Guidelines, 2017 Revisions,” approved April 27, 2017 (the “2017 Carl Moyer Guidelines”). 13 The FARMER projects that CARB may implement to fulfill its commitments in the Valley Incentive Measure are those projects subject to the “Final: Funding Agricultural Replacement Measures for Emission Reductions (FARMER) Program Guidelines,” release date: February 16, 2018 (“2018 FARMER Guidelines”), which generally must comply with the 2017 Carl Moyer Guidelines. 14

CARB's SIP submission and related support documents indicate that the portions of the Valley Incentive Measure, as amended, that pertain to incentive projects implemented under the Carl Moyer Program and FARMER Program will achieve 4.83 tpd of NO X reductions and 0.24 tpd of PM 2.5 reductions by 2024. 15 We are, therefore, approving CARB's commitments to achieve 4.83 tpd of NO X reductions and 0.24 tpd of PM 2.5 reductions by the beginning of 2024 through implementation of the Amended Valley Incentive Measure, and crediting the measure with these amounts of NO X and PM 2.5 emission reductions toward CARB's aggregate tonnage commitments for 2024 in the 2006 NAAQS Plan. 16 The 2006 NAAQS Plan shows that the San Joaquin Valley needs to achieve an additional 33.9 tpd of NO X reductions and 2.2 tpd of PM 2.5 reductions beyond baseline measures to attain the 2006 PM 2.5 NAAQS by December 31, 2024. 17 Thus, the SIP-creditable emission reductions attributed to the Amended Valley Incentive Measure constitute 14.2 percent of the additional NO X reductions (4.83/33.9 tpd) and 10.9 percent of the additional PM 2.5 reductions (0.24/2.2 tpd) necessary for attainment of the 2006 PM 2.5 NAAQS in the San Joaquin Valley by December 31, 2024. 18

Under longstanding guidance, the EPA has recommended presumptive limits on the amounts of emission reductions from certain voluntary and other nontraditional measures that may be credited in a SIP. Specifically, for voluntary mobile source emission reduction programs, the EPA has identified a presumptive limit of three percent of the total projected future year emission reductions required to attain the appropriate NAAQS, and for any particular SIP submittal to demonstrate attainment or maintenance of the NAAQS or progress toward attainment (RFP), three percent of the specific statutory requirement. 19 The EPA may, however, approve measures for SIP credit in amounts exceeding the presumptive limits under certain circumstances, and where a clear and convincing justification is made by the State as to why a higher limit should apply in its case. 20

The San Joaquin Valley's topography and meteorology present significant challenges for air quality. As stated in the 2018 PM 2.5 Plan, “the surrounding mountains trap pollution and block airflow” and “[t]emperature inversions, while present to some degree throughout the year, can last for days during the winter, holding in nighttime accumulations of pollutants.”  21 In addition, the population of the area continues to grow at a rate higher than the statewide growth rate, leading to increased vehicular traffic along major highways that run through the San Joaquin Valley. 22 Given these unique challenges, both the State and District continue to implement both traditional and non-traditional emission reduction strategies to attain the PM 2.5 standards in the San Joaquin Valley, including regulatory programs, incentive programs, and rigorous outreach and education efforts. 23 Over the past several decades, the State and District have developed and implemented several comprehensive plans to address attainment of the NAAQS for ozone and particulate matter. 24 These attainment plans have resulted in the State's and District's adoption of numerous regulations for stationary, area, and mobile sources, including some of the most stringent control measures in the nation. 25 Given the air quality needs of the area, the numerous control measures that both the State and District have adopted and implemented in the San Joaquin Valley to date, the State's and District's successful implementation of the Carl Moyer program over the last two decades, and our experience to date quantifying emission reductions achieved through this program, 26 we believe it is appropriate to allow the State to rely on the Amended Valley Incentive Measure to achieve 14.2 percent (4.83 tpd) of the additional NO X reductions and 10.9 percent (0.24 tpd) of the additional direct PM 2.5 reductions necessary for the area to attain the 2006 PM 2.5 NAAQS by the end of 2024. Moreover, all Carl Moyer and FARMER projects are subject to detailed contract provisions that CARB may enforce against the grantee at any time during the contract term, a program feature that further supports the State's reliance on the Amended Valley Incentive Measure for emission reductions exceeding the EPA's presumptive limits. 27 See Response 2.

CARB's SIP submission and related support documents also indicate that the Amended Valley Incentive Measure will achieve 4.46 tpd of NO X reductions and 0.26 tpd of PM 2.5 reductions by 2025. 28 We are, therefore, approving CARB's commitments to achieve 4.46 tpd of NO X reductions and 0.26 tpd of PM 2.5 reductions by the beginning of 2025, thereby making these portions of the Amended Valley Incentive Measure enforceable under the CAA and creditable toward the attainment control strategy in the 2012 NAAQS Plan. 29 In a separate rulemaking on the 2012 NAAQS Plan, the EPA will identify the specific amounts of NO X and PM 2.5 emission reductions that may be attributed to the Amended Valley Incentive Measure as part of the State's control strategy for attaining the 2012 PM 2.5 NAAQS. If those amounts of NO X and PM 2.5 emission reductions exceed the EPA's presumptive limits on the use of emission reductions from voluntary measures for SIP purposes, the EPA will, as part of that rulemaking, evaluate the SIP submission for the Amended Valley Incentive Measure to determine whether such use is justified.

The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Earthjustice objecting to our proposal. 30 We also received comments from 27 entities that express only support for our proposal and do not require a response. 31 We summarize and respond to all comments from Earthjustice that pertain to the Amended Valley Incentive Measure— i.e., those portions of the measure, as amended and clarified, that pertain to implementation of Carl Moyer and FARMER projects. 32

Because we are deferring action on those portions of the Valley Incentive Measure that pertain to EQIP projects, we are not responding to comments pertaining to these portions of the measure at this time. We will respond to these comments in a subsequent rulemaking or, if we substantially revise our proposal with respect to the portions of the Valley Incentive Measure that pertain to EQIP projects, we will provide another opportunity for public comment on that revised proposal.

Comment 1: Earthjustice states that CARB and the SJVUAPCD have used promises of voluntary emission reductions supported by incentive funds to cure all number of planning and regulatory failures, and that without a detailed accounting, there is no reasonable basis for concluding that the reductions achieved in this program are surplus to reductions that have been credited or assumed elsewhere. Citing the definition of “surplus” provided in the EPA's technical support document (TSD), Earthjustice claims that the EPA has not explained how these particular emission reductions are surplus to the various other voluntary emission reductions relied upon in the SIP. For example, Earthjustice cites the emission reductions relied upon to satisfy the CAA section 185 requirements for this area (SJVUAPCD Rule 3170); the District's assumption that mitigation funds will offset the growth in oil and gas emissions as a result to the Kern County Program environmental impact report (EIR); the District's claim that its boiler, winery, and other rules meet minimum control requirements by requiring mitigation funds to achieve reductions in lieu of installing advanced controls ( e.g., SJVUAPCD Rule 4320 and Rule 4694); and the District's retirement of surplus emission reductions to demonstrate the equivalency of its new source review program (SJVUAPCD Rule 2201). According to Earthjustice, these voluntary incentive programs have become “an accounting shell game” and the EPA cannot deem the associated emission reductions surplus until all of the “overlapping” incentive program reductions are analyzed.

Response 1: We disagree with these claims. As a general matter, an incentive-based measure may be credited toward the control strategy in an attainment plan if the State demonstrates that the emission reductions achieved by the measure will not be “double-counted” in the same attainment plan. The EPA's March 2018 guidance document entitled “Diesel Retrofit and Replacement Projects: Quantifying and Using Their Emission Benefits in SIPs and Conformity: Guidance for State and Local Air and Transportation Agencies,” March 2018 (“2018 Diesel Retrofits Guidance”) states that “[e]mission reductions are considered `surplus' if they are not otherwise relied on to meet other applicable air quality attainment or maintenance requirements for that particular NAAQS pollutant ( i.e., there can be no double-counting of emission reductions).”  33 Similarly, the EPA's October 1997 guidance document entitled “Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in State Implementation Plans (SIPs),” October 24, 1997 (“1997 VMEP”), states that “VMEP emission reductions may not be substituted for mandatory, required emission reductions,” and that “States may submit to EPA for approval any program that will result in emission reductions in addition to those already credited in a relevant attainment or maintenance plan, or used for purposes of SIP demonstrations such as conformity, rate of progress, or emission credit trading programs. 34

The EPA's intent in these guidance documents was to ensure that emission reductions achieved through implementation of voluntary programs, including incentive-based vehicle replacement programs, are not double-counted in the attainment or maintenance plan for a particular NAAQS. 35 Although two other EPA guidance documents cited in the EPA's TSD state that emission reductions achieved by voluntary programs should also be surplus to other adopted state air quality programs (even those not in the relevant SIP), 36 these guidance documents provide only interpretive guidance and are not binding on the EPA. In the context of a control strategy to provide for attainment of a particular NAAQS, we find that an incentive-based measure need not achieve emission reductions that are surplus to all adopted state air quality programs and may, instead, be credited toward the control strategy if the State demonstrates that the measure achieves emission reductions that are not already accounted for in the particular attainment plan at issue.

Thus, to satisfy the surplus ( i.e., additionality) criterion in the EPA's longstanding guidance, the Amended Valley Incentive Measure need only be surplus to the control measures and programs that are accounted for in the attainment plan(s) in which CARB relies upon this measure. On May 10, 2019, California submitted an integrated PM 2.5 attainment plan for the San Joaquin Valley that includes, among other things, a Serious area plan to provide for attainment of the 2006 24-hour PM 2.5 NAAQS by 2024 (“2006 NAAQS Plan”) and a Serious area plan to provide for attainment of the 2012 annual PM 2.5 NAAQS by 2025 (the “2012 NAAQS Plan”) (collectively the “SJV PM 2.5 Plan”). 37 The 2006 NAAQS Plan relies on the 2024 tonnage commitment in the Amended Valley Incentive Measure to achieve a portion of the emission reductions necessary for attainment of these NAAQS by the end of 2024, 38 and the 2012 NAAQS Plan relies on the 2025 tonnage commitment in the Amended Valley Incentive Measure to achieve a portion of the emission reductions necessary for attainment of this NAAQS by the end of 2025. 39 Accordingly, we have reviewed both the baseline emissions projections for off-road mobile, diesel agricultural equipment and the attainment control strategy in the SJV PM 2.5 Plan to determine whether the emission reductions to be achieved through implementation of the Amended Valley Incentive Measure have already been credited in this attainment plan.

With respect to mobile source emissions projections, air quality plans, including the SJV PM 2.5 Plan, rely on emissions estimates that have been derived from the use of emissions models or other emissions projection methodologies that assume certain rates of replacement of older equipment with newer equipment manufactured to meet more stringent emissions standards ( i.e., fleet turnover). Use of such models and methodologies is the standard emission estimation technique, and the emissions projections made using them are generally considered sufficiently accurate for plan development purposes. The assumptions regarding fleet turnover are similar to other planning assumptions used to develop air quality plans, such as assumptions regarding population and employment growth and changes in vehicle activity. Such assumptions are not enforceable in the way that emissions limitations are enforceable. Rather, the obligation on the state for plan development is to use the latest planning assumptions and most recently developed emissions models and inventories. 40

In the case of the SJV PM 2.5 Plan, the emissions projections reflect the latest planning assumptions and emissions inventories available at the time of plan development. The Demonstration states that the projected baseline inventory for off-road mobile, diesel agricultural equipment in the 2018 PM 2.5 Plan is based on a 2011 emissions inventory described in a CARB report entitled, “Emission Inventory for Agricultural Diesel Vehicles,” August 2018 (“Agricultural EI Report”). 41 This 2011 emission inventory is based on a 2008 survey of agricultural producers, custom operators, and first processors for self-propelled diesel agricultural equipment over 25 horsepower in size, as well as data on farms and acreage from a 2007 census conducted by the U.S. Department of Agriculture (USDA). 42 According to CARB, the 2011 emissions inventory for agricultural equipment in the 2018 PM 2.5 Plan was derived only from base year inputs that do not account for incentive programs and does not reflect the future-year population forecast that accounts for incentive programs. 43 In response to the EPA's request for clarification, CARB provided this further explanation by email dated November 13, 2020:

To illustrate, CARB provided a figure showing baseline projected NO X emissions from 2015-2049 for three different scenarios: a projection reflecting only natural turnover, a projection including existing incentive projects, and a projection including both existing and anticipated future incentive projects. 45 The downward slopes of the two curves that include incentive projects are initially steeper than the projection reflecting only natural turnover, indicating that incentive projects result in accelerated turn-over of vehicles compared to business as usual. We find the documentation in the SJV PM 2.5 Plan and additional information provided by CARB sufficient to confirm that the baseline emissions projections for off-road diesel agricultural equipment sources in the SJV PM 2.5 Plan do not account for emission reductions to be achieved through implementation of the Amended Valley Incentive Measure.

The attainment control strategy in the SJV PM 2.5 Plan also does not specifically rely on implementation of Carl Moyer or FARMER projects for SIP emission reduction credit. As explained in the EPA's proposed rule to approve relevant portions of the SJV PM 2.5 Plan for 2006 PM 2.5 NAAQS purposes, the majority of the NO X emission reductions needed for attainment of the 2006 PM 2.5 NAAQS in the SJV by 2024 come from baseline measures, none of which rely on implementation of Carl Moyer or FARMER projects. 46 For the remainder of the NO X reductions necessary for attainment of the 2006 PM 2.5 NAAQS by 2024, the SJV PM 2.5 Plan relies primarily on CARB's and the District's enforceable commitments to achieve additional emission reductions, in the aggregate, through implementation of new or revised measures by the beginning of 2024. 47 The SJV PM 2.5 Plan also relies on these same enforceable commitments by CARB and the District to achieve the additional emission reductions needed for attainment of the 2012 PM 2.5 NAAQS by 2025. 48 The SJV PM 2.5 Plan indicates that CARB anticipates fulfilling a portion of these emission reduction commitments through implementation of incentive funds for off-road diesel agricultural equipment, 49 but the plan does not specifically credit any incentive program with emission reductions, as the EPA has not previously approved any incentive- based control measure for SIP credit in this plan. 50 Thus, the Amended Valley Incentive Measure is the first incentive-based control measure to be approved into the SJV PM 2.5 Plan and will achieve emission reductions beyond those already credited in this plan.

Although the EPA did not previously credit the Amended Valley Incentive Measure toward the control strategy in the SJV PM 2.5 Plan, our approval of this measure represents progress in CARB's implementation of the SIP-approved control strategy in this plan. In addition to specific emission reduction commitments for 2024 and 2025, the SJV PM 2.5 Plan contains commitments by CARB to bring certain defined measures, including a proposed incentive-based measure for agricultural equipment, to the Board for consideration according to the schedule set forth in the plan. 51 CARB's adoption, implementation, and submission of the Valley Incentive Measure achieves a portion of CARB's aggregate NO X and PM 2.5 emission reduction commitments in the SIP (specifically, 4.83 and 4.46 tpd of CARB's NO X reduction commitments and 0.24 and 0.26 tpd of CARB's PM 2.5 reduction commitments for 2024 and 2025, respectively), 52 and satisfies the State's commitment to bring a proposed incentive-based measure for agricultural equipment to the Board for consideration.

Earthjustice contends that the EPA must explain how the emission reductions achieved through implementation of the Valley Incentive Measure are “surplus to the various other voluntary emission reductions relied upon in the SIP.” As stated above, however, to satisfy the surplus criterion in the EPA's longstanding guidance, the Amended Valley Incentive Measure need only be surplus to the control measures and programs that are credited toward the attainment control strategies in the 2006 NAAQS Plan and 2012 NAAQS Plan. The SJV PM 2.5 Plan identifies 33 District measures achieving direct PM 2.5 and/or NO X emissions reductions that support attainment of the PM 2.5 NAAQS in the San Joaquin Valley. 53 With the exception of SJVUAPCD Rule 4320, none of the programs or regulations cited by Earthjustice ( i.e., SJVUAPCD Rule 3170, mitigation funds related to the Kern County Program EIR, SJVUAPCD Rule 4694, or SJVUAPCD Rule 2201) is included among these 33 baseline measures. 54 Because these programs and regulations are not part of the attainment control strategy in either the 2006 NAAQS Plan or the 2012 NAAQS Plan, they are not relevant to our evaluation of the Amended Valley Incentive Measure. 55

SJVUAPCD Rule 4320 is identified as a baseline control measure in the SJV PM 2.5 Plan. 56 The EPA approved Rule 4320, adopted October 16, 2008, into the California SIP on March 25, 2011, but noted that the rule did not qualify for SIP credit for attainment planning purposes until the District submitted adequate supporting documentation. 57 Although the SJV PM 2.5 Plan relies on NO X and PM 2.5 emission reductions from Rule 4320, which is not eligible for SIP credit at this time, the District's inclusion of this rule in the attainment control strategy for the 2006 NAAQS Plan has no material effect on our evaluation of that attainment demonstration or the Amended Valley Incentive Measure because the emission reductions attributed to Rule 4320 are de minimis. According to the District's control strategy analysis in Appendix C of the 2018 PM 2.5 Plan, the District has attributed 0.60 and 0.21 tpd of NO X and PM 2.5 emission reductions, respectively, to Rule 4320 in 2024, 58 amounting to 0.3 percent of the total NO X reductions and 3.3 percent of the total PM 2.5 reductions necessary for attainment of the 2006 PM 2.5 NAAQS by 2024. 59 Similarly, the District has attributed 0.64 and 0.23 tpd of NO X and PM 2.5 emission reductions, respectively, to Rule 4320 in 2025, 60 amounting to 0.3 percent of the total NO X reductions and 3.6 percent of the total PM 2.5 reductions necessary for attainment of the 2012 PM 2.5 NAAQS by 2025. 61 These amounts of emission reductions have a de minimis impact on our evaluation of the relevant attainment demonstrations and of the Amended Valley Incentive Measure. Moreover, the commenter has provided no support for a conclusion that Rule 4320 relies on implementation of Carl Moyer or FARMER projects, nor any support for a conclusion that the NO X or PM 2.5 emission reductions attributed to this rule in the SJV PM 2.5 Plan include emission reductions from such incentive projects. 62 We have no information before us indicating that either Rule 4320 or the attainment demonstration in the SJV PM 2.5 Plan relies on any Carl Moyer or FARMER project that may also be used to satisfy the tonnage commitments in the Amended Valley Incentive Measure— i.e., that there is any double-counting of emission reductions from the same incentive projects in this plan. Accordingly, we disagree with Earthjustice's suggestion that the Amended Valley Incentive Measure fails to meet the surplus (additionality) criterion because of the SJV PM 2.5 Plan's reliance on Rule 4320 as a baseline control measure.

Finally, under California State law, Carl Moyer funding is generally prohibited for any project that is required by any local, state, or federal statute, rule, regulation, memoranda of agreement or understanding, or other legally binding document in effect as of the date the grant is awarded. 63 CARB states in the Demonstration that all emission reductions associated with turning over older and dirtier agricultural equipment to cleaner equipment are “surplus to District and State regulations because agricultural equipment is not subject to any District or State regulation.”  64 CARB also identifies in the Demonstration those portions of the 2011 and 2017 Carl Moyer Guidelines that ensure that funding will be provided only to those projects that achieve emission reductions beyond those required by local, state, or federal requirements or other legally binding documents. 65 Because the FARMER projects relied on in the Amended Valley Incentive Measure  66 are subject to the 2017 Carl Moyer Guidelines, CARB's rationale for finding that the identified Carl Moyer projects achieve surplus emission reductions also applies to the identified FARMER projects. 67

For all of these reasons, we find that the Amended Valley Incentive Measure achieves “surplus” emission reductions— i.e., emission reductions beyond those already credited in the SJV PM 2.5 Plan.

Comment 2: Earthjustice states that the Valley Incentive Measure does not satisfy the enforceability requirements in section 110(a)(2)(A) of the CAA. Citing the EPA's Memo to Docket for a rulemaking entitled “State Implementation Plans: Response to Petition for Rulemaking; Finding of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction,” Earthjustice states that to be “enforceable,” a measure must be enforceable by the state, the EPA, and citizens. Earthjustice also states that the mere approval of a measure into the SIP does not convert an unenforceable provision into an enforceable one, and that the EPA's SIP rulemaking must explain how the proposed measure can be enforced. According to Earthjustice, the EPA's proposed rule to approve the Valley Incentive Measure has not provided a legally defensible analysis of how this rule is enforceable.

Response 2: We agree with Earthjustice's statement that the mere approval of a measure into the SIP does not convert an unenforceable provision into an enforceable one, but we disagree with Earthjustice's claim that CARB's commitments in the Valley Incentive Measure are not enforceable. We explain below how the EPA and citizens may enforce the provisions of CARB's SIP commitments in the Amended Valley Incentive Measure. We respond to Earthjustice's more specific comments concerning enforceability in our responses to comments 3 through 12. We note that our evaluation here is limited to CARB's commitments in the Amended Valley Incentive Measure and that the EPA will review each incentive-based control measure submitted by a state on a case-by-case basis, following notice-and-comment rulemaking, to determine whether the applicable requirements of the Act are met.

Under CAA section 110(a)(2)(A), SIPs must include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the Act, as well as timetables for compliance. Similarly, section 172(c)(6) provides that nonattainment area SIPs must include enforceable emission limitations and such other control measures, means or techniques as may be necessary or appropriate to provide for attainment of the NAAQS by the applicable attainment date.

Control measures, including commitments in SIPs, are enforced through CAA section 304(a), which provides for citizen suits to be brought against any “person,” including a state, 68 who is alleged “to be in violation of . . . an emission standard or limitation. . . .” “Emission standard or limitation” is defined in subsection (f) of section 304. 69 As observed in Conservation Law Foundation, Inc. v. James Busey et al., 79 F.3d 1250, 1258 (1st Cir. 1996):

Thus, courts have found that the citizen suit provision cannot be used to enforce the aspirational goal of attaining the NAAQS but can be used to enforce specific strategies to achieve that goal. 70

SIP control measures and commitments may also be enforced by the EPA under section 113(a)(1) of the Act, which authorizes the EPA to issue notices and compliance orders, assess administrative penalties, and bring civil actions against any “person,” including a state, who “has violated or is in violation of any requirement or prohibition of an applicable implementation plan. . . .”  71

CARB's commitments in the Amended Valley Incentive Measure are set forth on pages 7-12 of CARB Resolution 19-26 (December 12, 2019), as amended and clarified by the Technical Corrections Document and the 2021 Clarification Document. 72 We refer to these submissions collectively as the “Amended Valley Incentive Measure.” The portions of CARB's commitments in the Amended Valley Incentive Measure that we are approving in this rule include seven key components, as summarized below:

(1) Commitments to monitor the District's implementation of estimated numbers of Carl Moyer and FARMER projects in accordance with specified portions of the relevant program guidelines;

(2) commitments to achieve specific amounts of NO X and PM 2.5 emissions reductions in the San Joaquin Valley by 2024 and 2025 through implementation of the identified types of incentive projects or through adoption and submission of substitute control measures (hereafter “tonnage commitments”);

(3) commitments to submit reports to the EPA by May 15 each year from 2021 through 2025, each of which must include specific information about the incentive projects funded through the previous year and state CARB's determination of whether the identified projects are expected to fulfill the NO X and PM 2.5 tonnage commitments (hereafter “annual demonstration reports”);

(4) commitments to make the annual demonstration reports available on CARB's website and to the public upon request, by May 15 of each year from 2021 to 2030, and to maintain all annual demonstration reports through December 31, 2030;

(5) commitments to provide to the public, upon request, certain project-specific documents relied upon in the preparation of CARB's annual demonstration reports, including project applications, grant contracts, and inspection-related documents;

(6) if CARB is relying on any substitute incentive projects to fulfill the tonnage commitments, commitments to confirm that all such substitute incentive projects are subject to the program criteria identified in the Amended Valley Incentive Measure and to provide specific information about each substitute project in the relevant annual demonstration report(s); and

(7) commitments to adopt and submit substitute measures or rules to the EPA by a date certain, if the EPA determines that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the tonnage commitments for a given year will occur on schedule. 73

CARB states in the Demonstration that “CARB is the responsible party for enforcement of this measure and is responsible for achieving the emission reductions from this measure,” thus expressing CARB's decision to voluntarily commit itself to fulfilling the tonnage commitment and to being held accountable for failure to fulfill this commitment. 74

Upon the EPA's approval of these commitments into the SIP under CAA section 110, the commitments will become federally enforceable requirements of an “applicable implementation plan” as defined in CAA section 302(q). Therefore, as discussed below, both citizens and the EPA may enforce these commitments under CAA sections 304(a)(1) and 113(a)(1), respectively. We describe each enforceable component of the Amended Valley Incentive Measure below.

First, the Amended Valley Incentive Measure obligates CARB to monitor the District's implementation of estimated numbers of Carl Moyer and FARMER projects in accordance with specified portions of the relevant program guidelines. 75 The Carl Moyer and FARMER program guidelines  76 enable CARB to carry out these oversight responsibilities by requiring, among other things, that air districts (1) maintain, for specified periods of time, all project-related documentation obtained from participating sources and through the air district's on-site project inspections;  77 (2) make such documents available to CARB staff during CARB's periodic “incentive program reviews” and upon request;  78 (3) submit a certified “yearly report” to CARB containing specific information about funded projects, including information sufficient to calculate emission reductions and cost-effectiveness for source categories where required;  79 and (4) allow CARB and its designees to conduct fiscal audits and to inspect project engines, vehicles, and/or equipment and associated records during the contract term. 80 The Carl Moyer Guidelines also specifically identify types of actions on the part of the implementing air district that CARB may treat as violations of program requirements— e.g., misuse of Carl Moyer program funds to fund ineligible projects and insufficient, incomplete, or inaccurate project documentation  81 —and authorize CARB to enforce the terms of a project contract at any time during the contract term to ensure that emission reductions are achieved. 82 If CARB fails to document in each annual demonstration report the steps it has taken to exercise these monitoring responsibilities, that failure would constitute a violation of the SIP commitment. See Response 4.

Second, the Amended Valley Incentive Measure obligates CARB to achieve, by December 31, 2023, a total of 4.83 tpd of reductions in NO X emissions and 0.24 tpd of reductions in PM 2.5 emissions from the 2024 baseline inventory in the 2018 PM 2.5 Plan through implementation of (a) the Carl Moyer and FARMER projects identified in sections B and D of the commitment, (b) substitute incentive projects consistent with paragraph A.4 of the commitment, or (c) other substitute control measures adopted and submitted to the EPA in accordance with paragraph A.5 of the commitment. 83 If CARB fails to achieve these amounts of NO X and PM 2.5 emission reductions by December 31, 2023, through implementation of incentive projects or substitute control measures that meet the identified criteria, that failure would constitute a violation of the SIP commitment.

Similarly, the Amended Valley Incentive Measure obligates CARB to achieve, by December 31, 2024, a total of 4.46 tpd of reductions in NO X emissions and 0.26 tpd of reductions in PM 2.5 emissions from the 2025 baseline inventory in the 2018 PM 2.5 Plan, through implementation of (a) the Carl Moyer and FARMER projects identified in sections B and D of the commitment, (b) substitute incentive projects consistent with paragraph A.4 of the commitment, or (c) other substitute control measures adopted and submitted in accordance with paragraph A.6 of the commitment. 84 If CARB fails to achieve these amounts of NO X and PM 2.5 emission reductions by December 31, 2024, through implementation of incentive projects or substitute control measures that meet the identified criteria, that failure would constitute a violation of the SIP commitment.

Third, the Amended Valley Incentive Measure obligates CARB to submit annual demonstration reports to the EPA by May 15 each year from 2021 through 2025, each of which must contain specific information about the incentive projects funded through the previous year and state CARB's determination of whether the identified projects are projected to fulfill the NO X and PM 2.5 tonnage commitments for 2024 and 2025. 85 If CARB fails to timely submit an annual demonstration report containing all of the information listed in paragraphs A.3, B.2 and D.2 of the Amended Valley Incentive Measure, that failure would constitute a violation of the SIP commitment.

Fourth, the Amended Valley Incentive Measure obligates CARB to make the annual demonstration reports available on CARB's website and to the public upon request, by May 15 of each year from 2021 to 2030, and to maintain all annual demonstration reports through December 31, 2030. 86 If CARB fails to make any of these reports available on its website or available upon request by May 15 of the relevant year, that failure would constitute a violation of the SIP commitment.

Fifth, the Amended Valley Incentive Measure obligates CARB to provide to any requestor, beginning May 15, 2021, and through 2029, certain project-specific documents relied upon in the preparation of CARB's annual demonstration reports, including project applications, grant contracts, and inspection-related documents. 87 If CARB fails to provide any of these project records within a reasonable period after receiving a request, that failure would constitute a violation of the SIP commitment.

Sixth, the Amended Valley Incentive Measure obligates CARB to provide, in each annual demonstration report, confirmation that any substitute incentive projects that it relies on to fulfill the tonnage commitments are subject to the program criteria identified in paragraph B.1 or D.1 of the commitment and to provide specific information about each substitute project. 88 If CARB fails to submit such information in any annual demonstration report that documents CARB's reliance on substitute incentive projects, that failure would constitute a violation of the SIP commitment.

Finally, if the EPA determines by August 1, 2022, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2024 tonnage commitments will occur on schedule, the Amended Valley Incentive Measure obligates CARB to adopt and submit to the EPA, no later than September 1, 2023, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2024. 89 If CARB fails to adopt and submit timely substitute measures or rules sufficient to address a shortfall in required emission reductions, that failure would constitute a violation of the SIP commitment.

Similarly, if the EPA determines by August 1, 2023, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2025 tonnage commitments will occur on schedule, the Amended Valley Incentive Measure obligates CARB to adopt and submit to the EPA, no later than September 1, 2024, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2025. 90 If CARB fails to adopt and submit timely substitute measures or rules sufficient to address a shortfall in required emission reductions, that failure would constitute a violation of the SIP commitment.

This series of actions mandated by the Amended Valley Incentive Measure constitutes a specific enforceable strategy for achieving specific amounts of NO X and PM 2.5 reductions by the beginning of 2024 and 2025. The fact that CARB may meet its SIP commitments by adopting measures that are not specifically identified in the SIP, or through one of several available techniques, does not render the requirement to achieve the emissions reductions unenforceable. 91

For all of these reasons, we conclude that CARB's commitments in the Amended Valley Incentive Measure to monitor and report annually on the implementation of specific types of incentive projects, to achieve specified tonnages of NO X and PM 2.5 emission reductions from these projects or substitute measures, to make the annual demonstration reports and related documentation available to the public, and to adopt and submit substitute control measures where necessary to address an emission reduction shortfall identified by the EPA, constitute appropriate means, techniques, or schedules for compliance under sections 110(a)(2)(A) and 172(c)(6) of the Act.

Comment 3: Earthjustice states that citizens and the EPA can only enforce “violations,” and that the EPA must describe what would constitute a violation of the SIP provisions being approved here. Citing section 304(a)(1) of the CAA, Earthjustice states that citizens can commence civil actions for violations of emission standards or limitations or orders issued by the EPA or a state with respect to such standards or limitations. Additionally, citing section 113(a)(1) of the Act, Earthjustice states that the EPA can enforce a violation of any requirement or prohibition of an applicable implementation plan. Earthjustice notes the EPA's statement in the TSD that to be enforceable, program violations must be defined, and asserts that the EPA must explain where in the Valley Incentive Measure such definitions are provided. According to Earthjustice, the EPA “suggests that EPA and citizens can enforce the commitments to achieve and report on emission reductions” but does not define what exactly would constitute a violation.

Response 3: We identify in Response 2 the types of violations of the commitments that could provide the basis for an enforcement action by the EPA or by citizens under section 113(a)(1) or 304(a)(1) of the CAA, respectively. As explained in Response 2, CARB's commitments constitute a specific enforceable strategy for achieving specific amounts of NO X and PM 2.5 reductions on a fixed schedule and, upon approval into the SIP, become requirements of an “applicable implementation plan” as defined in CAA section 302(q). Although the Amended Valley Incentive Measure does not specifically define potential violations of the commitments, we find that it describes each of the actions that CARB has committed to undertake in sufficient detail to enable the EPA and the public to determine whether and when a violation has occurred. Accordingly, these commitments are enforceable by citizens under CAA section 304(a)(1) and by the EPA under CAA section 113(a)(1).

Comment 4: Earthjustice states that CARB's commitment to “monitor” District and NRCS implementation of projects in accordance with the Carl Moyer program, FARMER and NRCS guidelines is a “vague and unenforceable commitment.” Earthjustice asks what would constitute a violation, and how one could prove that CARB is not monitoring implementation in accordance with the guidelines. Earthjustice asserts that there is no means of measuring or independently verifying compliance because there is no reporting requirement and no deadline. Additionally, Earthjustice claims that the reference to “an estimated 5,446 . . . replacement projects” in CARB's commitment “undermines the very notion that CARB even know[s] what or how many projects to monitor.” Earthjustice notes that CARB cannot receive detailed compliance reports on projects under the NRCS program and can only request “representative samples of the compliance-related documentation” used by the NRCS to compile anonymized annual reports. Earthjustice asserts that there is no way to enforce this monitoring obligation, and even if one could, there is no way for CARB to actually fulfill its obligations because it has no monitoring authority itself.

Response 4: We disagree with these comments. CARB's commitments to monitor the District's implementation of projects in accordance with the Carl Moyer Guidelines and FARMER Guidelines are enforceable through specific provisions in the Amended Valley Incentive Measure that require CARB to report annually on, among other things, the incentive projects it is relying on to achieve emission reductions and the actions that CARB or the District has taken to ensure that these projects comply with the applicable guidelines and program criteria. See Response 2.

Specifically, the Amended Valley Incentive Measure obligates CARB to identify, in each annual demonstration report submitted to the EPA by May 15 of each year from 2021 through 2025, those projects funded through the previous year that CARB is relying on to achieve the tonnage commitments for 2024 and 2025. CARB must identify each of these projects “by project identification number, project life and implementation date, description of both baseline and new equipment sufficient to independently calculate emission reductions, applicable incentive program guideline, and quantified emission reductions.”  92 Additionally, each annual demonstration report must include supporting documentation for the reported project information, describe any changes to the applicable guidelines or program criteria, and describe the implementing agency's actions to review selected projects for compliance with these criteria. 93

For Carl Moyer projects, the Amended Valley Incentive Measure obligates CARB to include in each annual demonstration report a “description of any changes to the 2011 and 2017 Moyer Guidelines and their related impacts on program integrity” and “a description of CARB and the District's actions during the prior year to monitor selected projects for compliance with Moyer Program requirements.”  94 Similarly, for FARMER projects, CARB must include in each annual demonstration report a “description of any changes to the 2018 FARMER Guidelines and their related impacts on program integrity” and “a description of CARB's and the District's actions during the prior year to monitor selected projects for compliance with FARMER Program requirements.”  95 Finally, for both incentive programs, if the total number of implemented projects is less than the estimated number of projects identified in paragraph B.1 or D.1 of CARB Resolution 19-26 (as applicable), CARB's annual demonstration report must confirm that any substitute projects relied on to fulfill the tonnage commitments are subject to the program criteria identified in paragraph B.1 or D.1 and provide, for each substitute project, all of the information required in paragraph B.2.c and D.2.c. 96

These provisions ensure that CARB's annual demonstration reports will contain both the project-specific information needed to independently calculate the emission reductions that CARB attributes to each project and the programmatic information needed to determine whether CARB and the District are taking appropriate steps to ensure that the identified projects comply with the applicable guidelines and program criteria. 97 If CARB's annual demonstration report for a given year fails to identify the project-specific information described in paragraphs A.3, B.2, or D.2 of CARB Resolution 19-26, as amended by the Technical Corrections Document, or to document the steps it has taken to verify the District's compliance with the applicable guidelines and program criteria, the EPA or citizens may bring an enforcement action against CARB for violating its monitoring and reporting obligations in the Amended Valley Incentive Measure.

Both CARB and the District are directly responsible for ensuring that the Carl Moyer program is implemented in accordance with State law. 98 As explained in Response 2, the Carl Moyer program guidelines enable CARB to monitor the implementing air district's compliance with the applicable program guidelines by requiring, among other things, that air districts maintain compliance-related documentation, make such documents available to CARB staff upon request, submit certified “yearly reports” to CARB containing specific information about funded projects, and allow CARB and its designees to inspect project engines, vehicles, and/or equipment and associated records during the contract term. 99 The Carl Moyer program guidelines also specifically identify types of actions on the part of the implementing air district that CARB may treat as program violations and authorize CARB to enforce the terms of a project contract. 100 If CARB fails to document in each annual demonstration report the steps it has taken to exercise these monitoring responsibilities, that failure would constitute a violation of the SIP commitment.

As Earthjustice correctly notes, we stated in our TSD that the Valley Incentive Measure obligates CARB to monitor an “estimated” total of 5,446 off-road diesel agricultural equipment replacement projects in accordance with the Carl Moyer, FARMER, and NRCS programs and their respective guidelines. 101 Earthjustice claims that this reference to an “estimated” number of projects “undermines the very notion that CARB even know[s] what or how many projects to monitor.” This comment, however, appears to be based on a misunderstanding of the purpose of these provisions of the commitment. CARB's primary obligations under the Amended Valley Incentive Measure are to (1) monitor District implementation of estimated numbers of incentive projects in accordance with specified portions of the relevant program criteria, (2) fulfill specific NO X and PM 2.5 tonnage commitments through implementation of the identified projects or through adoption and submission of substitute control measures, (3) submit to the EPA, each year from 2021 to 2025, a publicly available annual demonstration report that includes specific information about the projects funded through the previous year, (4) maintain and provide to the public, upon request, the documentation that CARB has relied on to develop the annual demonstration reports, and (5) adopt and submit substitute measures or rules by specific dates, if the EPA determines that information submitted by CARB is insufficient to demonstrate that the identified projects will fulfill the tonnage commitments. See Response 2.

The Amended Valley Incentive Measure does not obligate CARB to ensure implementation of any particular number of projects. The purpose of the project number estimates in paragraphs B.1 and D.1 (and the total project number estimates provided in paragraph A.3) of CARB Resolution 19-26 is to establish reasonable limits on the extent to which CARB may change the list of projects relied upon from year to year, while allowing CARB some flexibility to substitute listed projects with different project types, 102 provided all projects identified in the annual demonstration report satisfy the applicable program criteria  103 and achieve, in the aggregate, the tonnages of emission reductions identified in paragraphs A.1 and A.2 of CARB Resolution 19-26. In this way, the project number estimates enable the EPA and the public to hold CARB responsible for overseeing substantial numbers of projects under both the Carl Moyer and FARMER programs and ensuring that its selected mix of projects ultimately fulfills the tonnage commitments by 2024 and 2025. 104 We therefore disagree with Earthjustice's claim that the project number estimates “undermine” CARB's ability to carry out its monitoring obligation.

Additionally, as explained in Response 2, CARB is obligated to achieve 4.83 and 4.46 tpd of NO X emission reductions by December 31, 2023 and December 31, 2024, respectively, and to achieve 0.24 and 0.26 tpd of PM 2.5 emission reductions by December 31, 2023 and December 31, 2024, respectively, either through implementation of the identified agricultural equipment replacement projects or through substitute measures adopted and submitted in accordance with the deadlines specified in paragraphs A.5 and A.6 of CARB Resolution 19-26. 105 Thus, although CARB is not specifically obligated to ensure that certain numbers of incentive projects are implemented or to achieve the required NO X or PM 2.5 emission reductions through incentive projects, CARB is obligated to monitor substantial numbers of the specified types of incentive projects for the purpose of determining whether those projects will achieve the necessary amounts of NO X and PM 2.5 emission reductions by December 31, 2023, and December 31, 2024, in the San Joaquin Valley. If CARB fails to adequately document its bases for finding that the identified incentive projects have fulfilled the tonnage commitments, CARB must adopt and submit substitute measures sufficient to address the shortfall. 106

Comment 5: Earthjustice states that nothing in CARB's commitment to achieve 5.9 tpd of NO X and 0.3 tpd of PM 2.5 emission reductions by December 31, 2023, or its commitment to achieve 5.1 tpd of NO X and 0.3 tpd of PM 2.5 by December 31, 2024, specifies where these emission reductions must come from or where they must occur. Earthjustice claims that nothing specifies whether these reductions must be the result of some action by the agencies or merely the result of favorable economic conditions, and that CARB has relied on the latter in the past to claim compliance with similar “commitments.” Earthjustice further claims that there is no way for the EPA or citizens to look at the entire emissions inventory for the San Joaquin Valley on December 31, 2024, and determine whether CARB has achieved this emission reduction, and that even if overall emissions increase between 2019 and 2022, CARB could still claim that but for some unspecified reason, the total NOx emissions would have been 5.9 tpd higher. Earthjustice argues that because there is no way to prove that CARB has not achieved the NO X and PM 2.5 reductions, the commitment fails to define any possible violation and is not practicably enforceable.

Response 5: We identify in Response 2 the types of violations of the commitments that may provide the basis for an enforcement action by the EPA or by citizens under section 113(a)(1) or 304(a)(1) of the CAA, respectively. As explained in Response 2, CARB's commitments constitute a specific enforceable strategy for achieving specific amounts of NO X and PM 2.5 reductions on a fixed schedule and, upon approval into the SIP, become requirements of an “applicable implementation plan” as defined in CAA section 302(q). Accordingly, these commitments are enforceable by citizens under CAA section 304(a)(1) and by the EPA under CAA section 113(a)(1).

Earthjustice's characterization of CARB's commitments is incorrect in several respects. First, with respect to CARB's commitments to achieve specific amounts of NO X and PM 2.5 reductions by December 31, 2023, and by December 31, 2024, Earthjustice claims incorrectly that the commitments do not specify where these emission reductions must come from or where they must occur. The Amended Valley Incentive Measure specifies that CARB must achieve emission reductions through implementation of one or both of the following types of measures: (1) Incentive projects implemented in accordance with specified program criteria, and/or (2) substitute control measures adopted and submitted to the EPA by specified deadlines. 107 It also makes clear that these emission reductions must occur in the San Joaquin Valley. 108

Second, Earthjustice claims incorrectly that nothing in the commitment “specifies whether [the emission reductions] must be the result of some action by the agencies or merely the result of favorable economic conditions, which is exactly how CARB has claimed compliance with similar `commitments' in the past.” By its terms, the Amended Valley Incentive Measure obligates CARB to “achieve” the identified emission reductions by December 31, 2023, and December 31, 2024, either by confirming implementation of identified incentive projects in accordance with specific guidelines and program criteria or by adopting and submitting to the EPA substitute control measures that achieve equivalent emission reductions by December 31, 2023, or December 31, 2024, as applicable. In the interpretative statements preceding these commitments and in the Demonstration, CARB recognizes its obligation to “provide a publicly-enforceable commitment to achieve the reductions”  109 and confirms that the Amended Valley Incentive Measure is enforceable because it “ensur[es] that actions required of project grantees are independently verifiable, program violations are defined, those liable can be identified, penalties or corrective action may occur and citizens have access to all emissions-related information obtained from participating sources.”  110 Nowhere in the Amended Valley Incentive Measure or in CARB's interpretative statements does CARB indicate that favorable economic conditions may suffice to achieve the aggregate tonnage commitments.

We note that in prior EPA actions approving aggregate tonnage commitments from CARB, the EPA has rejected claims that “actual emission decreases” resulting from an economic recession or other circumstances may count towards meeting the commitments and made clear that the only permissible means for achieving the required emission reductions is through notice-and-comment rulemaking procedures leading to the adoption and implementation of enforceable control measures. 111

Third, Earthjustice suggests, incorrectly, that the EPA and citizens would have to look at the entire emissions inventory for the San Joaquin Valley on December 31, 2024 (or December 31, 2023), to determine whether CARB has achieved the emission reductions required in the Valley Incentive Measure. For the reasons stated in this response and earlier in Response 2, it is not necessary to review an emissions inventory to determine whether CARB has achieved the required reductions. The Amended Valley Incentive Measure obligates CARB to provide, in each annual demonstration report submitted to the EPA from May 2021 through May 2025, detailed information about each incentive project that CARB is relying on to achieve the necessary emission reductions, including identification and descriptions of both the old (replaced) and new equipment sufficient to independently calculate emission reductions. 112 Each of these annual demonstration reports must be readily available to the public upon submission to the EPA and remain available on CARB's website through December 31, 2030. 113 If CARB's 2024 annual demonstration report (which is due May 15, 2024) fails to demonstrate that the identified projects have achieved 4.83 tpd of NO X emission reductions and 0.24 tpd of PM 2.5 emission reductions from the 2024 baseline inventory in the 2018 PM 2.5 Plan, citizens may sue CARB for violating its SIP commitment. Likewise, if CARB's 2025 annual demonstration report (due May 15, 2025) fails to demonstrate that the identified projects have achieved 4.46 tpd of NO X emission reductions and 0.26 tpd of PM 2.5 emission reductions from the 2025 baseline inventory in the 2018 PM 2.5 Plan, citizens may sue CARB for violating its SIP commitment. The tonnage commitments remain enforceable even if the EPA has not made an insufficiency determination in accordance with paragraph A.5 or A.6 of CARB Resolution 19-26. See Response 7 and Response 9.

Additionally, if the EPA determines by August 1, 2022, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2024 tonnage commitments will occur on schedule, CARB must adopt and submit to the EPA, no later than September 1, 2023, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2024. 114 Likewise, if the EPA determines by August 1, 2023, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2025 tonnage commitments will occur on schedule, CARB must adopt and submit to the EPA, no later than September 1, 2024, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2025. 115 Any such substitute control measure must be adopted following state rulemaking procedures through which the EPA and the public may track the State's progress in achieving the requisite emissions reductions. We expect CARB to make clear during any such rulemaking that it is proposing the identified measure or rule for purposes of submission to the EPA consistent with its commitment in the Amended Valley Incentive Measure. 116 If, following an insufficiency finding by the EPA, CARB fails to adopt and submit substitute control measures that fully address the identified shortfall in required emission reductions by the relevant deadline, citizens may sue CARB for violating its SIP commitment.

For all of these reasons, we disagree with Earthjustice's claim that the Valley Incentive Measure fails to define any possible violation and is not practicably enforceable.

Comment 6: Earthjustice states that the implication of the rule is that the required emission reductions will come from the replacement of agricultural equipment but that nothing in the measure commits CARB to achieve any such replacements. Earthjustice claims that this rule is “a transparent attempt to undermine the entire framework of SIP enforceability” and that the measure is nothing more than “an open-ended commitment to figure out how to reduce emissions, with no actual enforceable commitment to action.” Earthjustice states that the purpose of the SIP program is to compel states to identify the specific, enforceable actions they will take to reduce emissions, and that it is not enough for the state to merely promise to reduce emissions somehow and offer that citizens can sue the state if it fails.

Response 6: We agree with Earthjustice's statement that the purpose of the SIP program is to compel states to identify specific, enforceable actions to reduce emissions, but we disagree with the claim that the Valley Incentive Measure is an “open-ended commitment” with no enforceable commitment to action.

As explained in Response 2 and Response 4, the Amended Valley Incentive Measure obligates CARB to (1) monitor District implementation of estimated numbers of incentive projects in accordance with specified portions of the relevant program criteria, (2) fulfill specific NO X and PM 2.5 tonnage commitments through implementation of the identified projects or through adoption and submission of substitute control measures, (3) submit to the EPA, each year from 2021 to 2025, an annual demonstration report that includes specific information about the projects funded through the previous year, (4) make each annual demonstration report publicly available and available upon request, (5) provide to the public, upon request, certain project-specific documents relied upon in the preparation of CARB's annual demonstration reports, including project applications, grant contracts, and inspection-related documents, and (6) adopt and submit substitute measures or rules by specific dates, if the EPA determines that information submitted by CARB is insufficient to demonstrate that the identified projects will fulfill the tonnage commitments. 117

Numerous courts interpreting citizen suit jurisdiction under section 304 of the CAA have held that suits can be brought to enforce “specific measures, strategies, or commitments designed to ensure compliance with the NAAQS,” though not to enforce the NAAQS directly. 118 As explained in Response 2 and Response 4, CARB's commitments constitute a specific enforceable strategy for achieving specific amounts of NO X and PM 2.5 reductions on a fixed schedule and, upon approval into the SIP, become requirements of an “applicable implementation plan” as defined in CAA section 302(q). Accordingly, these commitments are enforceable by citizens under CAA section 304(a)(1) and by the EPA under CAA section 113(a)(1).

We also disagree with Earthjustice's suggestion that CARB's commitments are unenforceable because CARB has not specifically committed to “achieve” or implement any replacements of agricultural equipment. As explained in Response 2 and Response 4, CARB's tonnage commitments must be met through implementation of one or both of the following types of measures: (1) Agricultural equipment replacement projects implemented in accordance with specified program criteria, and/or (2) substitute control measures adopted and submitted to the EPA by specified deadlines. 119 If CARB fails to achieve the specified amounts of NO X and PM 2.5 emission reductions by December 31, 2023, or December 31, 2024, through implementation of agricultural equipment replacement projects or substitute control measures, that failure would constitute a violation of the SIP commitment. See Response 2. The fact that CARB may meet its SIP commitments by adopting measures that are not specifically identified in the SIP, or through one of several available techniques, does not render the requirement to achieve the emissions reductions unenforceable. 120

Comment 7: Earthjustice states that the central obligation of this program is CARB's commitment to rectify shortfalls, but that this obligation is triggered only if the EPA makes a determination. Earthjustice asserts that, without some mechanism for forcing the EPA to make such a determination, citizens cannot enforce CARB's obligation. Furthermore, Earthjustice argues, even if the EPA were to make such a determination, there is no way for the EPA and citizens to prove that CARB had failed to rectify the shortfall because there is no explanation of what action CARB must take. According to Earthjustice, CARB need only point to “substitute measures or rules” but these do not need to be new measures, and “CARB can claim that other regulated sectors reduced emissions more than anticipated for whatever reason.”

Response 7: We agree with Earthjustice's statement that CARB's commitment to rectify shortfalls is dependent on an EPA determination but disagree with the claim that this obligation cannot be enforced by citizens. Additionally, to the extent Earthjustice intended to assert that an insufficiency determination by EPA is necessary to enable citizens to enforce the central obligation in CARB's commitment— i.e., the tonnage commitment—this assertion is incorrect.

As explained in Response 2 and Response 4, the Amended Valley Incentive Measure obligates CARB to (1) monitor District implementation of estimated numbers of incentive projects in accordance with specified portions of the relevant program criteria, (2) fulfill specific NO X and PM 2.5 tonnage commitments through implementation of the identified projects or through adoption and submission of substitute control measures, (3) submit to the EPA, each year from 2021 to 2025, an annual demonstration report that includes specific information about the projects funded through the previous year, (4) make each annual demonstration report publicly available and available upon request, (5) provide to the public, upon request, certain project-specific documents relied upon in the preparation of CARB's annual demonstration reports, including project applications, grant contracts, and inspection-related documents, and (6) adopt and submit substitute measures or rules by specific dates, if the EPA determines that information submitted by CARB is insufficient to demonstrate that the identified projects will fulfill the tonnage commitments. 121 The central obligation in these commitments is to fulfill specific NO X and PM 2.5 tonnage commitments on a fixed schedule, and the other components of the commitments are designed to ensure that the EPA and citizens can hold CARB responsible for achieving these emission reductions by the specified dates.

Earthjustice correctly notes that the commitment to rectify shortfalls (in paragraphs A.5 and A.6 of CARB Resolution 19-26) is triggered only if the EPA determines that information submitted by CARB is insufficient to demonstrate that the identified projects will fulfill the tonnage commitments. Earthjustice incorrectly claims, however, that there is no way for the EPA or citizens to prove that CARB had failed to rectify a shortfall identified by the EPA because there is no explanation of what action CARB must take. As explained in Response 2 and Response 5, if the EPA determines by August 1, 2022, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2024 tonnage commitments will occur on schedule, CARB must adopt and submit to the EPA, no later than September 1, 2023, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2024. 122 Likewise, if the EPA determines by August 1, 2023, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2025 tonnage commitments will occur on schedule, CARB must adopt and submit to the EPA, no later than September 1, 2024, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2024. 123

Contrary to Earthjustice's assertion, CARB cannot satisfy this commitment by simply claiming “that other regulated sectors reduced emissions more than anticipated for whatever reason.” By its terms, the commitment is to “adopt and submit to U.S. EPA . . . substitute measures or rules”— i.e., new or revised prohibitory control measures—that achieve the necessary emission reductions by the specified deadline. Any such substitute control measure must be adopted following state rulemaking procedures through which the EPA and the public may track the State's progress in achieving the requisite emissions reductions. 124 We expect that CARB will make clear during any such rulemaking that it is proposing the identified measure or rule for purposes of submission to the EPA consistent with its commitment in the Amended Valley Incentive Measure. 125 If, following an insufficiency finding by the EPA, CARB fails to adopt and submit prohibitory control measures that fully address the identified shortfall in required emission reductions by the relevant deadline, citizens may sue CARB for violating its SIP commitment.

Even if the EPA does not make an insufficiency finding, citizens may independently enforce the tonnage commitments against CARB by reviewing CARB's annual demonstration reports. As explained in Response 5, the Amended Valley Incentive Measure obligates CARB to provide, in each annual demonstration report submitted to the EPA from May 2021 through May 2025, detailed information about each incentive project that CARB is relying on to achieve the necessary emission reductions, including descriptions of both the old (replaced) and new equipment sufficient to independently calculate emission reductions. 126 Each of these annual demonstration reports must be readily available to the public on CARB's website upon submission to the EPA and remain available through December 31, 2030. 127 If CARB's 2024 annual demonstration report (which is due May 15, 2024) fails to demonstrate that the identified projects have achieved 4.83 tpd of NO X emission reductions and 0.24 tpd of PM 2.5 emission reductions from the 2024 baseline inventory in the 2018 PM 2.5 Plan, and CARB has not submitted substitute control measures to address the shortfall, citizens may sue CARB for violating its SIP commitment. Likewise, if CARB's 2025 annual demonstration report (due May 15, 2025) fails to demonstrate that the identified projects have achieved 4.46 tpd of NO X emission reductions and 0.26 tpd of PM 2.5 emission reductions from the 2025 baseline inventory in the 2018 PM 2.5 Plan, and CARB has not submitted substitute control measures to address the shortfall, citizens may sue CARB for violating its SIP commitment. Thus, the tonnage commitments remain enforceable even if the EPA has not made an insufficiency finding in accordance with paragraph A.5 or A.6 of CARB Resolution 19-26. See Response 9.

Comment 8: Earthjustice states that CARB's obligation to “provide publicly available annual demonstration reports” is a “throw away requirement.” According to Earthjustice, while it might be possible to show that CARB did not provide a report, the contents of the report are so vague that any document would likely pass muster. Earthjustice asserts that although the State must monitor compliance and project whether projects will achieve reductions on time, there are no consequences, for example, if CARB finds noncompliance is rampant or there is no possibility that projects will achieve emission reductions on time.

Response 8: We disagree with Earthjustice's assertion that the annual demonstration reports are “throw away” requirements and that “the contents of the report are so vague that any document would likely pass muster.” As discussed in Response 4, the Amended Valley Incentive Measure obligates CARB to include the following information in each annual demonstration report that it submits to the EPA by May 15 of each year from 2021 through 2025: (1) Specific information about the projects funded through the previous calendar year that CARB is relying on to fulfill the tonnage commitment;  128 (2) a description of any changes to the applicable guidelines and related impacts on program integrity; (3) a description of CARB's and the District's actions to monitor selected Carl Moyer and FARMER projects for compliance with contract requirements; and (4) a determination of whether the identified projects are projected to fulfill the NO X and PM 2.5 tonnage commitments in the San Joaquin Valley by the relevant deadlines. 129 CARB's supporting analysis in the Demonstration further describes the project-specific information for Carl Moyer and FARMER projects that CARB intends to include in each annual demonstration report including, among other things, the project life, post-inspection date, 130 vehicle identification number (VIN), equipment serial number, activity information ( i.e., annual hours of operation), percentage of operations occurring in California and in the San Joaquin Valley area, equipment and engine make and model, engine horsepower and tier, vehicle fuel type, and engine emission level ( i.e., emission factor). 131

These provisions ensure that CARB's annual demonstration reports will contain both the project-specific information needed to independently calculate the emission reductions that CARB attributes to each project and the programmatic information needed to determine whether CARB and the District are taking appropriate steps to ensure that the identified projects comply with the applicable program criteria. If CARB's annual demonstration report for a given year fails to provide any of the information described in paragraphs A.3, B.2, or D.2 of CARB Resolution 19-26, as amended by the Technical Corrections Document, the EPA or citizens may bring an enforcement action against CARB for violating its reporting obligations. See Response 4.

We also disagree with Earthjustice's comments about CARB's monitoring obligations in the Valley Incentive Measure and its claim that there are no consequences if CARB finds that noncompliance is rampant or that the identified projects cannot achieve emission reductions on time. As we explained in Response 4, CARB is obligated to monitor the District's implementation of estimated numbers of incentive projects in accordance with specified portions of the relevant program criteria for purposes of determining whether those projects will fulfill specific NO X and PM 2.5 tonnage commitments by 2024 and 2025. Additionally, CARB must report annually on the actions that both CARB and the District have taken to monitor Carl Moyer and FARMER projects for compliance with contract requirements. If the EPA determines that information submitted by CARB is insufficient to demonstrate that it will fulfill a particular tonnage commitment on schedule, CARB must adopt and submit substitute measures to the EPA that address any shortfall in emission reductions by specified dates. For example, if the EPA finds, during its review of the annual demonstration reports for 2021 and 2022, that a substantial number of identified projects have not complied with contract terms, or that the total number of projects is insufficient to ensure that CARB will meet its NO X and PM 2.5 tonnage commitments by December 31, 2023, the EPA would make an insufficiency finding and thus trigger CARB's obligation to adopt and submit substitute control measures. If, following such an insufficiency finding by the EPA, CARB fails to adopt and submit substitute control measures that fully address the identified shortfall in required emission reductions by the relevant deadline, both the EPA and citizens may sue CARB for violating its SIP commitment. See Response 2. Any insufficiency finding that the EPA makes would be available to the public upon request and available on the EPA's website at https://www.epa.gov/sips-ca .

Even if the EPA does not make an insufficiency finding, citizens may verify whether CARB has met the tonnage commitment by independently reviewing CARB's annual demonstration reports, and thereby enforce the tonnage commitment directly. As explained in Response 5, the Amended Valley Incentive Measure obligates CARB to provide detailed information in each annual demonstration report and to make each of these reports readily available to the public on CARB's website or available upon request. If CARB's 2024 annual demonstration report (which is due May 15, 2024) fails to demonstrate that the identified projects have achieved 4.83 tpd of NO X emission reductions and 0.24 tpd of PM 2.5 emission reductions from the 2024 baseline inventory in the 2018 PM 2.5 Plan, and CARB has not submitted substitute control measures to address the shortfall, citizens may sue CARB for violating its SIP commitment. For example, if citizens find, upon review of the 2024 annual demonstration report and related project documents, that emission reductions have not occurred because a substantial number of identified projects have not complied with contract terms, or that the total number of projects is insufficient to meet CARB's NO X and PM 2.5 tonnage commitments by December 31, 2023, citizens may sue CARB for violating its SIP commitment. See Response 5.

All Carl Moyer and FARMER projects are subject to detailed contract provisions that must, among other things, specify the repercussions for noncompliance with contract requirements. 132 Under the 2011 and 2017 Carl Moyer Guidelines, each project contract must include: (1) The name and contact information of the grantee; (2) specified timeframes for “project completion” (the date the project “post-inspection” confirms that the project has become operational) and “project implementation” (the project life used in the project cost-effectiveness calculation); (3) detailed information on both baseline and new equipment, including documentation adequate to establish historical annual usage; (4) requirements for the grantee to maintain the equipment according to the manufacturer's specifications for the life of the project; (5) annual reporting requirements; (6) a provision authorizing the District, CARB, and their designees to conduct fiscal audits and to inspect the equipment and associated records during the contract term; (7) requirements to maintain and retain project records for at least three years after contract expiration; (8) repercussions for noncompliance; and (9) a statement that CARB is authorized to enforce the terms of the contract at any time during the contract term to ensure that emission reductions are obtained. 133 These project contracts, in addition to other project-specific records, will be available to the public upon request beginning May 15, 2021, and through 2029, 134 thereby enabling the public to verify the project-specific information provided in CARB's annual demonstration reports.

Additionally, both CARB and the District are authorized to “seek any remedies available under the law for noncompliance with Carl Moyer program requirements and nonperformance with the contract,” including cancelling the contract and recapturing program funds. 135 Should CARB determine that the District's oversight and enforcement of the program is insufficient, CARB may also recapture funds granted to the District that have not yet been awarded to approved projects. 136

These provisions of the 2011 and 2017 Carl Moyer Guidelines, together with CARB's commitments in the Amended Valley Incentive Measure, enable the EPA and the public to independently verify the emission reductions attributed to each incentive project that CARB has identified in its annual demonstration reports to demonstrate compliance with the tonnage commitment. For all of these reasons, we disagree with Earthjustice's claim that CARB's reporting obligations in the Valley Incentive Measure are insufficient to ensure that emission reductions will occur in a timely manner.

Comment 9: Earthjustice asserts that the absence of defined violations makes independent verification impossible, and that although CARB says it is “monitoring” implementation, neither the EPA nor citizens can independently verify or prove otherwise. Earthjustice claims that an even more fundamental problem around verification is that the emission reductions to be achieved, in theory, will come from projects under the Carl Moyer and FARMER programs that neither the EPA nor citizens can independently verify, and from the NRCS program that no one other than NRCS can verify. Earthjustice states that measures that preclude verification and enforcement by the EPA and citizens do not meet the enforceability requirements of the Act.

Response 9: We disagree with Earthjustice's claim that neither the EPA nor citizens can independently verify whether CARB is monitoring implementation of the identified incentive projects. CARB's commitment to monitor District implementation of projects in accordance with the 2011 and 2017 Carl Moyer Guidelines is enforceable through specific reporting provisions in the Amended Valley Incentive Measure that require CARB to report annually on, among other things, the incentive projects it is relying on to achieve emission reductions and the actions that CARB and the District have taken to ensure that these projects comply with the contracts issued in accordance with the applicable Carl Moyer Guidelines. See Response 2 and Response 4.

We also disagree with Earthjustice's assertion that projects relied on in the Valley Incentive Measure cannot be independently verified by the EPA or the public. As explained in Response 4 and Response 8, the Amended Valley Incentive Measure obligates CARB to provide, in each annual demonstration report, detailed information about each incentive project funded through the previous year that CARB is relying on to achieve the required NO X and PM 2.5 emission reductions, including descriptions of both baseline and new equipment sufficient to independently calculate emission reductions. 137 Consistent with these obligations, CARB has submitted an Excel spreadsheet populated with detailed project-specific information for both baseline and new equipment sufficient to independently calculate emission reductions for all Carl Moyer and FARMER projects completed as of July 26, 2019, which we refer to as “Detailed Spreadsheet HJ.”  138 We explain below how the emission reductions for each project may be independently verified, based on the project data provided in Detailed Spreadsheet HJ and the quantification methodologies provided in the 2011 and 2017 Carl Moyer Guidelines.

For Carl Moyer and FARMER projects, the accuracy of the project data provided in each annual demonstration report may be verified through independent review of specific documents that grantees and the District must maintain in accordance with the Carl Moyer Guidelines, all of which will be available for public review in accordance with paragraphs B.5 and D.5 of CARB Resolution 19-26. 139 First, actions required of grantees under the 2011 and 2017 Carl Moyer Guidelines are independently verifiable through (1) pre-project and post-project on-site inspections (with photographic documentation) that the District and/or CARB must carry out pursuant to the applicable guidelines, and (2) documents that each grantee is required to maintain and/or submit to the District in accordance with detailed contract provisions.

For example, the 2017 Carl Moyer Guidelines require, among other things, that (1) all project applications include documentation of existing engine usage in previous years ( e.g., miles traveled, hours operated, or fuel consumed per year); (2) that the District conduct a “pre-inspection” of each application deemed eligible for funding, to verify information regarding the baseline equipment; (3) that the District conduct a “post-inspection” of each funded project to verify destruction of the baseline engine through photographic or video evidence, and record, among other things, information regarding the new equipment as needed to provide a basis for emission calculations and to ensure contract enforceability; and (4) that the District's project files include all required “pre-inspection” and “post-inspection” documentation, including photographic documentation of the engine, vehicle, or equipment information ( e.g., a legible serial number and/or other identifying markings) and photographic evidence of the scrapped or destroyed engine. 140

Second, the 2017 Carl Moyer Guidelines specifically define the required elements of each contract and the types of actions that constitute violations of such contracts. Specifically, each project contract must include: (1) The name and contact information of the grantee; (2) specified timeframes for “project completion” and “project implementation”; (3) detailed information on baseline and new equipment, including documentation adequate to establish historical annual usage; (4) requirements for equipment maintenance; (5) annual reporting requirements; (6) authorization for the District, CARB, and their designees to conduct fiscal audits and equipment and associated records inspection; (7) requirements to retain project records after contract expiration; and (8) repercussions for contract noncompliance, including cancellation of the contract and recapture of program funds. 141 See Response 8.

Third, the 2017 Carl Moyer Guidelines require that all grantees submit specific types of project records to the District and also require the District to maintain such records for specified periods of time. Specifically, each contract executed by the District must require the grantee to maintain project records for at least three years after contract expiration, and to submit annual or biennial reports to the District. Additionally, the District must keep each “project file” for a minimum of three years after the end of the contract term. A “project file” generally includes a copy of the application, the contract, a completed pre- and post-inspection form, photographs of the destroyed engine, and the annual reports submitted by the grantee. 142

These requirements of the 2017 Carl Moyer Guidelines, which are substantively identical to similar provisions in the 2011 Carl Moyer Guidelines, ensure that the District will maintain project-specific documents sufficient for the EPA and the public to verify the accuracy of CARB's emission reduction calculations for the Carl Moyer and FARMER projects listed in each annual demonstration report. Specifically, the EPA and the public may verify CARB's emission reduction calculations not only by independently calculating project-specific emission reductions using the quantification methodologies provided in the 2017 Carl Moyer Guidelines and the project data provided in the annual demonstration report, but also by confirming the accuracy of the project data provided in CARB's annual demonstration reports, through independent review of the project-specific documents that the District must maintain under the 2011 and 2017 Carl Moyer Guidelines ( e.g., the project contract and associated pre-inspection and post-inspection documentation). All of these project-specific documents will be available for public review in accordance with paragraphs B.5 and D.5 of CARB Resolution 19-26. 143 Accordingly, the EPA and citizens can obtain the information necessary to quantify and verify the emission reductions that CARB attributes to Carl Moyer and FARMER projects to fulfill the tonnage commitments in the Amended Valley Incentive Measure.

To demonstrate how the public can quantify and verify the emission reductions identified in each annual demonstration report, we randomly selected three of the projects listed in Appendix H and Appendix J of the Demonstration  144 and independently calculated the emission reductions for these projects based on the data inputs provided in Detailed Spreadsheet HJ and the relevant quantification methodologies in the 2011 and 2017 Carl Moyer Guidelines. The projects that we randomly selected from Appendix H and Appendix J of the Demonstration are identified in Table 1.

We independently calculated the emission reductions for the selected projects using the data inputs included in Detailed Spreadsheet HJ and provided our analysis in a memorandum to file dated February 27, 2021, which we refer to as the “EPA Calculation Memo.”  145 Our calculations replicated the emission reductions as reported by CARB for all three projects.

Although we calculated emission reductions for only three randomly selected projects from Appendix H and Appendix J, the availability of the project information in Excel format allows for the verification of emission reductions from all projects relied on in the Amended Valley Incentive Measure in a fraction of the time it would take to perform manual calculations. Use of Excel to perform these emission reduction calculations becomes especially advantageous (in lieu of manual calculation) as the number of implemented projects increases each year. The EPA Calculation Memo provides more information on how to use Excel to calculate emission reductions from these projects. 146

Additionally, at our request, CARB submitted project-specific documents, including the project application, baseline engine usage records, grant contract, documentation of destruction, and pre- and post-inspection photographs, for two of the projects listed in Table 1 (Carl Moyer project number C-27026-1A and FARMER project number C-60539-1-A1). 147 We reviewed the information contained in these project records and confirmed that it is generally consistent with the information provided in Detailed Spreadsheet HJ for these two projects. 148

In sum, the EPA and the public can verify the emission reductions that CARB has attributed to each Carl Moyer and FARMER project it is relying on to achieve the NO X and PM 2.5 tonnage commitment in the Amended Valley Incentive Measure by doing the following: (1) For each project identified in an annual demonstration report (or for a random selection of such projects), reviewing the project-specific documents that CARB must provide upon request, to verify the accuracy of the project data provided in CARB's annual demonstration report, and (2) independently calculating the emission reductions for each project identified in the annual demonstration report (or for a random selection of such projects), based on the relevant project data ( e.g., annual hours of operation, baseline and new engine model year, engine tier, horsepower, and project life) and the applicable quantification methodologies in the 2011 and 2017 Carl Moyer Guidelines. Thus, CARB's commitments concerning the annual demonstration reports and related project documents, together with detailed inspection, recordkeeping and reporting requirements in the 2011 and 2017 Carl Moyer Guidelines, enable the EPA and the public to verify the emission reductions achieved by each project that CARB is relying on to fulfill its tonnage commitment in the Amended Valley Incentive Measure.

Comment 10: Earthjustice asserts that the goal of the rule is to remove the requirement for enforceability against the actual sources by making CARB responsible for the emission reductions. According to Earthjustice, the EPA appears to admit that the actual emissions reductions achieved through these various incentives do not satisfy the Act's criteria for enforceability but claim that the defect can be “cured by inventing an umbrella commitment for CARB to fill any shortfall.” Earthjustice claims that the “commitment to make up the difference, however, does not in fact cure the unenforceability of the reductions credit[ed] toward that commitment,” and that the emission reductions that CARB commits to achieve are measured only by CARB and the District (and NRCS), and cannot be verified by anyone else. Earthjustice states that if CARB claims that it has satisfied its 5.9 tpd commitment because the incentive programs worked, there is no way for the EPA or others to confirm that this is true. Earthjustice states that the EPA and citizens cannot compel the grant recipients to support the data submitted to CARB, the District, or NRCS, and that the EPA and citizens must trust that these agencies have done their due diligence in verifying the data themselves—a task that Earthjustice claims is not really in the interest of these agencies because they do not want to be on the hook for making up any shortfall. Likewise, according to Earthjustice, if CARB claims that its substitute measures reduce emissions by whatever the shortfall, there is nothing in the rule that ensures anyone else could verify that claim.

Response 10: We disagree with the commenter's assertion that the emission reductions committed to by CARB cannot be verified by anyone other than CARB and the District. As explained in Response 2 and Response 4, CARB has committed to submit annual demonstration reports containing detailed project data that enables the public and the EPA to independently calculate the emission reductions from each identified project. Additionally, the 2011 and 2017 Carl Moyer Guidelines  149 require that grantees submit, and that the District maintain, project documents sufficient for the EPA and the public to verify the accuracy of the project data provided in CARB's annual demonstration reports ( e.g., the project contract and associated pre-inspection and post-inspection documentation). See Response 9.

Although we agree with the commenter that neither the EPA nor the public can compel grantees to provide additional data or documentation, the 2011 and 2017 Carl Moyer Guidelines include a number of requirements to ensure that project-specific information is supported by the grantee with additional documentation, and that equipment-specific information supplied by the grantee is verified by the implementing agency (in this case, the SJVUAPCD). For example, the 2017 Carl Moyer Guidelines require that old equipment be inspected by the implementing agency with corresponding written and photographic documentation, confirming (1) that the equipment is in usable condition, and (2) that the equipment-specific information provided by the grantee such as the make, model, horsepower, and usage meter reading (referred to as a “pre-inspection”) is correct. 150 The 2017 Carl Moyer Guidelines also require that new equipment be inspected after purchase and contract execution to confirm the equipment's make, model, horsepower, and usage meter reading, with corresponding written and photographic documentation (referred to as a “post-inspection”). 151 District staff or an approved salvage yard must take photographs of the destroyed engine and, if a salvage yard verifies engine destruction, the salvage yard must provide that documentation to the air district within ten business days of dismantling the equipment. 152 The implementing agency must include these photographs in the project file. 153 Additionally, the 2017 Carl Moyer Guidelines require grantees to submit documentation that establishes historical annual usage of the old equipment and confirms ownership for the past two years. 154 Contract provisions require grantees to submit annual reports that include annual usage, and time operated in California, for the new equipment until contract expiration. 155 As explained in Response 9, the public has access to all underlying documentation for each Carl Moyer project in accordance with paragraphs B.5 and D.5 of CARB Resolution 19-26. 156 We therefore disagree with Earthjustice's claim that the EPA and the public must “trust that these agencies have done their due diligence in verifying the data themselves.”

We also disagree with the commenter's assertion that there is no way to verify the emission reductions achieved by the substitute measures that CARB must adopt if the EPA projects an emission reduction shortfall. Specifically, as explained in Response 2 and Response 5, if the EPA determines by August 1, 2022, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2024 tonnage commitments will occur on schedule, CARB must adopt and submit to the EPA, no later than September 1, 2023, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2024. 157 Likewise, if the EPA determines by August 1, 2023, that information submitted by CARB is insufficient to demonstrate that the emission reductions necessary to fulfill the 2025 tonnage commitments will occur on schedule, CARB must adopt and submit to the EPA, no later than September 1, 2024, substitute measures or rules that will achieve emission reductions addressing the shortfall as expeditiously as practicable and no later than January 1, 2025. 158 Any such substitute control measure must be adopted following state rulemaking procedures through which the EPA and the public may track the State's progress in achieving the requisite emissions reductions and comment on the State's emission reduction analyses. We expect CARB to make clear during any such rulemaking that it is proposing the identified measure or rule for purposes of submission to the EPA consistent with its commitment in the Amended Valley Incentive Measure. 159 If, following an insufficiency finding by the EPA, CARB fails to adopt and submit prohibitory control measures that fully address the identified shortfall in required emission reductions by the relevant deadline, citizens may sue CARB for violating its SIP commitment.

Comment 11: Earthjustice asserts that the EPA's approach “separates the emission reduction obligation from the emitter and makes the (theoretically) liable party in charge of determining compliance.” Earthjustice claims that neither the EPA nor citizens can independently verify compliance with the emission reduction commitment and that CARB is given the ability to deem itself in compliance with no possibility for others to challenge that determination.

Response 11: For the reasons provided in Response 2 through Response 10, we disagree with these claims.

Comment 12: Earthjustice states that the absence of defined violations is most apparent when trying to describe what penalties could be assessed or what corrective action could be compelled by a court. For example, Earthjustice asks, if CARB were found in violation of the 5.9 tpd commitment, would CARB be subject to daily penalties under CAA section 113 until it achieved that reduction, or could it be compelled to adopt some replacement measure by the court? Earthjustice also asks how such a suit in equity would be handled under the Eleventh Amendment to the Constitution; whether the commitment to rectify the shortfalls upon an EPA determination negates any such court intervention; and whether the EPA is the arbiter of whether the substitute measures are adequate. If so, Earthjustice asserts, there is effectively no penalty for violating the 5.9 tpd commitment, and the only recourse is to repeatedly challenge the EPA for arbitrarily letting CARB and the District fail to clean the air, which is not subject to remedies under CAA section 113. Earthjustice further asks what the penalty is for failing to monitor implementation or for inadequate reporting, and how a court would determine days of violations. According to Earthjustice, these are not practicably enforceable commitments because the violations are not actually defined. Earthjustice claims that the EPA cannot explain exactly how a violation of these various commitments could be proven and enforced, and what the judicial remedy would be for citizens bringing an enforcement action. According to Earthjustice, this is why no one has ever been able to enforce similar state emission reduction commitments in the past.

Response 12: We disagree with Earthjustice's claim that “there is effectively no penalty for violating the 5.9 tpd commitment” and that the only recourse for such a violation is for the public to “repeatedly challenge the EPA for arbitrarily letting CARB and the District fail to clean the air, which is not subject to remedies under CAA section 113.” As explained in Response 2 and Response 5, CARB's commitments constitute a specific enforceable strategy for achieving specific amounts of NO X and PM 2.5 emission reductions on a fixed schedule and, upon approval into the SIP, become requirements of an “applicable implementation plan” as defined in CAA section 302(q). Accordingly, these commitments are enforceable by citizens under CAA section 304(a)(1) and by the EPA under CAA section 113(a)(1). CARB has also clearly expressed its decision to voluntarily commit itself to fulfilling the tonnage commitment and to being held accountable for failure to fulfill this commitment. 160

The EPA has approved enforceable SIP commitments in the past and courts have enforced these commitments against states that failed to comply with them. 161 As the Second Circuit has stated, “a plan, once adopted by a state and approved by the EPA, becomes controlling and must be carried out by the state,” and the U.S. district courts are “obligated, upon a showing that the state has violated the plan, to issue appropriate orders for its enforcement.”  162

Several district courts have, in response to citizen suits brought under CAA section 304(a), issued orders to enforce SIP-approved commitments by states to adopt and implement specific types of control measures. In American Lung Ass'n of N.J. v. Kean, 670 F. Supp. 1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989), the court found New Jersey liable for failure to comply with SIP-approved commitments to implement seven specific ozone-control strategies identified in the submitted plan. Rejecting New Jersey's argument that its SIP compelled it only to study the feasibility of the seven strategies and to implement only those strategies that it found feasible, the court concluded that the text of the SIP “manifests an intention on the part of New Jersey to commit itself to the schedule” that plaintiffs alleged New Jersey had violated— i.e., a schedule for proposing regulations, promulgating final regulations, and implementing those final regulations through proper enforcement. 163 The court granted plaintiff's motion for partial summary judgment on the issue of New Jersey's liability under the CAA for failure to comply with its SIP and ordered the parties to submit proposed timetables for New Jersey's compliance with its SIP. In the second phase of trial, the court adopted New Jersey's proposed schedule for promulgation and implementation of regulations, which had been approved by the EPA and plaintiffs. 164 On appeal brought by petroleum industry trade associations, the Court of Appeals for the Third Circuit affirmed the district court's order. 165

In Natural Resources Defense Council, Inc. v. N.Y. State Dept. of Env. Cons., 668 F. Supp. 848 (S.D.N.Y. 1987), the court held that New York had violated its SIP-approved commitments to study and implement specific strategies for reducing volatile organic compound (VOC) emissions from four major source categories. Rejecting New York's arguments that summary judgment on liability would be inappropriate because of its reasonable efforts to implement the SIP, unavoidable technical difficulties, and the failure of other state and federal environmental agencies that share implementation responsibilities to take timely action, the court found that “[t]he very fact that the New York SIP has been violated mandates a finding of liability, regardless of the reasons for the violation.”  166 The court granted plaintiff's motion for partial summary judgment on the issue of New York's liability under the CAA for failure to comply with its SIP and, following the parties' submissions of proposed implementation schedules, issued a detailed scheduling order including specific deadlines for New York to complete studies, propose and adopt regulations, and require full compliance with the adopted regulations for each of the four VOC source categories. 167

In Coalition for Clean Air v. South Coast Air Quality Mgt. Dist., No. CV 97-6916-HLH (C.D. Cal. Aug. 27, 1999), the court held that the South Coast Air Quality Management District (SCAQMD) had violated its SIP-approved commitments by failing to adopt and implement 31 of 32 control measures identified in its ozone SIP. The SCAQMD provided numerous reasons for its failure to adopt and implement these measures, including its review of updated emission inventories showing that the emission of some source categories were drastically lower than the SIP had assumed, the unavailability of technologies that the SCAQMD had previously assumed would be developed, and the excessive costs of certain measures compared with the pollution to be reduced. The court rejected these arguments, finding that “[o]nce liability is established, the District Court is required by the Act to issue an injunction to compel compliance with the SIP” and that “[m]istakes or failures in factual assumptions must be considered by the EPA, not by the Court, whose duty it is to enforce the SIP as written.”  168 The court issued an injunction establishing specific deadlines for the SCAQMD to adopt and implement the 31 control measures.

Thus, if a district court found CARB in violation of the 4.83 tpd NO X emission reduction commitment for 2024, the holdings in the cases cited above suggest that a district court would be required to issue appropriate orders for its enforcement, such as an order compelling CARB to adopt one or more enforceable measures that achieve 4.83 tpd of NO X emission reductions by a date certain. Upon CARB's adoption and submission of any such substitute measures, the EPA would determine, through notice-and-comment rulemaking, whether the measure is sufficient to achieve the necessary emission reductions.

Earthjustice asks the EPA to explain how a suit in equity would be handled under the Eleventh Amendment to the Constitution but fails to articulate a basis for finding the commitments in the Valley Incentive Measure problematic or difficult to enforce on constitutional grounds. Although the Eleventh Amendment generally grants immunity to states from suit for money damages or equitable relief without their consent, it does not grant states immunity from suit for injunctive relief ( i.e., to prevent future violations of federally-mandated SIP requirements) where the state itself has submitted SIP commitments and thereby consented to enforcement in federal court. As stated in NRDC, the district courts have authority under the CAA to enforce SIP provisions, and “[i]t cannot be argued” that “an order implementing [a SIP control strategy] as promptly as possible would impinge on an area of state sovereignty.”  169 Similarly, in Friends of the Earth v. Carey, the Second Circuit rejected New York City's claims of state sovereign immunity from suit in federal court and found that the City's decision “voluntarily to commit itself to enforcement of the Plan” constituted a waiver of such immunity. 170 The court noted that, in the context of a citizen suit to enforce the provisions of the SIP, “the choices and procedures are the products of State choice, not of federal policy, and may legitimately be enforced by the district court.”  171

Comment 13: Earthjustice states that the EPA's proposed approach creates a new type of “black box” for national ambient air quality standards (NAAQS) other than ozone and without the conditions required under CAA section 182(e)(5). Earthjustice asserts that, “[l]ike the black box, CARB and the District are now allowed to promise to reduce emissions without actually making any enforceable commitment as to how,” but that “unlike the black box, which at least requires actual contingency measures to be adopted and in place years before the compliance date, there are no actual backstops in place to make up for a shortfall.” Earthjustice asserts that the EPA must explain why Congress would have allowed such an approach after clearly providing only limited flexibility in section 182(e)(5), and only allowing such flexibility for long-term plans related to ozone.

Response 13: We disagree with Earthjustice's suggestion that our proposed approach to approving the Valley Incentive Measure (or portions thereof) for SIP credit “creates a new type of `black box' ” that is inconsistent with congressional intent. Section 182(e)(5) of the CAA allows the EPA to approve plan provisions that “anticipate development of new control techniques or improvement of existing control technologies”— i.e., control measures yet to be defined—for ozone nonattainment areas classified as “extreme” under subpart 2 of part D, title I of the Act. This provision is often referred to as the “black box” or “new technology” provision of the Act.

Unlike the new technology provisions that the EPA has approved in attainment plans for extreme ozone nonattainment areas, 172 the Amended Valley Incentive Measure is not a provision that anticipates the development, adoption, and implementation of control measures yet to be defined. As explained in Response 2 and Response 4, CARB's commitments in the Amended Valley Incentive Measure constitute a specific enforceable strategy for achieving specific amounts of NO X and PM 2.5 emission reductions in the San Joaquin Valley, either through implementation of agricultural equipment replacement projects subject to specific portions of the 2011 or 2017 Carl Moyer Guidelines or through substitute measures adopted and submitted in accordance with specified deadlines. 173 The measure obligates CARB to monitor and report annually on the implementation of estimated numbers of such incentive projects and to adopt and submit substitute control measures on a fixed schedule, if the EPA determines that information submitted by CARB in the annual demonstration reports is insufficient to demonstrate that the identified incentive projects will fulfill the tonnage commitment. 174

For these reasons, we also disagree with Earthjustice's claim that the Valley Incentive Measure allows CARB and the District “to promise to reduce emissions without actually making any enforceable commitment as to how” and without providing for any “backstops” to make up for a shortfall in required emission reductions. See Response 2 and Response 4.

Comment 14: Earthjustice states that there is no reason that these equipment replacements cannot be required by regulation, and that cleaner equipment clearly exists. Earthjustice claims that the only policy issue appears to be who should pay for these replacements, but that nothing stops the agencies from mandating these replacements and providing financial support for compliance. Earthjustice states that the replacements would then become enforceable regulatory requirements and the state and federal agencies could continue to subsidize the agricultural industry as they always have. According to Earthjustice, this would ensure that the emission reductions would occur regardless of future funding and is consistent with the requirements of the Act. Earthjustice urges the EPA to disapprove the Valley Incentive Measure as failing to comply with the Act's basic SIP requirements and to direct CARB and the District to explore enforceable replacement mandates.

Response 14: Under the Clean Air Act, the EPA is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 175 Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. These comments are more appropriately directed to CARB during its rulemaking processes on incentive-based measures.

The EPA is partially approving the Valley Incentive Measure, as amended and clarified by the Technical Corrections Document and the 2021 Clarification Document, into the California SIP in accordance with section 110(k)(3) of the Act. Specifically, the EPA is approving those portions of the Valley Incentive Measure, as amended and clarified, that pertain to incentive projects implemented under California's Carl Moyer Program and FARMER Program, based on our conclusion that these portions of the measure satisfy CAA requirements for SIP approval. Upon our approval of these portions of the Valley Incentive Measure into the SIP, they become enforceable under the CAA and creditable for SIP purposes. The EPA is deferring action on the remaining portions of the Valley Incentive Measure.

In addition, the EPA is determining that CARB's adoption, implementation, and submission of the Valley Incentive Measure satisfies the State's commitment in the SJV PM 2.5 Plan to bring to the Board for consideration an incentive-based measure for off-road diesel agricultural equipment and achieves 4.83 tpd and 0.24 tpd of the State's 2024 NO X and PM 2.5 emission reduction commitments, respectively, as codified in 40 CFR 52.220(c)(536)(ii)(A)( 2 ).

We are codifying the approved portions of this measure as additional material in the Code of Federal Regulations, rather than through incorporation by reference, because, under its terms, the measure contains commitments enforceable only against CARB and because the measure is not a substantive rule of general applicability.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 25, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2))

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On September 28, 2021, the EPA published a notice of proposed rulemaking (NPRM or “proposed rule”) for the State of Hawaii. 1 We proposed approval of the Hawaii SIP revision that addresses the CAA requirement prohibiting emissions from one state in amounts which significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state. The Hawaii Department of Health (HDOH) submitted its good neighbor SIP revision for the 2015 ozone NAAQS by letter dated November 12, 2019. 2

We proposed to find that Hawaii would not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state. The rationale for EPA's proposed rule is provided in the NPRM.

Our September 28, 2021 proposed rule provided a 30-day public comment period that closed on October 28, 2021. We received no adverse comments. One anonymous commenter supported the proposed action.

The EPA is approving, as a revision to the Hawaii SIP, HDOH's good neighbor SIP revision submitted on November 12, 2019. This revision is approved as meeting CAA section 110(a)(2)(D)(i)(I) requirements that emissions from each state do not contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 25, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

This final rule requires certain public water systems (PWSs), described in section I.A.2 of this preamble, to collect national occurrence data for 29 PFAS and lithium. PFAS and lithium are not currently subject to national primary drinking water regulations, and EPA is requiring collection of data under UCMR 5 to inform EPA regulatory determinations and risk-management decisions. Consistent with EPA's PFAS Strategic Roadmap, UCMR 5 will provide new data critically needed to improve EPA's understanding of the frequency that 29 PFAS (and lithium) are found in the nation's drinking water systems and at what levels. This data will ensure science-based decision-making and help prioritize protection of disadvantaged communities.

This final rule applies to PWSs described in this section. PWSs are systems that provide water for human consumption through pipes, or constructed conveyances, to at least 15 service connections or that regularly serve an average of at least 25 individuals daily at least 60 days out of the year. A community water system (CWS) is a PWS that has at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. A non-transient non-community water system (NTNCWS) is a PWS that is not a CWS and that regularly serves at least 25 of the same people over 6 months per year. Under this final rule, all large CWSs and NTNCWSs serving more than 10,000 people are required to monitor. In addition, small CWSs and NTNCWSs serving between 3,300 and 10,000 people are required to monitor (subject to available EPA appropriations and EPA notification of such requirement) as are the PWSs included in a nationally representative sample of CWSs and NTNCWSs serving between 25 and 3,299 people (see “Selection of Nationally Representative Public Water Systems for the Unregulated Contaminant Monitoring Rule: 2021 Update” for a description of the statistical approach for EPA's selection of the nationally representative sample (USEPA, 2021a), available in the UCMR 5 public docket). EPA expects to clarify the monitoring responsibilities for affected small systems by approximately July 1 of each year preceding sample collection, based on the availability of appropriations each year.

As in previous UCMRs, transient non-community water systems (TNCWSs) ( i.e., non-community water systems that do not regularly serve at least 25 of the same people over 6 months per year) are not required to monitor under UCMR 5. EPA leads UCMR 5 monitoring as a direct-implementation program. States, Territories, and Tribes with primary enforcement responsibility (primacy) to administer the regulatory program for PWSs under SDWA (hereinafter collectively referred to in this document as “states”), can participate in the implementation of UCMR 5 through voluntary Partnership Agreements (see discussion of Partnership Agreements in Section III.D of this preamble). Under Partnership Agreements, states can choose to be involved in various aspects of UCMR 5 monitoring for PWSs they oversee; however, the PWS remains responsible for compliance with the final rule. Potentially regulated categories and entities are identified in the following table.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the definition of PWS found in Title 40 in the Code of Federal Regulations (CFR) at 40 CFR 141.2 and 141.3, and the applicability criteria found in 40 CFR 141.40(a)(1) and (2). If you have questions regarding the applicability of this action to a particular entity, please consult the contacts listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

As part of EPA's responsibilities under SDWA, the agency implements section 1445(a)(2), Monitoring Program for Unregulated Contaminants. This section, as amended in 1996, requires that once every five years, beginning in August 1999, EPA issue a list of not more than 30 unregulated contaminants to be monitored by PWSs. SDWA requires that EPA enter the monitoring data into the agency's publicly available National Contaminant Occurrence Database (NCOD) at https://www.epa.gov/sdwa/national-contaminant-occurrence-database-ncod.

EPA must vary the frequency and schedule for monitoring based on the number of people served, the source of supply, and the contaminants likely to be found. EPA is using SDWA Section 1445(a)(2) authority as the basis for monitoring the unregulated contaminants under this final rule.

Section 2021 of America's Water Infrastructure Act of 2018 (AWIA) (Pub. L. 115-270) amended SDWA and specifies that, subject to the availability of EPA appropriations for such purpose and sufficient laboratory capacity, EPA's UCMR program must require all PWSs serving between 3,300 and 10,000 people to monitor for the contaminants in a particular UCMR cycle, and ensure that only a nationally representative sample of systems serving between 25 and 3,299 people are required to monitor for those contaminants. EPA has developed this final rule anticipating that necessary appropriations will become available; however, to date, Congress has not appropriated additional funding ( i.e., funding in addition to the $2.0 million that EPA has historically set aside each year from the Drinking Water State Revolving Fund, using SDWA authority, to support UCMR monitoring at small systems) to cover monitoring expenses for all PWSs serving between 3,300 and 10,000 people. Provisions in the final rule enable the agency to adjust the number of these systems that must monitor based upon available appropriations.

AWIA did not amend the original SDWA requirements for large PWSs. Therefore, PWSs serving a population larger than 10,000 people continue to be responsible for participating in UCMR.

Section 7311 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA) (Pub. L. 116-92) amended SDWA and specifies that EPA shall include all PFAS in UCMR 5 for which a drinking water method has been validated by the Administrator and that are not subject to a national primary drinking water regulation.

The applicability date represents an internal milestone used by EPA to determine if a PWS is included in the UCMR program and whether it will be treated as small ( i.e., serving 25 to 10,000 people) or large ( i.e., serving more than 10,000 people). It does not represent a date by which respondents need to take any action. The determination of whether a PWS is required to monitor under UCMR 5 is based on the type of system ( e.g., CWS, NTNCWS, etc.) and its retail population served, as indicated by the Safe Drinking Water Information System Federal Reporting Services (SDWIS/Fed) inventory on February 1, 2021. SDWIS/Fed can be accessed at https://www.epa.gov/ground-water-and-drinking-water/safe-drinking-water-information-system-sdwis-federal-reporting. Examining water system type and population served as of February 1, 2021 allowed EPA to develop a draft list of PWSs tentatively subject to UCMR 5 and share that list with the states during 2021 for their review. This advance planning and review then allowed EPA to load state-reviewed PWS information into EPA's reporting system so that those PWSs can be promptly notified upon publication of this final rule. If a PWS receives such notification and believes it has been erroneously included in UCMR 5 based on an incorrect retail population, the system should contact their state authority to verify its population served as of the applicability date. If an error impacting rule applicability is identified, the state or the PWS may contact EPA to address the error. The 5-year UCMR 5 cycle spans January 2022 through December 2026, with preparations in 2022, sample collection between January 1, 2023, and December 31, 2025, and completion of data reporting in 2026. By approximately July 1 of the year prior to each year's sample collection ( i.e., by July 1, 2022 for 2023 sampling; by July 1, 2023 for 2024 sampling; and by July 1, 2024 for 2025 sampling) EPA expects to determine whether it has received necessary appropriations to support its plan to monitor at all systems serving between 3,300 and 10,000 people and at a representative group of 800 smaller systems. As EPA finalizes its small-system plan for each sample collection year, the agency will notify the small PWSs accordingly.

EPA is requiring certain PWSs to collect occurrence data for 29 PFAS and lithium. This document addresses key aspects of UCMR 5, including the following: Analytical methods to measure the contaminants; laboratory approval; monitoring timeframe; sampling locations; data elements ( i.e., information required to be collected along with the occurrence data); data reporting timeframes; monitoring cost; public participation; conforming and editorial changes, such as those necessary to remove requirements solely related to UCMR 4; and EPA responses to public comments on the proposed rule. This document also discusses the implication for UCMR 5 of the AWIA Section 2021(a) requirement that EPA collect monitoring data from all systems serving more than 3,300 people “subject to the availability of appropriations.”

Regardless of whether EPA is able to carry out the small-system monitoring as planned, or instead reduces the scope of that monitoring, the small-system data collection, coupled with data collection from all systems serving more than 10,000 people under this action, will provide scientifically valid data on the national occurrence of 29 PFAS and lithium in drinking water. The UCMR data are the primary source of national occurrence data that EPA uses to inform regulatory and other risk management decisions for drinking water contaminant candidates.

EPA is required under SDWA Section 1445(a)(2)(C)(ii) to pay the “reasonable cost of such testing and laboratory analysis” for all applicable PWSs serving 25 to 10,000 people. Consistent with AWIA, EPA will require monitoring at as many systems serving 3,300 to 10,000 people as appropriations support (see Section IV.B of this preamble for more information on the agency's sampling design).

The agency received several public comments expressing concern that significant laboratory capacity will be needed to support the full scope envisioned for UCMR 5 PFAS monitoring. EPA anticipates that sufficient laboratory capacity will exist to support the expanded UCMR 5 scope. EPA's experience over the first four cycles of UCMR implementation has been that laboratory capacity quickly grows to meet UCMR demand. EPA also notes that the number of laboratories successfully participating in the early stages of the UCMR 5 laboratory approval program is a good indicator that there will be a robust national network of laboratories experienced in PFAS drinking water analysis.

By early 2022, EPA will notify all small CWSs and NTNCWSs serving between 3,300 and 10,000 people of their anticipated requirement to monitor, which EPA expects to confirm and schedule by July 1 preceding each collection year based on the availability of appropriations. The nationally representative sample of smaller PWSs described in Section I.A of this preamble will be similarly notified and advised of their schedules.

This final rule addresses the requirements of the NDAA by including all 29 PFAS that are within the scope of EPA Methods 533 and 537.1. Both of these methods have been validated by EPA for drinking water analysis.

EPA estimates the total average national cost of this action would be $21 million per year over the 5-year effective period of the final rule (2022-2026) assuming EPA collects information from all systems serving between 3,300 and 10,000 people. All of these costs are associated with paperwork burden under the Paperwork Reduction Act (PRA). EPA discusses the expected costs as well as documents the assumptions and data sources used in the preparation of this estimate in the “Information Collection Request for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021b). Costs are incurred by large PWSs (for sampling and analysis); small PWSs (for sampling); state regulatory agencies ( i.e., those who volunteer to assist EPA with oversight and implementation support); and EPA (for regulatory support and oversight activities, and analytical and shipping costs for samples from small PWSs). These costs are also summarized in Exhibit 1 of this preamble. EPA's estimates are based on executing the full monitoring plan for small systems ( i.e., including all systems serving 3,300 to 10,000 people and a representative group of 800 smaller systems). As such, those estimates represent an upper bound. If EPA does not receive the necessary appropriations in one or more of the collections years—and thus collects data from fewer small systems—the actual costs would be lower than those estimated here.

EPA received several comments on the cost of monitoring. EPA has accounted for the cost/burden associated with all of the PWS activities as part of the comprehensive cost/burden estimates. In order to provide the most accurate and updated cost estimate, EPA re-examined labor burden estimates for states, EPA, and PWS activities and updated costs of laboratory services for sample analysis, based on consultations with national drinking water laboratories, when developing this final rule.

The costs for a particular UCMR cycle are heavily influenced by the selection of contaminants and associated analytical methods. EPA identified three EPA-developed analytical methods (and, in the case of lithium, multiple optional alternative methods) to analyze samples for UCMR 5 contaminants. EPA's estimate of the UCMR 5 analytical cost is $740 per sample set ( i.e., $740 to analyze a set of samples from one sample point and one sample event for the 30 UCMR 5 contaminants).

Exhibit 1 of this preamble details the EPA-estimated annual average national costs (accounting for labor and non-labor expenses). Laboratory analysis and sample shipping account for approximately 65 percent of the estimated total national cost for the implementation of UCMR 5. EPA estimated laboratory costs based on consultations with multiple commercial drinking water testing laboratories. EPA's cost estimates for the laboratory methods include shipping and analysis.

EPA expects that states will incur modest labor costs associated with voluntary assistance with the implementation of UCMR 5. EPA estimated state costs using the relevant assumptions from the State Resource Model developed by the Association of State Drinking Water Administrators (ASDWA) (ASDWA, 2013) to help states forecast resource needs. Model estimates were adjusted to account for actual levels of state participation under UCMR 4. State assistance with EPA's implementation of UCMR 5 is voluntary; thus, the level of effort is expected to vary among states and will depend on their individual agreements with EPA.

EPA assumes that one-third of the systems will collect samples during each of the three sample-collection years from January 2023 through December 2025.

Additional details regarding EPA's cost assumptions and estimates can be found in the Information Collection Request (ICR) (USEPA, 2021b), ICR Number 2040-0304, which presents estimated cost and labor hours for the 5-year UCMR 5 period of 2022-2026. Copies of the ICR may be obtained from the EPA public docket for this final rule under Docket ID No. EPA-HQ-OW-2020-0530.

The public benefits from the information about whether or not unregulated contaminants are present in their drinking water. If contaminants are not found, consumer confidence in their drinking water should improve. If contaminants are found, related health effects may be avoided when subsequent actions, such as regulations, are implemented, reducing or eliminating those contaminants.

EPA held three public meetings on UCMR 5 over the period of 2018 through 2021. EPA held a meeting focused on drinking water methods for unregulated contaminants on June 6, 2018, in Cincinnati, Ohio. Representatives from state agencies, laboratories, PWSs, environmental organizations, and drinking water associations joined the meeting via webinar and in person. Meeting topics included an overview of regulatory process elements (including the Contaminant Candidate List (CCL), UCMR, and Regulatory Determination), and drinking water methods under development (see USEPA, 2018 for presentation materials). EPA held a second meeting on July 16, 2019, in Cincinnati, Ohio. Representatives from State agencies, Tribes, laboratories, PWSs, environmental organizations, and drinking water associations participated in the meeting via webinar and in person. Meeting topics included the impacts of AWIA, analytical methods and contaminants being considered by EPA, potential sampling design, and other possible aspects of the UCMR 5 approach (see USEPA, 2019a for meeting materials). EPA held two identical virtual meetings on April 6 and 7, 2021, during the public comment period for the proposed rule (see USEPA, 2021c for presentation materials). Topics included the proposed UCMR 5 monitoring requirements, analyte selection and rationale, analytical methods, the laboratory approval process, and ground water representative monitoring plans (GWRMPs). Representatives of state agencies, laboratories, PWSs, environmental organizations, and drinking water associations participated in the meeting via webinar. In Section II.B of this preamble, the agency is announcing additional meetings to be held in 2022, which will assist with implementation.

EPA will hold multiple virtual meetings during 2022 to discuss UCMR 5 implementation planning, data reporting using Safe Drinking Water Accession and Review System (SDWARS), and best practices for sample collection. Dates and times of the upcoming meetings will be posted on EPA's website at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials. EPA anticipates hosting the meetings focused on implementation planning in spring 2022, and the SDWARS and sample-collection meetings in fall 2022. Stakeholders who have participated in past UCMR meetings and/or those who register to use SDWARS will receive notification of these events. Other interested stakeholders are also welcome to participate.

Those who wish to participate in the public meetings, via webinar, can find information on how to register at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials. The number of webinar connections available for the meetings are limited and will be available on a first-come, first-served basis. If stakeholder interest results in exceeding the maximum number of available connections for participants in upcoming webinar offerings, EPA may schedule additional webinars, with dates and times posted on EPA's Unregulated Contaminant Monitoring Program Meetings and Materials web page at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials.

EPA expects to send meeting materials by email to all registered participants prior to the meeting. The materials will be posted on EPA's website at https://www.epa.gov/dwucmr/unregulated-contaminant- monitoring-rule-ucmr-meetings-and-materials for people who do not participate in the webinar.

Under the 1996 amendments to SDWA, Congress established a multi-step, risk-based approach for determining which contaminants would become subject to drinking water standards. Under the first step, EPA is required to publish a CCL every five years that identifies contaminants that are not subject to any proposed or promulgated drinking water regulations, are known or anticipated to occur in PWSs, and may require future regulation under SDWA. EPA published the draft CCL 5 in the Federal Register on July 19, 2021 (86 FR 37948, July 19, 2021 (USEPA, 2021d)). Under the second step, EPA must require, every five years, monitoring of unregulated contaminants as described in this action. The third step requires EPA to determine, every five years, whether or not to regulate at least five contaminants from the CCL. Under Section 1412(b)(1)(A) of SDWA, EPA regulates a contaminant in drinking water if the Administrator determines that:

For the contaminants that meet all three criteria, SDWA requires EPA to publish national primary drinking water regulations (NPDWRs). Information on the CCL and the regulatory determination process can be found at: https://www.epa.gov/ccl.

The data collected through the UCMR program are made available to the public through the National Contaminant Occurrence Database (NCOD) for drinking water. EPA developed the NCOD to satisfy requirements in SDWA Section 1445(g), to assemble and maintain a drinking water contaminant occurrence database for both regulated and unregulated contaminants in drinking water systems. NCOD houses data on unregulated contaminant occurrence; data from EPA's “Six-Year Review” of national drinking water regulations; and ambient and/or source water data. Section 1445(g)(3) of SDWA requires that EPA maintain UCMR data in the NCOD and use the data when evaluating the frequency and level of occurrence of contaminants in drinking water at a level of public health concern. UCMR results can be viewed by the public via NCOD ( https://www.epa.gov/sdwa/national-contaminant-occurrence-database-ncod ) or via the UCMR web page at: https://www.epa.gov/dwucmr.

In addition to reporting UCMR monitoring data to EPA, PWSs are responsible for presenting and addressing UCMR results in their annual Consumer Confidence Reports (CCRs) (40 CFR 141.153) and must address Public Notice (PN) requirements associated with UCMR (40 CFR 141.207). More details about the CCR and PN requirements can be viewed by the public at: https://www.epa.gov/ccr and https://www.epa.gov/dwreginfo/public-notification-rule, respectively.

This final rule identifies a UCMR 5 sampling period of 2023 to 2025. Prior to 2023 EPA will coordinate laboratory approval, tentatively select representative small systems (USEPA, 2021a), organize Partnership Agreements, develop State Monitoring Plans (see Section III.D of this preamble), establish monitoring schedules and inventory, and conduct outreach and training. Exhibit 2 of this preamble illustrates the major activities that EPA expects will take place in preparation for and during the implementation of UCMR 5.

UCMR is a direct implementation rule ( i.e., EPA has primary responsibility for its implementation) and state participation is voluntary. Under the previous UCMR cycles, specific activities that individual states agreed to carry out or assist with were identified and established exclusively through Partnership Agreements. Through Partnership Agreements, states can help EPA implement UCMR and help ensure that the UCMR data are of the highest quality possible to best support the agency decision making. Under UCMR 5, EPA will continue to use the Partnership Agreement process to determine and document the following: The process for review and revision of the State Monitoring Plans; replacing and updating PWS information, including inventory ( i.e., PWS identification codes (PWSID), facility identification code along with associated facility types and water source type, etc.); review of proposed GWRMPs; notification and instructions for systems; and compliance assistance. EPA recognizes that states often have the best information about their PWSs and encourages them to partner in the UCMR 5 program.

By monitoring for unregulated contaminants that may pose health risks via drinking water, UCMR furthers the protection of public health for all citizens, including children. Children consume more water per unit of body weight compared to adults. Moreover, formula-fed infants drink a large amount of water compared to their body weight; thus, children's exposure to contaminants in drinking water may present a disproportionate health risk (USEPA, 2011). The objective of UCMR 5 is to collect nationally representative drinking water occurrence data on unregulated contaminants for future regulatory consideration. Information on the prioritization process, as well as contaminant-specific information ( e.g., source, use, production, release, persistence, mobility, health effects, and occurrence), that EPA used to select the analyte list, is contained in “Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021e), available in the UCMR 5 public docket.

Since this is a final rule to monitor for contaminants and not to reduce their presence in drinking water to an acceptable level, the rule does not concern environmental health or safety risks presenting a disproportionate risk to children that would be addressed by this action (See Section V.G Executive Order 13045 of this preamble). Therefore, Executive Order 13045 does not apply to UCMR. However, EPA's Policy on Evaluating Health Risks to Children, which ensures that the health of infants and children is explicitly considered in the agency's decision making, is applicable, see: https://www.epa.gov/children/epas-policy-evaluating-risk-children.

EPA considered children's health risks during the development of UCMR 5. This included considering public comments about candidate contaminant priorities. Many commenters supported the agency's inclusion of PFAS and lithium in UCMR 5. Some commenters requested that EPA consider children and infant health risks in its risk communication for UCMR 5.

Using quantitation data from multiple laboratories, EPA establishes statistically-based UCMR reporting levels the agency considers feasible for the national network of approved drinking water laboratories. EPA generally sets the reporting levels as low as is technologically practical for measurement by that national network of laboratories, even if that level is well below concentrations that are currently associated with known or suspected health effects. In doing so, EPA positions itself to better address contaminant risk information in the future, including that associated with unique risks to children.

EPA has concluded that this action is not subject to Executive Order 12898 because it does not establish an environmental health or safety standard (see Section V.J Executive Order 12898 of this preamble). EPA Administrator Regan issued a directive to all EPA staff to incorporate environmental justice (EJ) into the agency's work, including regulatory activities, such as integrating EJ considerations into the regulatory development processes and considering regulatory options to maximize benefits to communities that “continue to suffer from disproportionately high pollution levels and the resulting adverse health and environmental impacts.” In keeping with this directive, and consistent with AWIA, EPA will, subject to the availability of sufficient appropriations, expand UCMR 5 to include all PWSs serving between 3,300 and 10,000 people as described in Sections I.A.4 and IV.B of this preamble. If there are sufficient appropriations, the expansion in the number of participating PWSs will provide a more comprehensive assessment of contaminant occurrence data from small and rural communities, including disadvantaged communities.

By developing a national characterization of unregulated contaminants that may pose health risks via drinking water from PWSs, UCMR furthers the protection of public health for all citizens. If EPA receives the needed appropriations, the expansion in monitoring scope reflected in UCMR 5 ( i.e., including all PWSs serving 3,300 to 10,000 people) will better support state and regional analyses and determination of potential EJ-related issues that need to be addressed. EPA structured the UCMR 5 rulemaking process to allow for meaningful involvement and transparency. EPA organized public meetings and webinars to share information regarding the development and implementation of UCMR 5; consulted with Tribal governments; and convened a workgroup that included representatives from several states. EPA will support stakeholder interest in UCMR 5 results by making them publicly available, as described in Section III.A of this preamble, and by developing additional risk-communication materials to help individuals and communities understand the significance of contaminant occurrence.

EPA received multiple comments on environmental justice considerations. Commenters expressed support for the continued collection of U.S. Postal Service Zip Codes for each PWS's service area and requested that EPA provide multilingual UCMR materials. EPA will continue to collect Zip Codes for UCMR 5, as collected under UCMR 3 and UCMR 4, to support potential assessments of whether or not certain communities are disproportionately impacted by particular drinking water contaminants. EPA also intends to develop the sampling instructions, fact sheets, and data summaries in both English and Spanish.

EPA has concluded that this action has Tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized Tribal governments, nor preempt Tribal law. (See section V.F Executive Order 13175 of this preamble).

EPA consulted with Tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this action to ensure meaningful and timely input into its development. EPA initiated the Tribal consultation and coordination process before proposing the rule by mailing a “Notification of Consultation and Coordination” letter on June 26, 2019, to the Tribal leadership of the then 573 federally recognized Tribes. The letter invited Tribal leaders and representatives of Tribal governments to participate in an August 6, 2019, UCMR 5 Tribal consultation and coordination informational meeting. Presentation topics included an overview of the UCMR program, potential approaches to monitoring and implementation for UCMR 5, and the UCMR 5 contaminants and analytical methods under consideration. After the presentation, EPA provided an opportunity for input and questions on the action. Eight representatives from five Tribes attended the August meeting. Tribal representatives asked clarifying questions regarding program costs to PWSs and changes in PWS participation per AWIA. EPA addressed the questions during the meeting. Following the meeting, EPA received and addressed one additional clarifying question from a Tribal representative during the Tribal consultation process. No other Tribal representatives submitted written comments during the UCMR 5 consultation comment period that ended September 1, 2019.

Prior to the August 2019 meeting, EPA provided additional opportunities for Tribal officials to provide meaningful and timely input into the development of the proposed rule. On July 10, 2019, EPA participated in a monthly conference call with the National Tribal Water Council (NTWC). EPA shared a brief summary of UCMR statutory requirements with the Council and highlighted the upcoming official Tribal meeting. EPA also invited Tribal leaders and representatives to participate in a public meeting, held on July 16, 2019, to discuss the development of the proposed rule. Representatives from six Tribes participated in the public meeting. Following the publication of the proposal, EPA advised the Indian Health Services of the 60-day public comment period to assist with facilitating additional Tribal comments on the proposed rule. EPA received no public comments from Tribal officials.

A complete summary of the consultation, titled, “Summary of the Tribal Coordination and Consultation Process for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” is provided in the UCMR 5 public docket listed in the ADDRESSES section of this preamble.

Consistent with prior UCMRs, this action maintains the requirement that PWSs use laboratories approved by EPA to analyze UCMR 5 samples. Interested laboratories are encouraged to apply for EPA approval as early as possible. The UCMR 5 laboratory approval process, which began with the publication of the UCMR 5 proposal, is designed to assess whether laboratories possess the required equipment and can meet laboratory-performance and data-reporting criteria described in this action.

EPA expects demand for laboratory support to increase significantly based on the greater number of PWSs expected to participate in UCMR 5. EPA anticipates that the number of participating small water systems will increase from the typical 800 to approximately 6,000 (see Exhibit 5 in Section IV.B of this preamble). In preparation for this increase, EPA will solicit proposals and award contracts to laboratories to support small system monitoring prior to the end of the proficiency testing (PT) program. As in previous UCMR programs, EPA expects that laboratories awarded contracts by EPA will be required to first be approved to perform all methods. The requirements for the laboratory approval process are described in steps 1 through 6 of the following paragraphs.

EPA will require laboratories seeking approval to: (1) Provide EPA with data documenting an initial demonstration of capability (IDC) as outlined in each method; (2) verify successful performance at or below the minimum reporting levels (MRLs) as specified in this action; (3) provide information about laboratory standard operating procedures (SOPs); and (4) participate in two EPA PT studies for the analytes of interest. Audits of laboratories may be conducted by EPA prior to and/or following approval, and maintaining approval is contingent on timely and accurate reporting. The “UCMR 5 Laboratory Approval Manual” (USEPA, 2021f), available in the UCMR 5 public docket, provides more specific guidance on EPA laboratory approval program and the specific method acceptance criteria. EPA has included sample-collection procedures that are specific to the methods in the “UCMR 5 Laboratory Manual,” and will address these procedures in our outreach to the PWSs that will be collecting samples.

The UCMR 5 laboratory approval program will provide an assessment of the ability of laboratories to perform analyses using the methods listed in 40 CFR 141.40(a)(3), Table 1 of this preamble. Laboratory participation in the program is voluntary. However, as in the previous UCMRs, EPA will require PWSs to exclusively use laboratories that have been approved under the program. EPA will post a list of approved UCMR 5 laboratories to https://www.epa.gov/dwucmr and will bring this to the attention of the PWSs in our outreach.

Laboratories interested in the UCMR 5 laboratory approval program first email EPA at: UCMR_Lab_Approval@epa.gov to request registration materials. EPA began accepting requests beginning with the publication of the proposal in the Federal Register .

Laboratory applicants provide registration information that includes laboratory name, mailing address, shipping address, contact name, phone number, email address, and a list of the UCMR 5 methods for which the laboratory is seeking approval. This registration step provides EPA with the necessary contact information and ensures that each laboratory receives a customized application package.

Laboratory applicants will complete and return a customized application package that includes the following: IDC data, including precision, accuracy, and results of MRL studies; information regarding analytical equipment and other materials; proof of current drinking water laboratory certification (for select compliance monitoring methods); method-specific SOPs; and example chromatograms for each method under review.

As a condition of receiving and maintaining approval, the laboratory must promptly post UCMR 5 monitoring results and quality control data that meet method criteria (on behalf of its PWS clients) to EPA's UCMR electronic data reporting system, SDWARS.

Based on the January 1, 2023 start for UCMR 5 sample collection, the deadline for a laboratory to submit the necessary registration and application information is August 1, 2022.

EPA will review the application packages and, if necessary, request follow-up information. Laboratories that successfully complete the application process become eligible to participate in the UCMR 5 PT program.

A PT sample is a synthetic sample containing a concentration of an analyte or mixture of analytes that is known to EPA, but unknown to the laboratory. To be approved, a laboratory must meet specific acceptance criteria for the analysis of a UCMR 5 PT sample(s) for each analyte in each method, for which the laboratory is seeking approval. EPA offered three PT studies between publication of the proposed rule and final rule, and anticipates offering at least two additional studies. Interested laboratories must participate in and report data for at least two PT studies. This allows EPA to collect a robust dataset for PT results, and provides laboratories with extra analytical experience using UCMR 5 methods. Laboratories must pass a PT for every analyte in the method to be approved for that method and may participate in multiple PT studies in order to produce passing results for each analyte. EPA has taken this approach in UCMR 5, recognizing that EPA Method 533 contains 25 analytes. EPA does not expect to conduct additional PT studies after the start of PWS monitoring; however, EPA expects to conduct laboratory audits (remote and/or on-site) throughout the implementation of UCMR 5 on an as needed and/or random basis. Initial laboratory approval is contingent on successful completion of PT studies, which includes properly uploading the PT results to SDWARS. Continued laboratory approval is contingent on successful completion of the audit process and satisfactorily meeting all the other stated conditions.

For laboratories that have already successfully completed steps 1 through 5, EPA sent the laboratory a notification letter listing the methods for which approval was “pending” ( i.e., pending promulgation of this final rule). Because no changes have been made to the final rule that impact the laboratory approval program, laboratories that received pending-approval letters will be notified of full approval without further action on their part. Approval actions for additional laboratories that successfully complete steps 1 through 5 will also be documented by EPA in writing.

The following methods are being incorporated by reference into this section for UCMR 5 monitoring. All method material is available for inspection electronically at https://www.regulations.gov (Docket ID No. EPA-HQ-OW-2020-0530), or from the sources listed for each method. The methods that may be used to support monitoring under this final rule are as follows:

The following methods are available at EPA's Docket No. EPA-HQ-OW-2020-0530.

(i) EPA Method 200.7 “Determination of Metals and Trace Elements in Water and Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry,” Revision 4.4, 1994. Available at https://www.epa.gov/esam/method-2007-determination-metals-and-trace-elements-water-and-wastes-inductively-coupled-plasma. This is an EPA method for the analysis of metals and trace elements in water by ICP-AES and may be used to measure lithium during UCMR 5. See also the discussion of non-EPA alternative methods for lithium in this section.

(ii) EPA Method 533 “Determination of Per- and Polyfluoroalkyl Substances in Drinking Water by Isotope Dilution Anion Exchange Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry,” November 2019, EPA 815-B-19-020. Available at https://www.epa.gov/dwanalyticalmethods/analytical-methods-developed-epa-analysis-unregulated-contaminants. This is an EPA method for the analysis PFAS in drinking water using SPE and LC/MS/MS and is to be used to measure 25 PFAS during UCMR 5 (11Cl-PF3OUdS, 8:2 FTS, 4:2 FTS, 6:2 FTS, ADONA, 9Cl-PF3ONS, HFPO-DA (GenX), NFDHA, PFEESA, PFMPA, PFMBA, PFBS, PFBA, PFDA, PFDoA, PFHpS, PFHpA, PFHxS, PFHxA, PFNA, PFOS, PFOA, PFPeS, PFPeA, and PFUnA).

(iii) EPA Method 537.1 “Determination of Selected Per- and Polyfluorinated Alkyl Substances in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS),” Version 2.0, March 2020, EPA/600/R-20/006. Available at https://www.epa.gov/dwanalyticalmethods/analytical-methods-developed-epa-analysis-unregulated-contaminants. This is an EPA method for the analysis of PFAS in drinking water using SPE and LC/MS/MS and is to be used to measure four PFAS during UCMR 5 (NEtFOSAA, NMeFOSAA, PFTA, and PFTrDA).

The following methods are from American Public Health—Standard Methods (SM), 800 I Street NW, Washington, DC 20001-3710.

(i) “Standard Methods for the Examination of Water & Wastewater,” 23rd edition (2017).

(a) SM 3120 B, “Metals by Plasma Emission Spectroscopy (2017): Inductively Coupled Plasma (ICP) Method.” This is a Standard Method for the analysis of metals in water and wastewater by emission spectroscopy using ICP and may be used for the analysis of lithium.

(ii) “Standard Methods Online,” approved 1999. Available for purchase at https://www.standardmethods.org.

(a) SM 3120 B, “Metals by Plasma Emission Spectroscopy: Inductively Coupled Plasma (ICP) Method, Standard Methods Online,” revised December 14, 2020. This is a Standard Method for the analysis of metals in water and wastewater by emission spectroscopy using ICP and may be used for the analysis of lithium.

The following methods are from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959.

(i) ASTM D1976-20, “Standard Test Method for Elements in Water by Inductively-Coupled Plasma Atomic Emission Spectroscopy,” approved May 1, 2020. Available for purchase at https://www.astm.org/Standards/D1976.htm. This is an ASTM method for the analysis of elements in water by ICP-AES and may be used to measure lithium.

EPA published “Revisions to the Unregulated Contaminant Monitoring Rule (UCMR 5) for Public Water Systems and Announcement of Public Meeting;” Proposed Rule, on March 11, 2021 (86 FR 13846, (USEPA, 2021g)). The UCMR 5 proposal identified three EPA analytical methods, and multiple alternative methods, to support water system monitoring for 30 UCMR 5 contaminants (29 PFAS and lithium) and detailed other potential changes relative to UCMR 4. Among the other changes reflected in the UCMR 5 proposal were the following: Requirement for water systems serving 3,300 to 10,000 people to monitor per AWIA requirements “subject to the availability of appropriations”; provisions for sampling frequency, timing, and locations; submission timeframe for GWRMPs; data reporting timeframes; and reporting requirements.

EPA received 75 sets of comments from 72 public commenters, including other federal agencies, state and local governments, utilities and utility stakeholder organizations, laboratories, academia, non-governmental organizations, and other interested stakeholders. After considering the comments, EPA developed the final UCMR 5 as described in Exhibit 3 of this preamble. Except as noted, the UCMR 5 final rule approach is consistent with the proposed rule. A track-changes version of the rule language, comparing UCMR 4 to UCMR 5, (“Revisions to 40 CFR 141.35 and 141.40” (USEPA, 2021h)), is included in the electronic docket listed in the ADDRESSES section of this preamble.

This section summarizes key aspects of this final rule and the associated comments received in response to the proposed rule. EPA has compiled all public comments and EPA's responses in the “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.

EPA is maintaining the proposed list of UCMR 5 contaminants and the methods associated with analyzing those contaminants (see Exhibit 4 of this preamble). Further information on the prioritization process, as well as contaminant-specific information ( e.g., source, use, production, release, persistence, mobility, health effects, and occurrence), that EPA used to select the analyte list, is contained in “Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021e). This Information Compendium can be found in the electronic docket listed in the ADDRESSES section of this preamble.

In FR Doc. 2021-23972 of November 19, 2021, the CY 2022 PFS final rule (86 FR 64996), there were technical errors that are identified and corrected in this correcting document. These corrections are effective as if they had been included in the CY 2022 PFS final rule. Accordingly, the corrections are effective January 1, 2022.

On page 65320, in Table 39: MDPP Payment Structure, lines 7 and 9, we made typographical errors in the final payment rate for Core Maintenance (CM) Session (Months 7-12) for entries Attend 2 Core Maintenance Sessions (No 5% WL) in CM Interval 1 (Months 7-9)) and (Attend 2 Core Maintenance Sessions (No 5% WL) in CM Interval 2 (Months 10-12)).

On page 65324, second column, first partial paragraph, line 26, we made a typographical error in the core maintenance sessions amount.

On page 65668, third column, line 4 contains a typographical error.

On page 65670, second column, line 41 contains a typographical error in the paragraph designation.

On page 65670, second column, lines 44 through 45 contain a typographical error in the paragraph designation.

On page 65673, third column, lines 4 through 5 contain typographical errors.

On page 65673, third column, lines 57 through 58 contain typographical errors.

On page 65673, third column, line 66 contains typographical errors.

On page 65702, B.1 Allergy/Immunology, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, contains a typographical error.

On page 65725, B.9 Dermatology, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65730, B.11 Emergency Medicine, eighth column, seventh full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, contains a typographical error.

On page 65743, B.13 Family Medicine, eighth column, first full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 8, contains a typographical error.

On page 65751, B.14 Gastroenterology, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65753, B.15 General Surgery, eighth column, sixth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, contains a typographical error.

On page 65768, B.19 Internal Medicine, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, contain a typographical error.

On page 65779, B.21 Mental/Behavioral, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65783, B.22 Nephrology, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65787, B.23 Neurology, eighth column, seventh full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65800, B.26 Obstetrics/Gynecology, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 10, contains a typographical error.

On page 65805, B.27 Oncology/Hematology, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 8, contains a typographical error.

On page 65817, B.29 Orthopedic Surgery, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 8, contains a typographical error.

On page 65824, B.30 Otolaryngology, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, contain a typographical error.

On page 65833, B.33 Physical Medicine, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, contain a typographical error.

On page 65841, B.35 Plastic Surgery eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, contain a typographical error.

On page 65849, B.37 Preventive Medicine, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, contain a typographical error.

On page 65856, B.39 Rheumatology, eighth column, fourth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65859, B.40 Skilled Nursing Facility, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, contains a typographical error.

On page 65865, B.42 Thoracic Surgery, seventh column, fourth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 8 and 9, contain a typographical error.

On page 65867, B.43 Urgent Care, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, contain a typographical error.

On page 65870, B.44 Urology, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65875, B.45 Vascular Surgery, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, contains a typographical error.

On page 65967, D.87: Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, the Current Measure Description for Quality # 317 contains a typographical error.

On page 65979, Table B: Changes to Previously Adopted Improvement Activities for the CY 2022 Performance Period/2024 MIPS Payment Year and Future Years, second column, fifth full row, an inadvertent error was made noting the current weighting of this Current Improvement Activity.

On page 65980, Table B: Changes to Previously Adopted Improvement Activities for the CY 2022 Performance Period/2024 MIPS Payment Year and Future Years, second column, fifth full row, an inadvertent error was made noting the weighting of this Finalized Improvement Activity.

On page 65998, footnote 287, an inadvertent error was made noting the section of the rule regarding the MVP implementation timeline.

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (the APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Social Security Act (the Act) requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the APA notice and comment, and delay in effective date requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and includes a statement of the finding and the reasons for it in the rule. In addition, section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and the agency includes in the rule a statement of the finding and the reasons for it.

In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects technical errors in the CY 2022 PFS final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were proposed, subject to notice and comment procedures, and adopted in the CY 2022 PFS final rule. As a result, the corrections made through this correcting document are intended to resolve inadvertent errors so that the rule accurately reflects the policies adopted in the final rule. Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the CY 2022 PFS final rule or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the rule accurately reflects our policies as of the date they take effect. Further, such procedures would be unnecessary because we are not making any substantive revisions to the final rule, but rather, we are simply correcting the Federal Register document to reflect the policies that we previously proposed, received public comment on, and subsequently finalized in the final rule. For these reasons, we believe there is good cause to waive the requirements for notice and comment and delay in effective date.

In FR Doc. 2021-23972 of November 19, 2021 (86 FR 64996) make the following corrections:

1. On page 65320, in Table 39: MDPP Payment Structure, lines 7 and 9, the listed entries are corrected to read as follows:

2. On page 65324, second column, first partial paragraph, line 26, the phrase that reads “sessions to from $52.00 to $75.00.” is corrected to read “sessions from $52.00 to $70.00.”

1. On page 65702, B.1 Allergy/Immunology, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, the phrase “pre-hypertensive” is corrected to read “elevated”.

2. On page 65725, B.9 Dermatology, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

3. On page 65730, B.11 Emergency Medicine, eighth column, seventh full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, the phrase “pre-hypertensive” is corrected to read “elevated”.

4. On page 65743, B.13 Family Medicine, eighth column, first full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

5. On page 65751, B.14 Gastroenterology, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

6. On page 65753, B.15 General Surgery, eighth column, sixth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, the phrase “pre-hypertensive” is corrected to read “elevated”.

7. On page 65768, B.19 Internal Medicine, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

8. On page 65779, B.21 Mental/Behavioral, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

9. On page 65783, B.22 Nephrology, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

10. On page 65787, B.23 Neurology, eighth column, seventh full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

11. On page 65800, B.26 Obstetrics/Gynecology, eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 10, the phrase “pre-hypertensive” is corrected to read “elevated”.

12. On page 65805, B.27 Oncology/Hematology, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

13. On page 65817, B.29 Orthopedic Surgery, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

14. On page 65824, B.30 Otolaryngology, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

15. On page 65833, B.33 Physical Medicine, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

16. On page 65841, B.35 Plastic Surgery eighth column, third full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

17. On page 65849, B.37 Preventive Medicine, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

18. On page 65856, B.39 Rheumatology, eighth column, fourth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

19. On page 65859, B.40 Skilled Nursing Facility, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 6, the phrase “pre-hypertensive” is corrected to read “elevated”.

20. On page 65865, B.42 Thoracic Surgery, seventh column, fourth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 8 and 9, the phrase “pre-hypertensive” is corrected to read “elevated”.

21. On page 65867, B.43 Urgent Care, eighth column, second full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, lines 7 and 8, the phrase “pre-hypertensive” is corrected to read “elevated”.

22. On page 65870, B.44 Urology, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

23. On page 65875, B.45 Vascular Surgery, eighth column, fifth full row, Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, line 7, the phrase “pre-hypertensive” is corrected to read “elevated”.

24. On page 65967, D.87: Preventive Care and Screening: Screening for High Blood Pressure and Follow-up Documented, second column, Description, sixth full row, Current Measure Description, line 2, the phrase “pre-hypertensive” is corrected to read “elevated”.

25. On page 65979, Table B: Changes to Previously Adopted Improvement Activities for the CY 2022 Performance Period/2024 MIPS Payment Year and Future Years, second column, IA_AHE_1, fifth full row, of this Current Improvement Activity, Current Weighting, the phrase “Medium” should be corrected to read “High”.

26. On page 65980, Table B: Changes to Previously Adopted Improvement Activities for the CY 2022 Performance Period/2024 MIPS Payment Year and Future Years, second column, IA_AHE_1, fifth full row, of this Finalized Improvement Activity, Weighting, the phrase “Medium” should be corrected to read “High”.

27. On page 65998, footnote 287, that reads “See section IV.A.3.b.(2)(d) of this final rule for additional details regarding the MVP implementation timeline” is corrected to read: “See section IV.A.3.b.(2)(c) of this final rule for additional details regarding the MVP implementation timeline.”

Section 8441 of the Elijah E. Cummings Coast Guard Authorization Act of 2020 (2020 CGAA) amended Title 46 of the United States Code (U.S.C.), section 3306, which now directs the Secretary of the Department of Homeland Security (DHS) to prescribe fire safety regulations for certain “covered small passenger vessels,” defined as small passenger vessels (SPVs) with overnight accommodations for passengers or operating on Oceans or Coastwise routes, excluding fishing vessels and ferries. (See Pub. L. 116-283, January 1, 2021.) The 2020 CGAA added a new paragraph (n) to section 3306 which requires the Secretary to issue interim requirements to cover the following eight provisions:

1. Marine firefighting training programs to improve crewmember training and proficiency, including egress training for each member of the crew;

2. Interconnected fire detection equipment and additional fire extinguishers and firefighting equipment in all areas on board where passengers and crew have access;

3. Installation and use of monitoring devices to ensure wakefulness of the required night watch (for covered SPVs with overnight passenger accommodations);

4. Increased fire detection and suppression systems in unmanned areas with machinery or areas with other potential heat sources;

5. No less than two independent avenues of escape for all general areas accessible to passengers, that are constructed and arranged to allow for unobstructed egress, located so that if one avenue of escape is not available, another avenue of escape is available, and not directly above, or dependent on, a berth (for covered SPVs with overnight passenger accommodations);

6. Handling, storage, and operation of flammable items, such as rechargeable batteries, including lithium-ion batteries;

7. Requirements for passenger emergency egress drills (for covered SPVs with overnight passenger accommodations); and

8. Providing all passengers a copy of the emergency egress plan for the vessel (for covered SPVs with overnight passenger accommodations).

Section 46 U.S.C. 3306(n) requires that the Secretary perform a comprehensive review of all existing requirements for fire detection, protection, and suppression systems, and avenues of egress on covered SPVs to support the rulemaking. Prior to completing the comprehensive review and issuing final regulations, Section 46 U.S.C. 3306(n) requires that the Secretary implement interim requirements to enforce the fire safety provisions listed in Section 46 U.S.C. 3306(n)(3), which is the subject of this interim rule. The Secretary delegated the statutory authority to promulgate regulations related to passenger safety on vessels to the Coast Guard through DHS Delegation No. 00170.1(92)(b), Revision No. 01.2.

Section 3306(n)(4)(B) exempts the Coast Guard's implementation of the interim requirements from compliance with Chapters 5 and 6 of 5 U.S.C., and from Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review). This means that the interim requirements are exempt from several common rulemaking procedural steps, including:

• The public notice and comment requirements of the Administrative Procedure Act;

• The economic analysis requirements of the Regulatory Flexibility Act;

• The Unified Agenda, significance determination, and the Office of Information and Regulatory Affairs review requirements of Executive Order 12866; and

• Executive Order 13563 requirements that the rule impose the least burden and maximize net benefits.

The exemptions provided in the 2020 CGAA do not cover all the laws and Executive orders that potentially apply to rulemaking. The Federal Register Act, Paperwork Reduction Act, National Environmental Policy Act, and various Executive orders, such as those on Federalism, tribal consultation, and taking of property still apply and are considered in this preamble. We are issuing an interim rule with request for public comment to implement the interim requirements. In the future, we plan to issue final regulations after consideration of public comment and relevant matter presented from our comprehensive review. The comprehensive review will incorporate both technical and economic benefit-cost considerations not required to be addressed in this interim rule.

The mandates in 46 U.S.C. 3306(n) are an outcome of the fire onboard the 75-foot dive boat CONCEPTION on September 2, 2019, off the coast of Santa Cruz Island, California, resulting in the deaths of 34 persons. At approximately 3 a.m., fire broke out on the main deck directly above the lower deck berthing area where the 33 passengers and 1 crewmember were sleeping and ultimately perished.

The National Transportation Safety Board (NTSB) conducted an investigation of the incident and stated in its Marine Accident Report that, “the probable cause of the accident on board the SPV CONCEPTION was the failure of Truth Aquatics, Inc. to provide effective oversight of its vessel and crewmember operations, including requirements to ensure that a roving patrol was maintained, which allowed a fire of unknown cause to grow, undetected, in the vicinity of the aft salon on the main deck.”  1 The NTSB determined that other contributing causes were inadequate smoke detection and inadequate egress arrangements. While the cause of the fire remains unknown, potential sources of ignition noted by the NTSB include malfunctioning lithium-ion batteries and overloading electrical circuits due to excessively connecting a series of rechargeable devices together using a single connection.

Furthermore, the NTSB issued safety recommendations to the Coast Guard in its October 20, 2020 Marine Accident Report discussing the CONCEPTION incident, 2 which we summarize as the following provisions:

• Revise 46 CFR Subchapter T to require all new and existing vessels with overnight accommodations to have smoke detectors in all accommodation spaces (M-20-014 & M-20-015);

• Revise Subchapters T and K to require all new and existing vessels with overnight accommodations to have interconnected smoke detectors (M-20-016);

• Develop and implement inspection procedures to verify that vessel owners, operators, and charterers are conducting roving patrols (M-20-017);

• Revise Subchapter T to require all new and existing vessels with overnight accommodations to provide secondary means of escape into a different space than the primary exit (M-20-018 & M-20-019); and

• Review suitability of Subchapter T regulations regarding means of escape for vessels constructed prior to 1996 (M-20-020).

This interim rule implements the requirements in 46 U.S.C. 3306(n)(4)(A) to add additional interim fire safety requirements for SPVs. The Coast Guard has several existing fire safety regulations for small passenger vessels in 46 CFR Subchapter K, titled “Small Passenger Vessels Carrying More Than 150 Passengers Or With Overnight Accommodations For More Than 49 Passengers,” and Subchapter T, titled “Small Passenger Vessels (Under 100 Gross Tons).” Subchapter K applies to small passenger vessels (as defined by 46 U.S.C. 2101, and implemented under Subchapter K) less than 100 GT that carry more than 150 passengers, or that have overnight accommodations for more than 49 passengers, and carry at least 1 passenger for hire. Subchapter T applies to small passenger vessels (as defined by 46 U.S.C. 2101, and implemented under Subchapter T) less than 100 GT that carry 150 or less passengers, or that have overnight accommodations for 49 or less passengers, and that carry more than 6 passengers, including at least 1 for hire.

On March 11, 1996, the Coast Guard implemented regulations generally applicable to “new vessels” (defined in 46 CFR 114.400 and 175.400), whereas several parts allowed “existing vessels” (defined in 46 CFR 114.400 and 175.400) to remain in compliance with regulations that existed on March 10, 1996. See 61 FR 864 (Jan. 10, 1996). This interim rule implements many of the statutory mandates by requiring certain small passenger vessels to come into compliance with a handful of fire safety and means of escape requirements implemented on March 11, 1996 that were previously only applicable to “new vessels.” This interim rule will increase the applicability of the Subchapter K and T requirements to “existing vessels” and also adds additional requirements, as directed by the 2020 CGAA.

Some of the terminology used in this interim rule's regulatory text and preamble varies from the terms or phrases used in 46 U.S.C. 3306(n). For the purpose of promoting consistency, this interim rule uses language and terms that are already defined or used in Subchapters K and T when applicable. For example, the Coast Guard uses the phrase “overnight accommodations for passengers” instead of the 46 U.S.C. 3306(n) phrase “overnight passenger accommodations” because “overnight accommodations” is already defined in Subchapters K and T in §§ 114.400 and 175.400 to capture all the relevant characteristics that would qualify a vessel as having an overnight passenger accommodation space. In this interim rule, our existing definition for “overnight accommodation” would apply with the qualifier “for passengers,” to capture only vessels with passenger overnight accommodation spaces and exclude vessels that only have crew overnight accommodation spaces. The existing definition of “overnight accommodation” includes an accommodation space for use by passengers that has one or more berths, including beds or bunks, for passengers to rest for extended periods. Staterooms, cabins, and berthing areas are normally overnight accommodation spaces. Overnight accommodations do not include spaces that contain only seats, including reclining seats. The term used in this interim rule, “Overnight accommodations for passengers,” will include all of these spaces that would normally be considered an overnight accommodation and is consistent with other usages of this phrase in Subchapters K and T. The Coast Guard adopts similar nomenclature changes to terms in 46 U.S.C. 3306(n) to be more technically precise or to align with industry and regulatory usage of the terms. We explain the differences in terminology in the following Discussion of the Rule section.

In general, the interim rule adds the following requirements to 46 CFR subchapters T and K for vessels (that are not ferries) that operate on a Coastwise or Oceans route or have overnight accommodations for passengers. These vessels must:

1. Install interconnected fire detection systems in all spaces where passengers and crew have routine access, including dining areas, sleeping quarters, and lounges;

2. Install portable fire extinguishers on “existing vessels” so that they meet the same current regulatory requirements for “new vessels”;

3. Develop safe handling procedures for the operation and storage of potentially hazardous items such as rechargeable batteries; and

4. Develop crew firefighting and emergency egress training.

In addition, vessels regulated under Subchapters K and T that are not ferries and have overnight accommodations for passengers must also:

1. Have two unobstructed means of escape that are not located directly above, or dependent on, a berth;

2. Ensure that means of escape arrangements onboard “existing vessels” meet the same current regulatory requirements outlined for “new vessels”;

3. Install and use a monitoring device to ensure the wakefulness of the required night watchmen;

4. Conduct passenger emergency egress drills; and

5. Post a passenger safety bill (that includes an emergency egress plan) in passenger accommodation spaces.

Table 1, “Summary of Changes and 46 CFR Subchapters and Sections Affected” provides a list of 11 categories of changes, as well as summaries of the changes, and a list of the affected subchapters and sections. After the table, we provide a detailed explanation of the changes in each category.

The statute defines “covered small passenger vessel,” but, because the term “cover(ed)” is utilized already throughout Subchapters T and K to mean something unrelated, utilizing “covered small passenger vessel” could be misleading. Instead, the interim rule adds statements to the applicability sections in 46 CFR Subchapters K (§ 114.110) and T (§ 175.110) to identify the types of SPVs that must meet the new requirements. These statements of applicability capture all the “covered small passenger vessels” identified in the statute. For each applicability statement, we include a list of the specific regulatory sections that those types of vessels must comply with.

In accordance with the definition of covered SPVs in 46 U.S.C. 3306(n)(5), a vessel to which Subchapter K or T applies, irrespective of build date, must meet the listed general fire safety requirements if it is not a ferry; and (1) has overnight accommodations for passengers; or (2) is operating on a Coastwise or Oceans route. The fire safety requirements in this interim rule are substantively the same in each Subchapter. The general fire safety requirements are listed in §§ 118.400(d), 118.500, 122.364, and 122.420(b) for vessels regulated under Subchapter K and in §§ 181.405, 181.450, 181.500, 185.364, and 185.420(b) for vessels regulated under Subchapter T.

In addition to the general requirements, SPVs that have overnight accommodations for passengers will be required to meet additional fire safety requirements, as mandated by 46 U.S.C. 3306(n)(3)(B). For Subchapter K, SPVs with overnight accommodations for passengers, irrespective of build date, will be required to meet the additional requirements in revised §§ 116.115(c), 116.500(o), 122.410(b), 122.507, and 122.515. SPVs with overnight accommodations for passengers, irrespective of build date, regulated under Subchapter T will have to meet the additional requirements in revised §§ 177.115(c), 177.500(n), 185.410(b), 185.507, and 185.515. These additional requirements are discussed later in this preamble, and are substantively the same in each subchapter.

Section 3306(n)(5)(B) states that the regulations do not apply to ferries or fishing vessels as those terms are defined in 46 U.S.C. 2101. As such, the new requirements implemented by this interim rule do not apply to ferries or fishing vessels. Under the statutory authorities and this interim rule, SPVs inspected under Subchapters K or T engaged in passenger vessel operations on a fishing excursion does not meet the definition of a “fishing vessel” in 46 U.S.C. 2101.

This interim rule also adds definitions to Subchapter T for the terms “listed” and “Nationally recognized testing laboratory or NRTL.” Both definitions will apply to the new requirements in § 181.450 for interconnected fire detection and alarm systems. In that section, we require an interconnected detection and alarm system to consist of multiple-station smoke detectors listed by an NRTL, or independent laboratory accepted by the Commandant. The definition of “listed” would help the reader identify what types of materials or equipment are acceptable under the regulations. The definition of “NRTL” will help the reader identify the organization as one that is recognized by the Occupational Safety and Health Administration.

This interim rule makes several editorial changes to update paragraph numbering from the addition of new regulatory text. All affected paragraphs that have been redesignated by this interim rule are listed in Table 1 of this preamble, “Summary of Changes and 46 CFR Subchapters and Sections Affected.” These editorial changes have no substantive impact on the public or affected owners or operators of SPVs.

Existing regulations in 46 CFR 122.410 and 185.410 require an owner of a vessel carrying overnight passengers to have a suitable number of members of the crew patrol throughout the vessel during nighttime. Under 46 U.S.C. 3306(n)(3)(A)(iii), we must issue requirements for the installation and use of monitoring device(s) to ensure the wakefulness of the required night watch for SPVs with overnight accommodations for passengers. Sections 122.410 and 185.410 already require these vessels to have a suitable number of watchmen patrol throughout the vessel during the nighttime. The purpose of having a required night watch is to always have someone monitoring the safety and security of the vessel, who can alert the crew and passengers if there are any emergencies on board, such as fire, flooding, vessel collisions, or other hazards.

In new paragraphs 122.410(b) and 185.410(b), this interim rule requires the following for operators of vessels regulated by Subchapter T or K that have overnight accommodations for passengers. Vessels already in service must submit plans to the cognizant OCMI, in accordance with existing §§ 115.700 or §§ 176.700, for the installation and use of monitoring device(s) to ensure the wakefulness of the watchmen. Vessels with a keel laid date after March 28, 2022, must include plans for the monitoring device(s) within the plan submissions required in §§ 116.202 or 177.202. The Coast Guard will work with the vessel operators to determine a reasonable implementation schedule once the plans are accepted. This plan submission requirement will be effective 90 days after publication of this interim rule. The main goal for requiring use and installation of the monitoring device is to ensure the required watchmen stay awake while monitoring the vessel for emergencies.

The monitoring devices must also satisfy the following three requirements, which we have incorporated into the regulatory text. First, the monitoring devices must alert the crew in the case of an unresponsive watchstander. This requirement will ensure that, if a watchman becomes unresponsive, the crew will be alerted to check on the unresponsive watchman and provide a continuous safety watch throughout the night. Second, the monitoring device must remain operable throughout the nighttime watch, to coincide with the required patrol in §§ 122.410(a) and 185.410(a), which requires “watchmen patrol throughout the vessel during the nighttime.” Third, the monitoring device(s) must be arranged to ensure proper coverage of the passenger accommodation spaces, common areas, and spaces with potential fire hazards. We are requiring the device(s) be arranged with proper coverage around the vessel to ensure that those assigned with a watchkeeping responsibility remain alert while conducting frequent rounds of the vessel.

Per existing §§ 115.800(a) and 176.800(a), “Inspection standards”, the cognizant OCMI may inspect the vessel's monitoring devices for compliance with the subchapter and, where the standard is not set by these updated regulations, in accordance with standards acceptable to the cognizant OCMI as good marine practice.

For implementing the monitoring device(s) requirement, we considered requiring systems similar to the International Electrotechnical Commission standard, IEC 62616, “Maritime navigation and radio communication equipment and systems—Bridge navigational watch alarm system (BNWAS).” The IEC 62616 standard specifies the minimum performance requirements, technical characteristics, methods of testing, and required test results for a BNWAS, as required by the International Convention for the Safety of Life as Sea (SOLAS). SOLAS regulation V/19.2.2.3 requires that BNWAS must be in operation whenever the ship is underway at sea. The BNWAS monitors bridge activity and detects operator disability that could lead to marine accidents. According to the IEC 62616 standard, the system monitors the awareness of the watchman. If they become incapable of performing their watch duties, a series of indications and alarms alert first the watchman and then, if they are not responding, alert the Master or another qualified watchman. Under IEC 62616, the BNWAS may be integrated into other equipment, such as radar or Electronic Chart Display and Information System, etc. A BNWAS is just one example of a device that would satisfy the requirements of §§ 122.410(b) and 185.410(b). Further, systems such as a personnel alarm, as required by 46 CFR 62.50-20(b) for vessels regulated under Subchapter F, would also be considered as meeting the requirements of §§ 122.410(b) and 185.410(b). These two systems are just examples, and are not intended as an all-inclusive list of devices that could satisfy the requirements of §§ 122.410(b) and 185.410(b). However, for the purpose of this interim rule, we are initially allowing operators the flexibility to choose a system that works for them in meeting the requirements set forth in 122.410(b) and 185.410(b), subject to cognizant OCMI or Marine Safety Center approval. We welcome comments providing information as to the types of wakefulness monitoring systems or procedures that are preferable or already in use by these vessels, if any.

Title 46 CFR 181.450(c) lists the requirements for independent modular smoke detecting units in overnight accommodation spaces on a vessel. To align with the requirements of 46 U.S.C. 3306(n)(3)(A)(ii), vessels regulated by Subchapter T or K that have overnight accommodations for passengers or operate on a Coastwise or Oceans route, irrespective of build date, must now have interconnected fire detection systems.

The text in 46 U.S.C. 3306(b)(3)(A)(ii) requires interconnected fire detection equipment “in all areas on board the vessel where passengers and crew have access, including dining areas, sleeping quarters, and lounges.” The Coast Guard uses the term “interconnected fire detection systems” because it is not likely or logical that the fire detection equipment will be interconnected; it is the system that is interconnected. This is a nomenclature change we made to be more precise with the language used in the regulations. We have interpreted the statutory language, “all areas where passengers and crew have access” to include enclosed spaces such as accommodation spaces and machinery spaces that would be routinely occupied by passengers or crew. While the statute says, “all areas on board the vessel where passengers and crew have access . . .” the Coast Guard does not interpret this to mean only spaces where crew and passengers both have access; we interpret this to mean spaces where either have access. Otherwise, machinery spaces and crew kitchens with heat sources and fire risks would not be included in the requirement. That interpretation would be inconsistent with the intent of the 2020 CGAA, to have the interconnected fire detection systems in all areas onboard.

This interim rule does not require interconnected fire detection systems on weatherdecks because fire detection equipment is not effective above decks where there may be no ceilings and smoke disperses before it can be detected. In addition, we do not include small spaces that open to spaces with fire detection equipment, such as closets, in the meaning of “areas where passengers and crew have routine access,” where it is impractical or there are no potential heat sources to justify requiring an interconnected fire detection system therein.

The regulations in §§ 118.400(d) and 181.405(c) will now require an interconnected fire detection system that meets the existing requirements in § 181.450 in all enclosed areas to which passengers and crew have routine access, including accommodation spaces and machinery spaces. Now that the statute requires all SPV fire detection systems to be interconnected, we changed the type of the detection system described in § 181.450 from “Independent modular smoke detecting units” to “Interconnected fire detection system”. Section 181.450 will continue to require that the fire detection system used by the vessel must be listed by an NRTL or independent laboratory, as type-approved to meet Underwriter Laboratories (UL) standard UL 217, “Single and Multiple Station Smoke Detectors,” already incorporated by reference in § 175.600 and 181.450.

In Subchapter K's interconnected fire detection system requirements, in new § 118.400(d), we opt to cross-reference the existing Subchapter T standards in § 181.450 that apply to interconnected fire detection systems, rather than duplicating the standards in Subchapter K. All SPVs that either operate on a Coastwise or Oceans route or have overnight accommodations for passengers, irrespective of build date, must have an interconnected fire detection system that meets the requirements in § 181.450.

Existing §§ 118.500 and 181.500 list the requirements for number, type, and location of portable fire extinguishers applicable to “new vessels” (defined in §§ 114.400 and 175.400). These sections list the minimum number of fire extinguishers a vessel must have and also indicate that the Officer in Charge, Marine Inspection (OCMI) may require more than the minimum number listed. Paragraph (n)(3)(A)(vii) of 46 U.S.C. 3306 requires the Coast Guard to issue regulations for increased fire suppression systems (including additional fire extinguishers) in unmanned areas with machinery, or areas with other potential heat sources. Sections 118.115 and 181.115 previously allowed “existing vessels” (defined in §§ 114.400 and 175.400) to comply with the fire protection regulations that were applicable to the vessel on March 10, 1996.

This interim rule requires all vessels regulated by Subchapter T or K that have overnight accommodations for passengers or are operating on a Coastwise or Oceans route, regardless of build date, to comply with the portable fire extinguisher regulations in §§ 118.500 or 181.500. The new applicability paragraphs §§ 114.110(e) and 175.110(c) indicate the specific regulations that these SPVs must meet, including the fire extinguisher regulations in §§ 118.500 or 181.500. These regulations were previously only applicable to “new vessels.” This change will directly affect “existing vessels” that previously complied with portable fire extinguisher regulations applicable to the vessel on March 10, 1996, but do not meet the regulation standards for “new vessels.” All SPVs regulated under Subchapters T and K that have overnight accommodations for passengers or are operating on a Coastwise or Oceans route will be required to comply with the portable fire extinguisher minimum numbers and type requirements in §§ 118.500 or 181.500 no later than 1 year after publication of this interim rule. The Coast Guard invites public comment to determine if requirements for additional portable fire extinguishers beyond what is currently required in §§ 118.500 or 181.500 should be required to facilitate proper fire protection.

Additionally, these SPVs will be subject to the cognizant OCMI's discretion in requiring additional portable fire extinguishers. In requiring additional portable fire extinguishers, the OCMI considers multiple factors, including such vessel characteristics as the size, passenger capacity, egress plans, and layout. This OCMI discretion already exists in 118.500(a) and 181.500(a). Therefore, we expect OCMIs to use the same criteria they apply to new vessels to existing vessels in determining an acceptable minimum amount of fire extinguishers in the spaces listed. The fire extinguisher requirements in §§ 118.500 and 181.500 cover all types of areas on the vessel, including minimum fire extinguisher requirements for unmanned areas with machinery, and areas with potential heat sources, as required by the statute.

In this interim rule, the Coast Guard considered requiring fixed firefighting systems to address the requirements of 46 U.S.C. 3306(n), but decided instead to make the standards for the number, type, and location of portable extinguishers onboard new vessels applicable to both new and existing vessels. When the Coast Guard revised the regulations for small passenger vessels in 1996, the requirements for fixed fire suppression systems were retroactively applied to existing vessels of combustible construction (See 61 FR 864, Jan. 10, 1996). These higher risk vessels have been required to install fixed suppression systems since March 1999. However, under the 1996 regulation, existing vessels were not required to comply with requirements for the number, type, and location of portable extinguishers. At present, there is insufficient data to justify requiring the additional cost and complexity of fixed systems on existing vessels of non-combustible construction. Instead, under the interim rule, the Coast Guard is requiring existing vessels to meet the current requirements for portable fire extinguishers, which meets the intent of 46 U.S.C. 3306(n). At the same time, the interim final rule will allow for public comment regarding requirements for portable and fixed fire suppression systems onboard these vessels.

Currently, SPVs are required to conduct crew firefighting drills and training in accordance with §§ 122.524 and 185.524. Per the mandate in 46 U.S.C. 3306(n)(3)(A)(i), this interim rule adds additional crew firefighting training requirements for vessels regulated by Subchapter T or K that have overnight accommodations for passengers or are operating on a Coastwise or Oceans route. These additional training requirements will promote crew member firefighting proficiency, while requiring regular egress training for vessel crew members.

In new paragraphs 122.420(b) and 185.420(b), this interim rule adds required crew training in the use and location of firefighting equipment and general firefighting knowledge, including a list of knowledge and training aspects that must be covered. Additionally, this interim rule adds a requirement to conduct emergency egress training for all members of the crew, to be conducted at least monthly while such members are employed on board the vessel, and each time someone joins the crew.

The new provisions in §§ 122.420(b) and 185.420(b) will also cross-reference the existing requirements for the vessel master or operator to conduct the firefighting drills and training in §§ 122.524 and 185.524, respectively, including identifying fire location and fire type. The additional general firefighting knowledge requirements in §§ 122.524 and 185.524 already apply to all vessels regulated under Subchapter K and Subchapter T, respectively. The purpose of adding these cross references to §§ 122.420(b) and 185.420(b) is to clearly specify in one place all the firefighting crew training requirements for SPVs that have overnight accommodations for passengers or are operating on a Coastwise or Oceans route.

46 U.S.C. 3306(n)(3)(A)(vii) requires regulations for conducting passenger emergency egress drills prior to the vessel beginning each excursion. New §§ 122.507 and 185.507 of this interim rule require owners or operators of SPVs that have overnight accommodations for passengers to conduct emergency egress drills with the new passengers prior to the vessel getting underway. If the vessel does not get underway, and if passengers do not remain overnight on the vessel, the vessel operator would not be required to complete the passenger emergency egress drills. The statute requires the egress drills be performed before the vessel begins an “excursion,” which we have interpreted to mean anytime a vessel gets underway, or anytime passengers remain overnight on the vessel. Per this definition, a vessel operator that has passengers remain onboard overnight is required to conduct the passenger emergency egress drills, regardless if the vessel leaves the pier. Where vessels with overnight passengers remain pierside for various reasons, such as inclement weather or as part of the normal practice, emergencies can still happen on these excursions. Requiring the emergency egress drills for vessels with overnight passengers that remain pierside supports Congress's safety intent of performing the passenger egress drills on these vessels.

For passengers assigned to an accommodation space, this interim rule requires the emergency egress drills must be performed from that assigned space. If passengers are not assigned an accommodation space, the emergency egress drill must be performed from another reasonable accommodation space, which the master of the vessel will have discretion to choose. We included this contingency for when passengers are not assigned accommodation space for situations where the vessel has overnight accommodation space for passengers but is not getting underway with passengers. In these cases, the master of the vessel is still required to perform an emergency egress drill with the passengers because the 46 U.S.C. 3306(n)(5) definition of “covered small passenger vessel” applies to any SPV that has overnight passenger accommodations on the vessel and does not distinguish whether or not they are actually used overnight by passengers.

Section 3306(n)(3)(A)(vii) requires the crew to conduct an egress drill from all areas where passengers have access. However, strict application of the statute would lead to an overly redundant and burdensome process, with multiple drills being conducted from every accessible space on the vessel, and only a nominal increase in safety. Instead, we will require passengers to undergo one emergency egress drill from their assigned accommodation space, or, if not assigned an accommodation space, from another reasonable accommodation space chosen by the vessel master.

The emergency egress drills are a supplement to any applicable passenger safety requirements under 46 CFR parts 122 and 185 or SOLAS. In some cases, the emergency egress drill can be done concurrently with other required safety drills, as long as the passengers perform the emergency egress drill starting from the passenger's assigned accommodation spaces before beginning an excursion with new passengers. Most relevant, §§ 122.506(e) and 185.506(e) require SPVs on a voyage of more than 24 hours duration request that passengers don life jackets and go to the appropriate embarkation station during the safety orientation. A vessel operator could satisfy §§ 122.506(e) or 185.506(e) and the new emergency egress drill requirement by performing the emergency egress drill from the passenger's assigned overnight accommodation space, meeting at the embarkation station, and donning life jackets. This emergency egress drill must be conducted before the vessel begins an excursion with new passengers.

Paragraphs 3306(n)(3)(A)(viii) & (B) require providing passengers a copy of the emergency egress plan for the vessel on vessels that have overnight accommodation spaces for passengers. In Subchapters K and T, the Coast Guard refers to these plans as passenger safety bills. This interim rule requires passenger safety bills to be posted in each cabin or stateroom, and in passenger accommodation spaces. Passenger safety bills must include the following information: (1) The embarkation station and the number and location of survival craft to which each passenger is assigned, if applicable; (2) the fire and emergency signal and the abandon ship signal; (3) the essential action that must be taken in an emergency; and (4) the location of immersion suits and illustrated instructions on the method of donning the suits, if immersion suits are provided. The Coast Guard determined that including this emergency egress information will increase the passenger safety bill's usefulness to passengers during an emergency.

These passenger safety bill requirements will be in § 122.515 and new § 185.515. Previously, passenger safety bill requirements in § 122.515 only applied to vessels more than 65 feet with more than 49 overnight passengers. The requirements in § 122.515 will now apply to all vessels regulated under Subchapter K with overnight accommodations spaces for passengers, regardless of length of vessel or number of overnight passengers.

The Coast Guard considered requiring masters of affected vessels to distribute copies of passenger safety bills to passengers. We did not choose this option as it is unrealistic to expect passengers to have the safety bills in their possession at all times in case of an emergency. Posting the passenger safety bills in accommodation spaces and staterooms ensures the emergency egress plans are available for viewing from multiple places on the vessel in an emergency.

The regulations for construction and arrangement in 46 CFR parts 116 and 175 are currently applicable to “new vessels” (defined in §§ 114.400 and 175.400). “Existing vessels” (also defined in §§ 114.400 and 175.400) have the opportunity to comply with regulations that were applicable on March 10, 1996. Section 3306(n)(3)(A)(v) of 46 U.S.C. requires SPVs with overnight accommodations for passengers to have two independent avenues of escape from general areas accessible to passengers. New applicability provisions in §§ 116.115(c) and 177.115(c) will require vessels regulated by Subchapter T or K that have overnight accommodations for passengers, regardless of build date, to comply with the requirements for means of escape in §§ 116.500 and 177.500. Requiring compliance with §§ 116.500 and 177.500 will ensure that all existing vessels with overnight accommodations for passengers will maintain at least two independent means of escape that allow for free and unobstructed egress from any point in a vessel to an embarkation station for SPVs regulated under Subchapter T, or to an embarkation station or area of refuge for SPVs regulated under Subchapter K.

Specifically, §§ 116.500(b) and 177.500(b) require two means of escape that must be widely separated and, if possible, at opposite ends or sides of the space to minimize the possibility of one incident blocking both escapes. Although the terms “if possible” and “minimize the possibility” provide a level of ambiguity to the regulations, the notion of having two means of escape widely separated at opposite ends of the space, where a blockage of one will not result in the blockage of both escapes, is enforced strictly. The term “if possible” in relation to placement of the means of escape provides a level of discretion to the Coast Guard to allow for the two independent means of escape to exist in the same space without being on absolute opposite ends of the space. However, the Coast Guard will ensure, in its judgement, that the means of escape are placed as widely apart as possible to minimize the possibility that one incident could block both means of escape. Current regulations under Subchapter T define a “means of escape” as “a continuous and unobstructed way of exit travel from any point in a vessel to an embarkation station.” For vessels inspected under Subchapter K, a “means of escape” is “a continuous and unobstructed way of exit travel from any point in a vessel to an embarkation station or area of refuge.” ( See 46 CFR 114.400 and 175.400). Regardless of how widely spaced the means of escape are from each other in a single space, the Coast Guard will ensure there are two independent means of escape that prevent one incident blocking both means of escape.

Additionally, this interim rule will add a new provision prohibiting avenues of escape that are located directly above, or dependent on, a berth for vessels with overnight accommodations for passengers. Section 3306(n)(3)(A)(v)(III) mandates that the required two independent avenues of escape and the door, hatch, or scuttle are not located directly above or dependent on a berth. This mandated requirement is implemented in revised §§ 116.500(o) and 177.500(n) only for vessels with overnight accommodations for passengers.

Under 46 U.S.C. 3306(n)(3)(A)(vi), all vessels regulated by Subchapters K or T that have overnight accommodations for passengers, or are operating on a Coastwise or Oceans route, will be required to take extra precautions in handling, storing, and operating flammable items such as rechargeable batteries. 3 New §§ 122.364 and 185.364 require potentially hazardous items used for commercial purposes to be handled, stored, and operated in a way that mitigates the risk of hazardous conditions. In addition, operators should read the Coast Guard's Office of Commercial Vessel Compliance (CG-CVC) Policy Letter 20-03, “Carriage of Lithium-Ion Batteries on Small Passenger Vessels,” issued on October 29, 2020 (or any subsequent versions), to better understand how to identify signs of damage to lithium ion batteries, how to extinguish small lithium-ion battery fires, and how to avoid unsafe practices or improper installations onboard. 4 A copy of the Policy Letter 20-03 will be posted to the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard considered implementation schedules while balancing expected or potential impacts and vessel and passenger safety concerns. In the Subchapters K and T applicability sections, 114.110(g) and 175.110(e), we list the dates of when each regulatory requirement must be implemented. These dates are the earliest that the Coast Guard would enforce the requirements. We opt for a staggered implementation schedule, where the more extensive changes are given more time to implement, and the simpler changes are given 90 days to implement.

The new requirements for means of escape in §§ 116.115(c), 116.500(o), 177.115(c), and 177.500(n) are deemed the most logistically challenging. Relevant vessel owners could expect to allocate time and resources for making appropriate vessel conversions. Vessel owners may need to schedule a drydocking period with a boatyard to conduct conversions necessary to meet the means of escape requirements in these sections. Therefore, we allow vessel owners 2 years to implement those requirements; that is, by December 27, 2023.

The regulatory changes for fire protection equipment in 46 CFR parts 118 and 181 will require equipment to be procured and installed onboard. The Coast Guard recognizes that required equipment may not be readily available, so we have allowed vessel owners 1 year, until December 27, 2022, to implement the requirements in §§ 118.400(d), 118.500, 181.405, 181.450, and 181.500.

Vessel owners will have 90 days, until March 28, 2022, to implement the remaining requirements of this interim rule. These requirements include those listed in §§ 122.364, 122.420(b), 116.115(c), 122.410(b), 122.507, 122.515, 185.364, 185.410(b), 185.420(b), 185.507, and 185.515.

Lastly, §§  122.507(b), 185.507(b), and 185.515(a), and the addition of a paragraph to §  122.515, which contain collections of information that have not yet been approved by OMB, are delayed indefinitely. These sections are related to the requirements for posting a passenger safety bill in accommodation spaces, recording passenger egress drills, and recording crew firefighting and emergency egress training. The Coast Guard will publish a document in the Federal Register announcing the effective dates of those sections if OMB approves the new collections of information.

Paragraph (n)(4)(B) of 46 U.S.C. 3306 exempts the requirements in this interim rule from the economic analysis requirements in the Regulatory Flexibility Act and Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review). The Office of Management and Budget (OMB) has not reviewed this rule under section 3(f) of Executive Order 12866 because this interim rule is exempt from the requirements of Executive Order 12866.

This interim rule will impose a cost to the SPV industry, much of which is made up of small businesses. While the Coast Guard did not conduct a benefit cost analysis, the Coast Guard recognizes that there may be impacts to small business. There will be a cost burden to update fire and smoke detection equipment and to add additional independent avenues of escape (for instance, egress) on many SPVs, with a potential associated loss of passenger capacity on some SPVs. Additional costs will be associated with crew training and competency, passenger egress drills, monitoring devices to ensure wakefulness of the night watch, and flammable item storage. The Coast Guard will consider all cost-related public comments at the final rule phase and not for this interim final rule.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This interim rule calls for a change to an existing collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. The relevant collection of information is titled “Small Passenger Vessels—Title 46 CFR Subchapters K and T,” which is assigned OMB Control Number 1625-0057. The Coast Guard uses the information in this collection to ensure compliance with Subchapter K and T regulations for the safety, design, construction, alteration, repair and operation of small passenger vessels.

As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Title: Small Passenger Vessels—Title 46 CFR Subchapters K and T.

OMB Control Number: 1625-0057.

Summary of the Collection of Information: The information requirements are necessary for the proper administration and enforcement of the safety of applicable SPVs affected by this interim rule. The new requirements of this interim rule affect SPVs (under 100 gross tons) that carry more than six passengers and have overnight accommodations for passengers or operate on a coastwise or oceans route. The Coast Guard will require the operators of these vessels to: (1) Post copies of the passenger safety bill for all passengers in all passenger staterooms and cabins and passenger accommodation spaces; (2) log the occurrence of passenger emergency egress drills; and (3) log the occurrence of crew marine firefighting and emergency egress training. The interim rule requirement for vessel operators of SPVs with overnight accommodations for passengers to submit plans to the USCG for use and installation of night watchmen monitoring devices would also increase the burden estimates for the existing collections covered by plan approval sections §§ 115.700, 116.202, 176.700 and 177.202.

Need for Information: Under the authority of 46 U.S.C. 3305 and 3306, the Coast Guard is prescribing regulations for the design, construction, alteration, repair and operation of SPVs to secure the safety of individuals and property on board. The Coast Guard must issue interim fire safety requirements for these vessels per 46 U.S.C. 3306(n), requiring masters of SPVs to provide passengers copies of emergency egress plans and to conduct passenger emergency egress drills before every excursion, and conduct crew marine firefighting and emergency egress trainings monthly and every time a new crewmember joins the crew. Plan approvals for the night watchmen monitoring devices is needed to ensure the devices will perform adequately to ensure the wakefulness of the night watch.

Proposed Use of Information: The Coast Guard is requiring vessel operators to post copies of the passenger safety bill in all passenger staterooms and passenger accommodation spaces for the passengers' access and use before and during an emergency. Additionally, the requirement for vessel operators to log the occurrence of passenger emergency egress drills and crew firefighting and emergency egress training will be used by the Coast Guard to inspect vessel operators' compliance with the requirements. The plans for the night watch monitoring devices will be used to ensure compliance with the requirement to installation and use of the devices meet the minimum standards in the regulations.

Description of the Respondents: Owners and operators of SPVs (under 100 gross tons) that carry more than six passengers with overnight accommodations for passengers.

Number of Respondents: The current OMB-approved number of respondents remains unchanged.

Frequency of Response: The log entry for passenger egress drills must be completed prior to every excursion. The log entry for the crew firefighting and emergency egress training is expected to occur once a month and every time a new crew member joins the crew. The posting of the passenger bill will be a one-time posting requirement per vessel. The plan submission for the night watch monitoring devices will be a one-time submission requirement per vessel.

Burden of Response: The burden of response varies per activity. The log entry at the completion of a passenger egress drill takes 2 minutes to complete prior to every excursion. The log entry at the completion of the crew firefighting training takes 2 minutes to complete and is expected to occur an average of 18 times per year, per applicable vessel. The posting of a passenger safety bill takes 1 minute per activity with 10 activities per Subchapter K vessel and 6 activities per Subchapter T vessel, and we expect each vessel to post passenger safety bills only once. The submission of a vessel plan takes 30 minutes per activity with an estimated 370 submissions.

Estimate of Total Annual Burden: The crew emergency egress training will increase the annual burden by 676 hours. The new passenger egress drills will increase the annual burden by 611 hours. The posting of additional passenger safety bills will increase the annual burden by 46 hours. The one-time submission of the night watch monitoring device plan submission will increase the annual burden by 185 hours. This rulemaking will increase the estimated annual burden by 1,518 hours.

As required by 44 U.S.C. 3507(d) and 5 CFR 1320.10, we will submit a copy of this interim rule to OMB for its review of the collection of information.

We are soliciting comments on the revisions to the collection of information. Comments may be submitted in accordance with the Public Participation and Request for Comments section in this preamble.

You are not required to respond to a collection of information unless it displays a currently valid OMB control number. OMB has not yet completed its review of this updated collection. Therefore, we are not making §§ 122.507(b), a new paragraph in 122.515, 185.507(b), and 185.515(a) effective until OMB completes its action on our revised information collection request. We will publish a Federal Register document describing OMB's action and, if OMB grants approval, notifying you when §§ 122.507(b), the new paragraph in 122.515, 185.507(b), and 185.515(a) take effect.

A rule has implications for federalism under Executive Order 13132 (Federalism) if it has a substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this interim rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis follows.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled that all of the categories covered in 46 U.S.C. 3306, (design, construction, alteration, repair, maintenance, operation, equipping), in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. See the Supreme Court's decision in United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000). This interim rule implements mandatory fire safety requirements for SPVs prescribed by 46 U.S.C. 3306(n). Therefore, because the States may not regulate within these categories, this rule is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this rule has implications for federalism under Executive Order 13132, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. The Coast Guard discusses the requirements and some of the implications of this interim rule elsewhere in the preamble. This interim rule is exempt from economic analysis requirements in the Regulatory Flexibility Act and Executive Orders 12866 and 13563. Hence, this rulemaking does not include a regulatory analysis. Additionally, the interim requirements implemented by this rule are required by statute and are not discretionary.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This rule will not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule uses one voluntary consensus standard, UL 217, “Single and Multiple Station Smoke Detectors.” The sections that reference this standard and the locations where this standard is available are listed in 46 CFR 175.600 and 181.450(a)(1). UL 217 is a standard for type-approved multiple-station smoke detectors, and is already incorporated by reference in these sections.

The Director of the Federal Register has approved the material in 46 CFR 181.450(a)(1) for incorporation by reference under 5 U.S.C. 552 and 1 CFR part 51. Copies of the material are available from the sources listed in 46 CFR 175.600.

Consistent with 1 CFR part 51 incorporation by reference provisions, this material is reasonably available. Interested persons have access to it through their normal course of business, may purchase it from the organization identified in 46 CFR 117.600, or may view a copy by means we have identified in that section.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. This rule is categorically excluded under paragraph L56 and L57of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev 1. Paragraph L56 pertains to regulations concerning the training, qualifying, licensing, and disciplining of maritime personnel and L57 pertains to regulations concerning manning, documentation, admeasurement, inspection, and equipping of vessels. This rule involves adding requirements such as fire detection and suppression systems, avenues of escape, egress drills, marine firefighting training, and the handling of flammable items such as rechargeable batteries.

The Coast Guard views public participation as essential to effective rulemaking, and will consider all comments and material received on this interim rule during the comment period. Your comment can help shape fire safety final rules for SPVs called for by 46 U.S.C. 3306(n). If you submit a comment, please include the docket number for this rule, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2021-0306 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this interim rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this interim rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the interim rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Public meeting. We are not planning to hold a public meeting but will consider doing so if we determine from public comments that a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR parts 114, 116, 118, 122, 175, 177, 181, and 185 as follows:

PHMSA issues this interim final rule (IFR) to satisfy mandates within the PIPES Act of 2016 (Pub. L. 114-183) and the PIPES Act of 2020 (Pub. L. 116-260) to expand application of PHMSA's integrity management (IM) requirements to approximately 2,905 additional miles of hazardous liquid and carbon dioxide pipelines  1 located within or that could affect the Great Lakes, coastal beaches, or “certain coastal waters.” The IFR will provide enhanced protection from hazardous liquid pipeline accidents similar to the 2010 Marshall, MI and the 2015 Refugio Beach, CA oil spills, and ensure that events like the anchor strike that damaged Enbridge's Line 5 in the Straits of Mackinac are promptly identified and remediated before they result in environmental damage.

Hazardous liquid pipelines that could affect a high consequence area (HCA) are subject to additional safety requirements. Specifically, such pipelines must be included in an IM program. An HCA is defined in 49 CFR 195.450 as a commercially navigable waterway, a high population area, an other populated area, or an unusually sensitive area (USA) as defined in § 195.6. Section 195.6 identifies two types of USAs, “USA drinking water resources” and “USA ecological resources.” Every USA is, therefore, also an HCA. Under § 195.452, an operator of a hazardous liquid pipeline that is located in a USA, or in an area where a release could affect a USA, is required to comply with IM requirements. Section 19 of the PIPES Act of 2016 amended 49 U.S.C. 60109(b)(2) and directed PHMSA to revise the definition of a USA in § 195.6(b) to explicitly state that the Great Lakes, coastal beaches, and marine coastal waters are USA ecological resources. Congress further clarified this mandate in Section 120 of the PIPES Act of 2020 (division R of the Consolidated Appropriations Act of 2021, Pub. L. 116-260). With this clarification, the PIPES Act of 2020 introduced and defined the term “certain coastal waters” to replace the undefined term “marine coastal waters.” Congress defined “certain coastal waters” as the “territorial sea of the United States; the Great Lakes and their connecting waters; and the marine and estuarine waters of the United States up to the head of tidal influence.” Furthermore, Congress defined the term “coastal beach” as “any land between the high- and low-water marks of certain coastal waters.” This IFR incorporates these terms and the statutory definitions into § 195.6, as directed by Congress.

PHMSA maintains a map of HCAs, excluding proprietary or security sensitive information, in the National Pipeline Mapping System (NPMS) pursuant to 49 U.S.C. 60132(d). PHMSA intends to map “certain coastal waters” and “coastal beaches” as a single data layer within the NPMS. PHMSA will generate this map based on a combination of geographic information system (GIS) data from the National Oceanic and Atmospheric Administration (NOAA) Clean Water Act  2 dataset, U.S. Environmental Protection Agency (EPA) Estuary Data Mapper, 3 and the NOAA Sea Level Rise Viewer. 4 Each of these datasets are generated by expert scientific agencies of the Federal government and are available on the internet for public viewing. These datasets are further described in section VI of this IFR. PHMSA seeks comments on the use of these datasets to represent the location of the statutory definitions of “certain coastal waters” and “coastal beaches” in the NPMS.

While the primary effect of the IFR is expanding the hazardous liquid pipeline mileage subject to IM program requirements, defining new USAs also affects the requirements for certain pipelines in rural areas. Proximity to a USA also determines if an onshore rural gathering line is a regulated rural gathering line subject to safety requirements described in § 195.11(b). Additionally, a pipeline categorized as a Category 3 rural low-stress pipeline could become a Category 1 or Category 2 pipeline if it is located within 1/2 mile of a USA.

PHMSA is not changing the definition of “offshore” in §§ 192.3 or 195.2 as a part of this IFR. Those sections define “offshore” to mean beyond the line of ordinary low water along that portion of the coast of the United States that is in direct contact with the open seas and beyond the line marking the seaward limit of inland waters. The new USAs defined in § 195.6 do not affect the definition of “offshore” in §§ 192.3 or 195.2. Even if data used to map the new USAs refer to “offshore” areas as defined or designated by a separate statute, such as the Submerged Lands Act (43 U.S.C. 1301 et seq. ), the regulatory definition of “offshore” in §§ 192.3 and 195.2 is distinct from these other statutes and will remain unchanged. In other words, the definitions of “coastal beach” and “certain coastal waters” exist independently of the definition of “offshore” in §§ 192.3 or 195.2. A pipeline could be located within certain coastal waters and be either “onshore” or “offshore” under §§ 192.3 and 195.2. Accordingly, altering the definition of “offshore” is beyond the scope of this IFR.

The objective of the hazardous liquid IM requirements at § 195.452 is to reduce the risks of pipeline spills in areas where a release could have significant consequences. In a series of final rules published between 2000 and 2002, PHMSA's predecessor agency, the Research and Special Programs Administration, promulgated regulations that defined HCAs and required operators to develop and implement IM programs for each hazardous liquid pipeline that could affect an HCA in the event of a release. HCAs are defined in § 195.450 and represent areas where a release could have significant adverse consequences to human health and safety, the environment, and commercial navigation. The IM requirements that operators must implement to protect HCAs are specified in § 195.452.

IM requirements for hazardous liquid pipelines were implemented in four final rules. The first final rule was “Pipeline Integrity Management in High Consequence Areas (Hazardous Liquid Operators with 500 or More Miles of Pipeline),”  5 followed by “Areas Unusually Sensitive to Environmental Damage,”  6 and “Pipeline Integrity Management in High Consequence Areas (Hazardous Liquid Operators with Less Than 500 Miles of Pipelines).”  7 PHMSA made updates to these requirements in a 2019 final rule titled “Safety of Hazardous Liquid Pipelines.”  8 These rules established a regulatory framework focused on risk identification, assessment, and mitigation. PHMSA's IM regulations require operators of pipelines located in areas where a release could affect an HCA to take additional steps to address threats to the integrity of those pipelines by operating and maintaining those pipelines in accordance with an effective IM program. These measures require operators to devote additional analysis, assessment, and remediation resources to protect HCAs from pipeline releases that could adversely affect human health and safety, cause environmental damage, and disrupt commercial navigation.

Section 195.450 of the existing hazardous liquid pipeline safety regulations defines an HCA as: (1) A commercially navigable waterway, which means a waterway where a substantial likelihood of commercial navigation exists; (2) a high population area, which means an urbanized area, as defined and delineated by the U.S. Census Bureau, that contains 50,000 or more people and has a population density of at least 1,000 people per square mile; (3) an other populated area, which means a place, as defined and delineated by the U.S. Census Bureau, that contains a concentrated population, such as an incorporated or unincorporated city, town, village, or other designated residential or commercial area; or (4) an unusually sensitive area, which is defined in § 195.6 to be a drinking water or ecological resource area that is unusually sensitive to environmental damage from a hazardous liquid pipeline release. Section 195.452(d)(2) requires operators to incorporate newly identified HCAs into their baseline assessment plans within one year from the date the area is identified, and complete a baseline assessment of any pipeline that could affect the newly identified HCA within 5 years from the date the area is so designated.

Section 195.6 defines a USA as a drinking water or ecological resource area that is unusually sensitive to environmental damage from a hazardous liquid pipeline release. The regulatory definition of USA elaborates that a drinking water resource generally refers to a source of drinking water ( e.g., a surface water intake, a source water protection area for wells, or a recharge area for a karst aquifer) for a community water system, or a non-transient, non-community water system ( e.g., a school or factory) with no adequate alternative supply of drinking water. The definition of a USA ecological resource includes areas containing one or more critically imperiled species or ecological communities; a multi-species assemblage area; a migratory waterbird concentration area; and an area containing an imperiled, threatened, endangered species, depleted marine mammal species, or an imperiled ecological community containing species with a limited range.

As described above, every USA is an HCA, and a hazardous liquid pipeline that could affect an HCA must be included in an operator's hazardous liquid IM program. Section 195.452(b) requires an operator to develop and follow a written IM program. Section 195.452(f) requires that a hazardous liquid pipeline IM program include each of the following elements:

• A process for identifying pipelines that could affect an HCA, including USAs (see §§ 195.6, 195.450, Appendix C to part 195, “Guidance for Implementation of an Integrity Management Program”);

• A plan for scheduling and performing baseline assessments (§ 195.452(c));

• An analysis of pipeline safety risks that integrates all available information about pipeline integrity and potential consequences (§ 195.452(g));

• Criteria for performing remedial action in response to pipeline integrity issues identified during assessments or other analysis (§ 195.452(h));

• A continuous process for scheduling, performing, and interpreting integrity assessments and evaluations (§ 195.452(j));

• Identification of “preventative and mitigative measures” to protect the pipeline from identified integrity threats (§ 195.452(i));

• Procedures for evaluating the effectiveness of the IM program (§ 195.452(k)); and

• A process to ensure integrity assessment results and information analysis is performed by qualified personnel (§ 195.452(f)(8)).

When an operator determines that a pipeline segment could affect an HCA, it must integrate information about that segment, including information about potential consequences, into its risk analysis and add the segment to the baseline assessment plan. The minimum data attributes operators are required to consider are listed in § 195.452(g)(1). This includes information about the pipeline itself; excavation damage threats; information about the potential impacts of a release on an HCA; and data from integrity assessments, cathodic protection surveys, patrols, and other maintenance and surveillance tasks. This analysis is used to prioritize and schedule integrity assessments and identify preventative and mitigative measures.

If a pipeline segment could affect a newly identified USA as a result of this IFR, the operator must include that segment in their IM program and periodically assess the integrity of that segment. Section 195.452(d)(2) requires an operator to add pipelines that cross or could affect new HCAs into their baseline assessment plan within 1 year of obtaining that new HCA information and complete the baseline assessment within 5 years of that date. Section 195.452(c)(1)(i) requires that the baseline assessment be done with an in-line inspection tool unless construction or operational factors make an in-line inspection impracticable. The operator must select an in-line inspection tool, or combination of tools, capable of detecting, at a minimum, corrosion and dents. If cracking is identified as a probable integrity threat, then the operator must select a tool or combination of tools capable of detecting cracks. If an in-line inspection is impracticable, an operator may perform a baseline assessment using a pressure test, external corrosion direct assessment, or other technology with advance notification to PHMSA.

After the baseline assessment, a segment that could affect an HCA must be reassessed regularly. The assessment schedule for both the baseline assessment and reassessments must be established by considering all risk factors, including, at a minimum, each of the factors listed in § 195.452(e). Section 195.452(j)(3) requires operators to continually assess the pipeline's integrity at no greater than 5-year intervals, not to exceed 68 months, except as provided in § 195.452(j)(4). If the operator detects a defect during an assessment, the operator must remediate it pursuant to the requirements in § 195.452(h) and the operator's procedure. That paragraph requires an operator to establish repair criteria that meet minimum standards for remediation methods and repair of various repair conditions.

In addition to assessment and repair requirements, operators must use a risk analysis to identify preventative and mitigative measures necessary to avert negative impacts in HCAs. Examples of preventative and mitigative measures identified in § 195.452(i) include adopting damage prevention best practices, improving cathodic protection monitoring, shortening inspection intervals, installing emergency flow restricting devices, 9 installing leak detection equipment, or providing enhanced response training to operator personnel and emergency responders. Operators must implement preventative and mitigative measures based on an analysis of the likelihood of a pipeline release and the potential consequences of the release. The minimum elements of this risk analysis are described in § 195.452(i)(2). Pipelines that could affect an HCA must have a means to detect leaks on the pipeline system(s) pursuant to § 195.452(i)(3), though §§ 195.134 and 195.444 require leak detection systems on hazardous liquid pipeline systems outside of HCAs as well.

PHMSA maintains a map of HCAs in the NPMS pursuant to 49 U.S.C. 60132(d). The NPMS includes GIS resources that allow users to view pipeline maps and pipeline operations information, depending on the profile of the user. The NPMS contains locations and information about gas transmission and hazardous liquid pipelines and liquefied natural gas (LNG) plants under PHMSA jurisdiction. The NPMS also contains hazardous liquid pipeline HCA data  10 and voluntarily submitted breakout tank  11 data. NPMS data for hazardous liquid pipeline facilities include geospatial data, attribute data for pipeline segments, metadata, and operator contact information. Operators are required to submit NPMS data annually or review their current data in the NPMS to confirm it is still accurate pursuant to § 195.61. PHMSA processes operator data submissions year-round and the online mapping applications and resources are updated approximately every other month. These data and submission requirements are described in further detail in § 195.61 and the Operator Standards Manual, available on the NPMS web page. 12

The NPMS contains information from over 1,500 operators totaling over 225,000 miles of hazardous liquid pipelines and over 310,000 miles of gas transmission pipelines. Operators also voluntarily provided information on the location of 3,476 breakout tanks out of 8,412 reported in annual reports for the 2019 reporting year. PHMSA and others use NPMS data for a wide variety of purposes, including emergency response, inspection planning, risk assessment, regulatory support, spatial analysis, map production, public awareness, and education.

The NPMS website is structured into three pages by user-type to facilitate access to available information and resources. The pages include: (1) The Government Official Portal, intended for government officials at the local, State, or Federal level, including emergency responders and tribal governments; (2) the Operator Portal, intended for employees of pipeline operators who contribute data to the NPMS, including operators of gas transmission or hazardous liquid pipelines, breakout tanks, and LNG plants under PHMSA jurisdiction;  13 and (3) the General Public Portal, available for members of the public. The General Public Portal includes information about gas transmission and hazardous liquid pipelines, an operator directory, and the NPMS Public Map Viewer for exploring or printing NPMS maps on a per-county basis. The General Public Portal also has maps of HCAs. This includes the location of high-population areas derived from U.S. Census Bureau data and commercially navigable waterways from the U.S. Army Corps of Engineers' National Waterway Network. As an initial step to implement Section 19 of the PIPES Act of 2016, PHMSA, in 2019, incorporated GIS data for the Great Lakes USA ecological resource to the NPMS based on the definition of the Great Lakes from 33 U.S.C. 1268 and geospatial information from NOAA's U.S. State Submerged Lands dataset. 14 NOAA updates this dataset as needed to ensure accuracy in depicting Great Lakes shorelines and last updated the dataset in 2016.

In addition to the three user-type pages discussed above, PHMSA has also developed the Pipeline Information Management Mapping Application (PIMMA). PIMMA is a password-protected, web-based mapping application limited to government officials and pipeline operators. Each government user only has access to the maps of pipelines in their area of jurisdiction, and each operator user only has access to maps of the pipelines they operate. Government officials or operators can apply for PIMMA access or log in to PIMMA from the NPMS homepage. Information on how to use and access PIMMA is available within the Government Official and Operator Portals.

Government officials and operators can request access to pipeline facility GIS data from the NPMS for use in their own GIS. This option allows government officials and operators to produce maps and conduct analyses. Government officials and operators may also apply for access to the NPMS pipeline facility GIS data in their area of jurisdiction or for the pipeline facilities they operate. Hazardous liquid operators may only access USA GIS data for the States in which they operate or are constructing hazardous liquid pipelines. Except for HCA and USA GIS data available on the General Public Portal ( i.e., populated areas, commercially navigable waterways, and the Great Lakes), all GIS data from the NPMS is considered for official use only and requires an application process that can include an official request letter from a pipeline company manager. Detailed instructions for access to GIS data from the NPMS are available on the NPMS website at https://www.npms.phmsa.dot.gov/. PHMSA conducts reviews of publicly available dataset updates every two years to maintain HCA data accuracy. PHMSA announces updates via emails to pipeline operators and on the NPMS website.

Any release of petroleum, petroleum products, or other hazardous liquids can adversely affect human health and safety, threaten wildlife and habitats, impede commercial navigation, or damage personal or commercial property. Spills into bodies of water present increased risk because the water and water currents act as conveyances to increase the spread of the spill. These factors greatly complicate response, recovery, and remediation efforts for spills affecting bodies of water and intertidal land along the shoreline. Major oil spills within the Great Lakes, shorelines, or coastal waters would have extreme, negative, and persistent impacts on shoreline ecology, benthic communities at the base of the ecosystem, fisheries, human health, and the economy of coastal communities. This IFR takes immediate action necessary to ensure that operators take appropriate steps to protect the Great Lakes, coastal communities, and marine waters from the impacts of hazardous liquid spills into these fragile environments. Although prediction of the precise number of avoided accidents realized by this rulemaking's extension of IM requirements to currently unregulated pipelines is challenging, the historical examples below underscore the magnitude of adverse environmental consequences for coastal beaches and coastal waters in the event of a significant pipeline accident.

The most recent significant pipeline accident that affected coastal beaches and coastal waters was a 2015 oil spill where a pipeline operated by Plains Pipeline, LP (Plains) failed due to external corrosion. 15 While this rupture occurred in an HCA and therefore was subject to PHMSA's IM requirements, 16 it highlights many of the probable impacts of oil pipeline spills into coastal areas. The rupture released 2,934 barrels (approximately 123,000 gallons) of heavy crude oil near Santa Barbara, California. Approximately 500 barrels (21,000 gallons) of crude oil reached the Pacific Ocean near Refugio State Beach. On March 13, 2020, the U.S. Department of Justice (DOJ) announced a settlement that required Plains pay over $60 million in penalties, clean-up costs, and natural resources assessment costs and damages. 17 This spill is estimated to have contaminated over 3,000 acres of shoreline, subtidal, and benthic habitats, and resulted in the injury or death to hundreds of birds and marine mammals. 18 In addition to the severe ecological impacts, the spill itself and cleanup activities significantly limited recreational and commercial use of the oil contaminated coastal beaches and surrounding areas.

Another accident demonstrating the significant adverse environmental consequences of pipeline spills into bodies of water was the rupture of Enbridge Line 6B, which occurred on July 26, 2010, near the town of Marshall, Michigan. While this spill occurred on a segment of pipe within an HCA  19 and along an inland, freshwater river, rather than along the coast, the adverse impacts resulting from this spill are similar to what could occur if a spill occurred in connecting waters of the Great Lakes estuaries, and other marine waters up to the head of tidal influence, which are specifically addressed in this rule. This accident occurred when a 30-inch pipeline ruptured, spilling approximately 20,000 barrels of diluted bitumen into the Kalamazoo River and surrounding wetlands. The release contaminated 40 miles of the Kalamazoo River, and cleanup efforts were complicated by the propensity for diluted bitumen and other heavy crude oils to sink. As a result of the spill, the impacted segment of the river remained closed for public, recreational use for nearly two years. 20 Environmental impacts continued in the years following the spill, including decreases in fish abundance and variety in downstream areas until at least 2013. 21 Enbridge agreed to pay over $1 billion in cleanup costs and $177 million in a settlement with DOJ, including $61 million in penalties. 22 Other events occurring on pipelines in or that could affect HCAs, such as a 2018 anchor strike that dented the submerged Enbridge Line 5 in the Straits of Mackinac, 23 and the October 2021 discovery of a large crude oil release from a pipeline near Huntington Beach, CA, 24 further highlight the damage that can be done by a pipeline spill into the Great Lakes or other coastal waters.

Non-pipeline spills in coastal areas have also resulted in widespread environmental damage and economic impacts. In 1969, an offshore oil production platform experienced a blowout off the coast of Santa Barbara, California. That accident contaminated 35 miles of California shoreline. 25 That event was the largest marine oil spill in U.S. history until the grounding of the crude oil tanker, Exxon Valdez, in Prince William Sound, Alaska in 1989, 26 and later the blowout of the Deepwater Horizon drilling rig in the Gulf of Mexico in 2010. 27 Each of these events led to widespread harm to marine and coastal ecosystems, and economic harm to coastal resources such as fisheries and recreational areas.

With the passage of the PIPES Act of 2016, Congress amended 49 U.S.C. 60109(b) to add “locations . . . that have been identified as part of the Great Lakes or have been identified as coastal beaches, [or] marine coastal waters” to the list of “areas where a pipeline rupture would likely cause permanent or long-term environmental damage.” Section 19 of the PIPES Act of 2016 ordered that PHMSA “revise section 195.6(b) of Title 49, Code of Federal Regulations, to explicitly state that the Great Lakes, coastal beaches, and marine coastal waters are USA ecological resources for purposes of determining whether a pipeline is located in a high consequence area.” As described above, these areas will therefore be defined as HCAs, and operators of hazardous liquid pipelines that could affect such areas will be required to implement IM programs for those segments.

Based on the 2016 mandate, PHMSA searched for “locations that have been identified as part of the Great Lakes or have been identified as coastal beaches, [or] marine coastal waters.” During this search, described in section VI.B, PHMSA used the definition of the Great Lakes from 33 U.S.C. 1268 and geospatial information from NOAA's U.S. State Submerged Lands dataset and added the Great Lakes to the NPMS. PHMSA was unable to locate any existing U.S. statutory or regulatory provision(s) providing similarly helpful definitions of “marine coastal waters” or “coastal beaches.” Due to uncertainty regarding how to define “locations . . . that have been identified as . . . coastal beaches [or] marine coastal waters” as described in the PIPES Act of 2016, PHMSA held two public meetings, discussed below, and began drafting an advance notice of proposed rulemaking to seek public input on how to best define those terms in part 195 and provide GIS data representing the location of those areas in the NPMS.

PHMSA held public meetings on November 17, 2017, and June 12, 2019, to discuss definitions for “coastal beaches,” “marine coastal waters,”  28 and “the Great Lakes,” and to identify GIS data sources to map such features in the NPMS. Both were in-person meetings in Washington, DC with options for remote participation. Materials presented during these meetings are available at the web page for each meeting. 29 The 2017 meeting included discussions on how PHMSA currently maps commercially navigable waterways in the Great Lakes. Representatives from PHMSA, NatureServe, NOAA, the Pipeline Safety Trust (PST), Phillips 66, Arcadis, and the Coastal and Marine Operators Pipeline Industry Initiative (CAMO) gave presentations. The meeting included discussions of potential data sources for shoreline types, what should be classified as a “coastal beach,” and where to define the landward and seaward extent of “marine coastal waters.”

The 2019 meeting focused primarily on nine questions that PHMSA provided to attendees prior to the meeting, which included proposed definitions for “locations that have been identified as part of the Great Lakes, or have been identified as coastal beaches, [or] marine coastal waters.” Also discussed was the creation of new USA ecological resource GIS data based on the proposed definitions. PHMSA developed the proposed definitions and other questions for the 2019 public meeting after reviewing comments from the 2017 public meeting, the data pilot project, 30 and PHMSA's internal research. Question 9A, presented to the public meeting participants, included a discussion on whether PHMSA should use the GIS data depicting the extent of the U.S. State Submerged Lands dataset to map the Great Lakes and Question 9B referenced the statutory definition of the Great Lakes found in 33 U.S.C. 1268. PHMSA ultimately determined that the U.S. State Submerged Lands GIS data was the best mapping source to match the existing Great Lakes definition and added these data to the NPMS. This change is described in section VI.B. PHMSA, American Petroleum Institute (including Plains All American Pipeline, L.P. and Freeman GIS, Inc.), PST, and the Louisiana Department of Natural Resources each gave presentations during the 2019 meeting. PHMSA requested that attendees post their questions and concerns to the docket for the meeting. Following the meeting, PHMSA worked to develop regulatory definitions and data sets addressing the challenges identified during the meeting and in public comments.

The PIPES Act of 2020 eliminated the uncertainty regarding the undefined terms “coastal beach” and “marine coastal waters,” as they appeared in the PIPES Act of 2016. Section 120 of the PIPES Act of 2020 amended Section 19 of the PIPES Act of 2016. Congress eliminated the term “marine coastal waters” and replaced it with “certain coastal waters,” which Congress defined as “the territorial sea of the United States; the Great Lakes and their connecting waters; and the marine and estuarine waters of the United States up to the head of tidal influence.” Furthermore, Congress defined “coastal beach” as “any land between the high- and low-water marks of certain coastal waters.” Congress directed PHMSA to incorporate those definitions within its regulations not later than 90 days after the enactment. This rule therefore incorporates the statutory definitions of “certain coastal waters” and “coastal beach” into § 195.6 verbatim. Nevertheless, PHMSA invites comments on its plan to implement this mandate in the NPMS, which is described in section VI.

Pursuant to the plain language of Section 19 of the PIPES Act of the 2016, as amended by the PIPES Act of 2020, this IFR amends § 195.6 to explicitly state that the Great Lakes, coastal beaches, and certain coastal waters are USA ecological resources for the purposes of determining whether a pipeline is in an HCA, as defined in § 195.450. In the IFR, PHMSA has revised § 195.6(c) to include the terms “coastal beach” and “certain coastal waters,” employing the statutorily mandated definitions in the PIPES Act of 2020. The implementation of these definitions in the NPMS is described in sections VI.B and VI.C below. This change also influences whether certain onshore rural gathering lines are regulated under § 195.11. The requirements for certain onshore rural gathering lines within 1/4 mile of a USA are described in section VI.D below.

“Certain coastal waters” are defined in this rule as “the territorial sea of the United States; the Great Lakes and their connecting waters; and the marine and estuarine waters of the United States up to the head of tidal influence.” This language mirrors the definition provided in the PIPES Act of 2020. Pursuant to Presidential Proclamation 5928, 31 the territorial sea of the United States extends 12 nautical miles (approximately 13.8 miles) from the baseline of the United States. 32 Generally, the baseline is drawn at the line of Mean Lower Low Water, or the lowest of the two low tides per day averaged over an 18.6-year period, as determined by NOAA; however, a straight baseline is allowed in some circumstances. 33 In other words, the territorial sea portion of “certain coastal waters” extends from approximately the line of low tide to 12 nautical miles out to sea. The “marine and estuarine waters of the United States up to the head of tidal influence” refers to waters inland of the landward limit of the territorial sea up to the upstream limit of water affected by the tide. 34

As discussed in section VI.B below, PHMSA was able to use the existing expert agency definition and data to identify the Great Lakes; PHMSA had already included the Great Lakes and connecting waters in the NPMS consistent with the existing statutory definition in 33 U.S.C. 1268. The Great Lakes and connecting waters include Lake Ontario, Lake Erie, Lake Huron (including Lake St. Clair), Lake Michigan, and Lake Superior, and the connecting channels (Saint Mary's River, Saint Clair River, Detroit River, Niagara River, and the Saint Lawrence River to the Canadian border). This GIS dataset similarly relies on NOAA shoreline data.

The term “coastal beach” is defined in the PIPES Act of 2020, and therefore, defined in this IFR as “any land between the high- and low-water marks of certain coastal waters.” While earlier public meetings considered how the term “coastal beach” might apply to different shoreline types, the term “coastal beach” as defined the PIPES Act of 2020 directed that “coastal beach” covers “any land between the high- and low-water marks of certain coastal waters,” meaning intertidal land adjoining coastal waters, regardless of geomorphologic characteristics. Further, the Great Lakes are considered non-tidal. 35

On October 21, 2019, PHMSA added the Great Lakes as a USA in the NPMS based on the mandate in Section 19 of the PIPES Act of 2016. 36 As described above, PHMSA defined the Great Lakes using an existing statutory definition at 33 U.S.C. 1268. PHMSA then selected corresponding geospatial information from the NOAA U.S. State Submerged Lands dataset to map the Great Lakes in the NPMS as a USA ecological resource based on that definition. PHMSA has not received any feedback on this approach and has determined that this information is consistent with the updated mandates in the PIPES Act of 2020, as it includes each of the Great Lakes and the connecting waters. Nevertheless, PHMSA seeks comments on the selection of this definition of the Great Lakes and the mapping data used to represent the location of the Great Lakes.

As described above, PHMSA maintains GIS data of HCAs, including USAs, as part of the NPMS. PHMSA intends to map both “certain coastal waters” and “coastal beaches” as USAs in a single GIS dataset available from the NPMS using a composite of the data sets described in this section. The datasets prepared by the EPA and NOAA described here are developed through the collection of tidal and environmental data. These data, collected over years, establishes the location of “coastal beaches” and “certain coastal waters” as those terms were defined by Congress.

“Coastal beaches,” as defined in the PIPES Act of 2020, extend from the high water mark to the low water mark, and the territorial sea portion of certain coastal waters extend from approximately the low water mars to the seaward extent of the U.S. territorial sea. Thus, the areas occupied by “certain coastal waters” and “coastal beaches” are contiguous and may overlap. This means that “coastal beaches” and the “territorial sea of the United States” GIS data to be mapped in the NPMS will cover all areas from near the line of high water to the seaward limit of the territorial sea of the United States. This entire area must now be considered as an ecological USA—and by extension, an HCA—for compliance with the IM requirements.

To provide GIS data representing the location of “certain coastal waters” and “coastal beaches,” PHMSA intends to create a single GIS dataset using a combination of data available from EPA and NOAA. Specifically, PHMSA intends to use the EPA Clean Water Act data prepared by NOAA, the EPA Estuary Data Mapper, and the NOAA Sea Level Rise Mean Higher High Water Data to create a single “coastal beach” and “certain coastal waters” USA dataset in the NPMS. PHMSA believes that aggregating these datasets from expert scientific Federal agencies represents the best-available national data on the location of “certain coastal waters” (the territorial sea of the United States, marine and estuarine waters of the United States up to the head of tide, and the Great Lakes), and “coastal beaches” (land between the high and low water marks). Each of these parent datasets are prepared and published by the expert agencies within the Federal government and are available to the public for download and review. The use of publicly available data addresses concerns about the availability of proprietary and security-sensitive information that were raised by the Pipeline Safety Trust and others during public meetings. PHMSA invites comments on the use of these datasets to satisfy the requirements of the PIPES Act of 2020.

PHMSA will use a portion of the GIS data NOAA compiled for EPA in compliance with the Clean Water Act (CWA) to represent the territorial sea portion of its new GIS dataset. Like the definition in the PIPES Act of 2020, the CWA refers to the territorial sea of the United States and the Great Lakes. The NOAA CWA dataset represents GIS data for the Great Lakes and connecting waters, as well as waters from the mean high-water line to the 12 nautical mile line ( i.e., the seaward extent of the U.S. territorial sea per Presidential Proclamation No. 5928) and the 3 nautical mile line used for certain Federal laws existing on or before the issuance of Presidential Proclamation No. 5928, including the CWA. The landward boundary in the CWA dataset is defined by the NOAA Medium Resolution Shoreline Product  37 for the contiguous U.S., and other Federal data  38 for the shoreline in Alaska, Hawaii, and Puerto Rico. For the purposes of identifying the location of “certain coastal waters,” the seaward extent of the U.S. territorial sea is mapped at the 12 nautical mile line depicted in the NOAA CWA dataset in accordance with the meaning of that term in Presidential Proclamation No. 5928 and international law. The NOAA Medium Resolution Shoreline represents the line of mean high water. 39 These data are compiled from official NOAA nautical charts and represents the definitive map of U.S. maritime boundaries (such as the seaward extent of the U.S. territorial sea) under U.S. and international law.

While the U.S. territorial sea under Presidential Proclamation No. 5928, as mapped by NOAA, definitively represents the U.S. territorial sea and the Great Lakes, it does not identify the location of marine and estuarine waters of the United States up to the head of tidal influence. In order to accurately represent such waters, PHMSA intends to include data from the EPA Estuary Data Mapper in the NPMS map of certain coastal waters and coastal beaches. The Estuary Data Mapper includes GIS polygon data for approximately 2,000 named estuaries of the United States. For the purposes of this dataset, EPA defines an estuary as:

This definition explicitly references tidal influences. PHMSA understands the Estuary Data Mapper data represents the most complete national inventory of estuarine waters. These data are designed to support environmental science and management efforts and the EPA National Estuary Program. 40 The Estuary Data Mapper is a relatively new GIS product tool, and it is not entirely complete in Alaska, Hawaii, and some areas of the Pacific Northwest. Nonetheless, during the course of the development of this document, EPA has reported ongoing progress in this area.

The term “coastal beaches” includes all land between the high and low-water marks. The Medium Resolution Shoreline used in the EPA map of the U.S. territorial sea represents a location between high and low-water marks. As stated earlier, the Medium Resolution Shoreline represents the mean high water of the shore. NOAA defines “mean high water” as “the average of all high-water heights observed over the National Tidal Datum Epoch.”  41 In contrast, NOAA defines the “high-water mark” as “[a] line or mark left upon tide flats, beach, or along shore objects indicating the elevation of the intrusion of high water. The mark may be a line of oil or scum on along shore objects, or a more or less continuous deposit of fine shell or debris on the fore shore or berm.”  42 Because this physical line changes with each tidal shift, NOAA measures and records the “higher high water” (HHW), which is the “higher of the two high waters of a tidal day where the tide is semidiurnal (occurring twice daily).” The average of the HHW values is the tidal datum ( i.e., a fixed starting point) known as the “mean higher high water” (MHHW).

As described above, the “high-water mark” changes daily because it is influenced by meteorological, climate, and surf conditions. PHMSA is not aware of any national data representative of the physical high-water mark, which is dynamic and changes day to day. In the absence of this information, PHMSA will use the MHHW GIS data product from NOAA's Sea Level Rise Viewer to approximate the location of the dynamic high-water mark. The NOAA Sea Level Rise Viewer includes digital elevation models and the NOAA tidal datum of mean higher high water. In certain locations and in certain meteorological conditions, the MHHW could be lower than a high-water mark. Nonetheless, the MHHW is the most accurate dataset that PHMSA is aware of for identifying the high-water mark and marine and estuarine waters up to the head of tidal influence. PHMSA acknowledges that MHHW may not precisely align with the exact physical high-water mark (indicated by fine debris or scum line) at any given time. In any event, the IM requirements apply not only to segments of hazardous liquid pipelines that cross an HCA but also to any pipeline segments that “could affect” an HCA. In determining which segments “could affect” an area, operators need to consider the terrain around the pipeline and natural forces inherent in the area, including tidal forces, meteorological conditions, and flood zones, when determining which pipeline segments could affect an HCA (See section I.B. of appendix C to part 195).

As described in section II, changes to the definition of the term “USA” affect the hazardous liquid pipelines subject to IM requirements. Operators of hazardous liquid pipelines that could affect the Great Lakes, “certain coastal waters,” and “coastal beaches” must include those segments in an IM program. Based on a geospatial analysis using data in the NPMS, PHMSA estimates that 2,905 additional miles of hazardous liquid pipelines, primarily in states adjoining the Gulf of Mexico, will be subject to liquid IM requirements due to this IFR. This estimate reflects segments located within 1/4 mile of any of the newly defined USAs but are not located within 1/4 mile of the location of existing HCAs described in existing §§ 195.6 and 195.450. Based on this analysis, PHMSA anticipates that most affected operators have an existing IM program and will be able to extend that plan to include the newly covered segments. This analysis is described in the RIA for this IFR.

In addition, operators of onshore hazardous liquid pipelines submerged more than 150 feet below the surface of water that could affect an HCA must comply with enhanced requirements for submerged pipelines in self-executing provisions described in § 120(d) of the PIPES Act of 2020, codified at 49 U.S.C. 60109(g). That section of the pipeline safety laws (49 U.S.C. 60101 et seq. ) requires that operators perform annual in-line inspections, annual route surveys, and have (and follow) procedures for assessing the potential impacts from third-party damage from vessels and maritime equipment, including anchors and anchor chains.

The presence of a USA also effects which onshore gathering lines are subject to part 195 safety requirements as regulated rural gathering lines. Section 195.2 defines a rural area as being outside the limits of any incorporated or unincorporated city, town, village, or any other designated residential or commercial area such as a subdivision, a business or shopping center, or community development. Currently, an onshore rural gathering line is subject to safety requirements in § 195.11 if the pipeline has a nominal diameter from 6 5/8 inches to 8 5/8 inches, has a stress level greater than 20 percent of the specified minimum yield strength (or a pressure of 125 pounds per square inch gauge (psig) for non-steel pipe or if the stress level is not known), and is located within 1/4 -mile of a USA. Defining new USAs may result in additional pipelines being classified as regulated rural gathering lines. However, PHMSA expects that the effect of the IFR on the mileage of onshore regulated rural gathering lines will be limited since rural gathering lines are not generally located along the coasts near most of the new USAs established by the IFR. Further, those rural gathering lines that are near the coasts may already be subject to part 195 requirements (pursuant to § 195.1) if they are either located in a non-rural area, cross commercially navigable waterways, or are located in the inlets of the Gulf of Mexico. 43 As discussed in the RIA, PHMSA estimates that 58.5 miles of currently unregulated rural gathering lines will become regulated, and that the resulting regulatory burden for those lines will be $63 thousand in the first year of analysis, and $15 thousand in years two through ten. PHMSA welcomes comment on its assumptions regarding the mileage and regulatory burden for currently unregulated gathering lines that become regulated as a result of the IFR, as well as corresponding safety benefits.

Rural gathering lines between 6 5/8 inches and 8 5/8 inches in diameter that become regulated rural gathering lines as a result of the IFR become subject to the requirements listed in § 195.11(b). An operator of a regulated rural gathering line must comply with reporting requirements in subpart B of part 195; establish a maximum operating pressure of the pipeline in accordance with § 195.406; install and maintain line markers in accordance with § 195.410; establish and carry out a public education program in accordance with § 195.440; establish and carry out a damage prevention program in accordance with § 195.442; comply with corrosion control requirements in subpart H; establish and carry out a program to identify internal corrosion in accordance with § 195.11(b)(10); and comply with operator qualification program requirements in accordance with subpart G to part 195 and § 195.505. A new or replaced regulated rural gathering line must also comply with the initial design, installation, construction inspection, and testing requirements in part 195, unless that pipeline is being converted to service under § 195.5. Pursuant to § 195.11(c), an operator most comply with § 195.11(b)(2)-(11) within 6 months from the date that a new USA has been identified, except for the requirements for corrosion control, which are subject to the compliance timelines in part 195, subpart H.

Finally, the part 195 requirements applicable to low-stress pipelines located in rural areas depend on the pipeline's proximity to a USA. Section 195.12 defines a low-stress rural pipeline as a line located in a rural area and having a maximum operating pressure corresponding to a stress level of 20 percent or less of the specified minimum yield strength (or if the stress level is unknown, or for non-steel pipelines, a pressure less than or equal to 125 psig). A rural low-stress line that is located within 1/2 mile of a USA (or alternatively, that could affect an HCA as determined in § 195.452(a)) is a Category 1 or Category 2 rural low-stress line that must comply with all of the safety requirements in part 195. Other rural low-stress pipelines not within 1/2 mile of a USA are Category 3 lines that must comply with all the requirements of part 195 except the IM program requirements in § 195.452. Pursuant to § 195.12(e), a Category 3 rural low-stress line or any other pipeline that becomes a Category 1 or Category 2 rural low-stress line must comply with the IM program requirements within 12 months following the date the USA is identified ( i.e., the effective date of this IFR). IM program requirements are described in detail above.

Because the IFR expands the scope of USAs, some Category 3 rural low-stress lines may become Categories 1 or 2 rural low stress lines and, therefore, would be subject to IM program requirements at § 195.452(a). However, similar to the discussion of onshore regulated rural gathering above and as explained in the RIA, PHMSA understands relatively few rural low-stress pipelines will be affected by the IFR. Newly impacted rural low-stress lines located within 1/4 - mile of the new USAs are included in the RIA mileage estimate. However, PHMSA did not perform a separate analysis of rural-low stress lines located between 1/4 mile and 1/2 mile of a newly designated USA. PHMSA expects the (current) Category 3 pipeline mileage which could be so affected to be minimal given that much of the rural low-stress lines near a coast would cross navigable waters and therefore would already be subject to IM program requirements under § 195.1. However, in 2020, operators reported only 3,100 miles of rural low-stress hazardous liquid lines total across all reported categories. Similar to the discussion of regulated rural gathering lines, much of the pipeline mileage near the new USAs (which are mostly along the coasts) is already subject to IM program requirements pursuant to the general applicability of part 195 to pipelines crossing navigable waters or that are located in the inlets of the Gulf of Mexico in § 195.1(a). Further, operators of rural low-stress liquid lines have the option to perform an HCA could-affect analysis under § 195.452(a) rather than use the 1/2 -mile criteria.

This IFR is effective without advance notice and public comment as the amendments to the CFR in the IFR are not subject to agency discretion. Section 19 of the PIPES Act of 2016, as amended by the PIPES Act of 2020 states that the Secretary “shall revise section 195.6 [. . .] to explicitly state that the Great Lakes, coastal beaches and certain coastal waters are USA ecological resources.” The PIPES Act of 2020 further specifies statutory definitions for each of these terms. Pursuant to the plain language of the mandates from the PIPES Act of 2016 and the PIPES Act of 2020, the IFR adopts each of these statutory definitions into § 195.6 verbatim. While PHMSA has no discretion regarding the amendments to § 195.6 mandated by the Act, this IFR invites comments on the national and publicly available GIS datasets to represent these new Ecological USA definitions in the NPMS.

PHMSA will consider all relevant, substantive comments in this area. PHMSA encourages interested parties to submit comments that: (1) Identify the amendments being commented on and the appropriate section numbers; (2) provide justification for their support or opposition to the amendments, especially data on safety risks and cost burdens; and (3) provide specific alternatives if appropriate.

The Administrative Procedure Act (APA, 5 U.S.C. 551 et seq. ) permits an agency to issue a final rule without first publishing a proposed rule for public comment when it demonstrates “good cause” that notice and comment is “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 552 (b)(3)(B). This exception is narrow, and PHMSA is proceeding with an IFR only in light of the specific instructions from Congress in the PIPES Act of 2020 that render comment both unnecessary and impracticable.

Prior notice and comment are unnecessary for this rulemaking because Congress, in the PIPES Act of 2020, provided clear, defined terms and required PHMSA to update its regulations to incorporate those terms. Specifically, Congress clarified that “certain coastal waters” means the territorial sea of the United States, the Great Lakes, and marine and estuarine waters up to the head of tidal influence. Congress also clarified which areas must be designated as a “coastal beach.” These statutory definitions resolved uncertainties within language in the PIPES Act of 2016 to expand the hazardous liquid pipelines subject to IM requirements. Congress did not provide discretion for PHMSA to adopt the regulatory amendments in this IFR, requiring PHMSA to “revise § 195.6(b) to explicitly state that the Great Lakes, coastal beaches, and certain coastal waters are USA ecological resources for purposes of determining whether a pipeline is in a high consequence area.”

Notice and comment are also unnecessary because the definitions of the terms that Congress required PHMSA to include in its regulations are also further specifically defined by other expert Federal agencies, as described in the paragraphs that follow.

“The territorial sea of the United States” has a long-established meaning based on Presidential Proclamation 5928, international law, and NOAA data sets. Each of these authorities define and designate the “territorial sea of the United States,” as extending 12 nautical miles (approximately 13.8 miles) from the “baseline.” NOAA is responsible for delineating the “baseline,” based on its tidal datum Mean Lower Low Water, or the lowest of the two low tides per day averaged over an 18.6-year period.

Next, NOAA has defined the boundaries of “marine waters of the United States.” While the term “marine waters” is not specifically defined in the U.S. Code, NOAA has defined “marine waters” as those waters subject to tidal influence. The seaward boundary of “marine waters” would be the extent of “the territorial seas of the United States,” as described above. The landward boundary of the “marine waters” is designated by NOAA's polygon GIS data identifying the MHHW values. These values are the averages of daily HHW recordings from NOAA tide stations over a period of 18.6 years.

EPA defines the boundaries of “estuarine waters of the United States.” The Clean Water Act authorizes EPA to define and map estuarine resources pursuant to the National Estuary Program provided for in the Clean Water Act (33 U.S.C. 1330). As described above, EPA similarly defines estuaries as subject to tidal influence. The EPA has also made estuary polygon data available in EPA's Estuary Data Mapper (EDM) that maps approximately 2,000 named estuaries identified using EPA's Environmental Monitoring and Assessment Program's National Coastal Condition Assessment.

NOAA has also defined the terms used in Congress' definition for “coastal beaches.” The PIPES Act of 2020 defines the term “coastal beach” to mean any land between the high- and low-water marks of certain coastal waters. As discussed above, NOAA has defined and mapped the MHHW, which is an authoritative tidal datum for approximating a “high water mark.” In contrast, the low water mark need not be defined for the purposes of the PIPES Act of 2020 because everything seaward of the high water mark is included in either the “territorial sea of the United States,” or the “marine and estuarine waters of the United States up to the head of tidal influence”—terms which, as explained above, have been defined and mapped by NOAA and EPA.

Given the above, PHMSA has determined that it lacks discretion to alter or consider alteration of the long-standing definitions or practical understandings of “the territorial sea of the United States,” “marine waters of the United States,” “estuarine waters of the United States,” and “coastal beaches.” Similarly, PHMSA lacks discretion to alter or consider redesignation of the GIS polygons as depicted in NOAA's Clean Water Act data, the EPA EDM, and the NOAA Sea Level Rise MHHW Data. Changes to these definitions and designations would be inaccurate, would cause confusion, and would be an unnecessary waste of government resources. Therefore, a traditional notice and comment rulemaking is unnecessary.

The Congressionally-specified regulatory language, along with an aggressive Congressional deadline, also render traditional notice and comment impracticable. In light of the earlier challenges PHMSA faced in defining and mapping the undefined terms “marine coastal waters” and “coastal beaches,” Congress in the PIPES Act of 2020 intervened in a pending PHMSA rulemaking (under the same RIN as this rulemaking) to ensure PHMSA had the tools—clear, defined terms in place of the ambiguous language in the PIPES Act of 2016—to resolve the bases for PHMSA's protracted delay in responding to an earlier rulemaking mandate. Congress also demanded PHMSA “complete” those regulatory amendments within 90 days of enactment of the PIPES Act of 2020. Congress' expectations regarding the need for prompt PHMSA action to complete this rulemaking is understandable given the history of hazardous liquid pipeline accidents that have affected or threatened coastal waters and the Great Lakes and other sensitive ecosystems. The negative environmental and human health impacts of hazardous liquid releases such as the 2010 Marshall, MI and 2015 Plains accidents persist for years, even despite best clean-up efforts. The 2018 anchor strike on Enbridge Line 5 further underscored the urgency of updating PHMSA's regulatory framework to address those risks. More recently, members of Congress have also identified the October 2021 discovery of a large crude oil release from a pipeline near Huntington Beach, CA, as evidence of the need for prompt PHMSA action to complete this rulemaking. 44

Further delay of this IFR's regulatory revisions to accommodate notice and comment procedures would, therefore, frustrate an aggressive Congressional timeline for prompt completion of the specific regulatory amendments that Congress understood as being necessary to align PHMSA's IM regulations with the grave public safety and environmental risks posed by hazardous liquid lines. For those reasons, traditional notice and comment procedures are impracticable.

This IFR is published under the authority of the Federal Pipeline Safety Laws. Section 60102 authorizes the Secretary of Transportation to issue regulations governing the design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. The Secretary has delegated this authority to the PHMSA Administrator under 49 CFR 1.97. Further, Section 19 of the PIPES Act of 2016, as amended by the PIPES Act of 2020, requires the Secretary of Transportation to revise § 195.6 to explicitly state in § 195.6 that the Great Lakes, certain coastal waters, and coastal beaches are USAs for the purpose of determining whether a hazardous liquid pipeline is in or could affect an HCA.

Executive Order 12866 (“Regulatory Planning and Review”)  45 requires that agencies “should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating.” Agencies should consider quantifiable measures and qualitative measures of costs and benefits that are difficult to quantify. Further, Executive Order 12866 requires that “agencies should select those [regulatory] approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach.” Similarly, DOT Order 2100.6A (“Rulemaking and Guidance Procedures”) requires that regulations issued by PHMSA and other DOT Operating Administrations should consider an assessment of the potential benefits, costs, and other important impacts of the proposed action and should quantify (to the extent practicable) the benefits, costs, and any significant distributional impacts, including any environmental impacts. The Federal pipeline safety laws at 49 U.S.C. 60102(b)(5) further authorize only those safety requirements whose benefits (including safety and environmental benefits) have been determined to justify their costs.

Executive Order 12866 and DOT Order 2100.6A require that PHMSA submit “significant regulatory actions” to the Office of Management and Budget (OMB) for review. This IFR has been determined to be significant under section 3(f) of Executive Order 12866 and was reviewed by OMB. It is also considered significant under DOT Order 2100.6A. The Office of Information and Regulatory Affairs (OIRA) has not, however, designated this rule as a “major rule” as defined by the Congressional Review Act (5 U.S.C. 801 et seq. ).

PHMSA estimates that the IFR will result in unquantified public safety and environmental benefits associated with preventing and mitigating hazardous liquid pipeline accidents within or that could affect coastal beaches, coastal waters, or the Great Lakes. PHMSA estimates annualized costs of between $3.91 million per year (using a 3 percent discount rate) and $3.98 million per year (using a 7 percent discount rate) due to costs associating with establishing or updating IM programs and performing integrity assessments. The costs and benefits of the IFR are described in further detail in the RIA, which is available in the docket.

PHMSA analyzed this IFR in accordance with Executive Order 13132 (“Federalism”). 46 Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have “substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This IFR does not have a substantial direct effect on State and local governments, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. This rulemaking action does not impose substantial direct compliance costs on State and local governments.

While the IFR may operate to preempt some State requirements, it does not impose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. The pipeline safety laws, specifically 49 U.S.C. 60104(c), prohibit State safety regulation of interstate pipeline facilities. Although the pipeline safety laws allow States to augment pipeline safety requirements for intrastate pipeline facilities, States may not issue safety requirements less stringent than those required by Federal law. A State may also regulate an intrastate pipeline facility PHMSA does not regulate.

In this instance, the preemptive effect of the IFR is limited to the minimum level necessary to achieve the objectives of the Federal pipeline safety law under which the IFR is promulgated. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

DOT Order 5610.2C and Executive Orders 12898 (“Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations”), 47 13985 (“Advancing Racial Equity and Support for Underserved Communities Through the Federal Government”), 48 13990 (“Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis”), 49 and 14008 (“Tackling the Climate Crisis at Home and Abroad”)  50 require DOT Operating Administrations to achieve environmental justice as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations, low-income populations, and other disadvantaged communities.

PHMSA has evaluated this IFR under DOT Order 5610.2C and the Executive Orders listed above and has determined it will not cause disproportionately high nor adverse human health and environmental effects on minority populations, low-income populations, or other underserved and disadvantaged communities. The IFR is facially neutral and national in scope; it is neither directed toward a particular population, region, or community, nor is it expected to adversely impact any particular population, region, or community. Indeed, because PHMSA expects the rulemaking will reduce the safety and environmental risks associated with hazardous liquid pipelines generally, PHMSA understands the regulatory amendments introduced by this IFR will, in fact, reduce any disproportionate human health and environmental risks for minority populations, low-income populations, or other underserved and other disadvantaged communities in the vicinity of pipelines within the scope of the IFR's amendments.

PHMSA analyzed this IFR in accordance with the principles and criteria in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”)  51 and DOT Order 5301.1 (“Department of Transportation Programs, Polices, and Procedures Affecting American Indians, Alaska Natives, and Tribes”). Executive Order 13175 requires agencies to assure meaningful and timely input from tribal government representatives in the development of rules that significantly or uniquely affect tribal communities by imposing “substantial direct compliance costs” or “substantial direct effects” on such communities or the relationship and distribution of power between the Federal government and tribes.

PHMSA assessed the impact of the IFR and determined that it will not significantly or uniquely affect tribal communities or Indian tribal governments. The rulemaking's regulatory amendments are facially neutral and will have broad, national scope; PHMSA, therefore, does not expect this rulemaking to significantly or uniquely affect tribal communities, much less impose substantial compliance costs on Native American Tribal governments or mandate Tribal action. And insofar as PHMSA expects the rulemaking will improve safety and reduce environmental risks associated with hazardous liquid pipelines, PHMSA has concluded it will not entail disproportionately high adverse risks for Tribal communities. The funding and consultation requirements of Executive Order 13175 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires Federal agencies to conduct a Regulatory Flexibility Analysis (RFA) for any rule subject to notice-and-comment rulemaking under the APA unless the agency head certifies that the rule will not have a significant economic impact on a substantial number of small entities. This final rule was developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”)  52 to promote compliance with the RFA and to ensure that the potential impacts of the rulemaking on small entities has been properly considered.

As discussed above, PHMSA has determined that there is “good cause” to forego prior notice and comment and amend the pipeline safety regulations through this IFR. The Regulatory Flexibility Act, therefore, does not require PHMSA to conduct an RFA. Nonetheless, PHMSA conducted a screening analysis of the impact of the IFR on small entities, which is included in a final RFA within the rulemaking docket. As explained at greater length in that RFA, PHMSA has analyzed NPMS data and determined that only a small share of hazardous liquid pipeline mileage nationwide will be affected by the IFR—and the operators of most of that mileage either (1) already have IM programs, or (2) are not small entities. Further, the compliance costs incurred by even the handful of small entities that would be affected will not be “significant” under the Regulatory Flexibility Act. For these reasons, PHMSA certifies that the IFR will not have a significant economic impact on a substantial number of small entities.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) establishes policies and procedures for controlling paperwork burdens imposed by Federal agencies on the public. Pursuant to 44 U.S.C. 3506(c)(2)(B) and 5 CFR 1320.8(d), PHMSA must provide interested members of the public and affected agencies with an opportunity to comment on information collection and recordkeeping requests. PHMSA expects this IFR to impact the information collections described below.

PHMSA will submit an information collection revision request to OMB for approval based on the requirements in this IFR. The following information is provided for each affected information collection: (1) Title of the information collection; (2) OMB control number; (3) current expiration date; (4) type of request; (5) abstract of the information collection activity; (6) description of affected public; (7) estimate of total annual reporting and recordkeeping burden; and (8) frequency of collection. The information collection burden for the following information collection is estimated to be revised as follows:

1. Title: Hazardous Liquid Pipeline Assessment Requirements.

OMB Control Number: 2137-0605.

Current Expiration Date: 4/30/23.

Abstract: This information collection covers documentation and notifications associated with hazardous liquid pipeline IM requirements. These requirements include documentation of continual assessment and evaluation and preventative and mitigative measures. PHMSA estimates that the new USA definitions in the IFR will require 6 operators to create new IM programs, resulting in 46,640 hours of additional burden to prepare an IM program and integrate safety information in the first year and 1,860 hours of additional burden each subsequent year. This results in an average annual burden increase of 16,787 hours per year over 3 years. PHMSA estimates that the remaining 105 affected operators are already subject to IM requirements, and therefore already have an IM program and perform annual updates.

Affected Public: Hazardous Liquid Pipeline Operators.

Total Reporting and Recordkeeping Burden:

Total Annual Responses: 10,509.

Total Annual Burden Hours: 342,394 hours.

Frequency of Collection: Regular.

2. Title: Qualification of Pipeline Safety Training.

OMB Control Number: 2137-0600.

Current Expiration Date: 11/30/2024.

Abstract: This information collection covers requirements to make and maintain training and qualification records of pipeline operating personnel. For hazardous liquid pipeline operators, these requirements are described in subpart G of part 195. These records include identification of individuals qualified to perform covered tasks, the covered tasks they are qualified to perform, and the method and date they were qualified. These records must be maintained while the individual is performing qualified tasks, or 5 years after the individual is no longer performing covered tasks. PHMSA estimates that the new USA definitions in the IFR will require operators of rural gathering lines regulated under § 195.11 to keep records of qualification for 30 additional individuals. This results in an average annual burden increase of 5 responses and 1 hour per year over 3 years.

Affected Public: Hazardous Liquid Pipeline Operators.

Total Reporting and Recordkeeping Burden:

Total Annual Responses: 29,172.

Total Annual Burden Hours: 2,293 hours.

Frequency of Collection: Regular.

3. Title: Transportation of Hazardous Liquids by Pipeline: Recordkeeping and Accident Reporting.

OMB Control Number: 2137-0047.

Current Expiration Date: 3/31/2024.

Abstract: This information collection covers hazardous liquid pipeline accident report requirements in § 195.50 and general recordkeeping burden associated with complying with Federal hazardous liquid pipeline safety regulations in part 195. PHMSA estimates that the new USA definitions in the IFR will require 2 operators of rural gathering pipelines that become regulated under part 195.11 to establish recordkeeping programs to comply with part 195 requirements applicable to regulated rural gathering pipelines. This results in an average annual burden increase of 2 responses and 272 hours per year over 3 years. PHMSA estimates that 4 additional operators of affected rural gathering liens already have part 195 recordkeeping programs associated with regulated assets that they operate. The reporting burden associated with accident reports is unchanged.

Affected Public: Hazardous Liquid Pipeline Operators.

Total Reporting and Recordkeeping Burden:

Total Annual Responses: 743.

Total Annual Burden Hours: 45,919 hours.

Frequency of Collection: Regular and on occasion.

4. Title: Public Awareness Program.

OMB Control Number: 2137-0622.

Current Expiration Date: 11/30/2024.

Abstract: This information collection covers records and reports generated in order to demonstrate compliance with public awareness program requirements. Hazardous liquid pipeline operators must comply with the public awareness program requirements in § 195.440. Program documentation and program evaluation results must be retained and be made available to Federal and State pipeline safety regulatory agencies. PHMSA estimates that the new USA definitions in the IFR will require 2 operators of rural gathering pipelines that become regulated under part 195.11 to establish recordkeeping programs to comply with public awareness program requirements. PHMSA estimates an average annual burden increase of 4 responses and 92 hours per year over 3 years associated with annual program development and program evaluation and update requirements. PHMSA estimates that 4 additional operators of affected rural gathering lines already have public awareness recordkeeping programs associated with regulated assets that they operate.

Affected Public: Hazardous Liquid Pipeline Operators.

Total Reporting and Recordkeeping Burden:

Total Annual Responses: 45,004.

Total Annual Burden Hours: 517,592 hours.

Frequency of Collection: Regular.

Those desiring to comment on these information collections should send comments directly to the Office of Management and Budget, Office of Information and Regulatory Affairs. Comments should be submitted on or prior to February 25, 2022 via email at the following address: oira_submissions@omb.eop.gov.

The Unfunded Mandates Reform Act (UMRA, 2 U.S.C. 1501 et seq. ) requires agencies to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. For any NPRM or final rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate of $100 million or more (in 1996 dollars) in any given year, the agency must prepare, amongst other things, a written statement that qualitatively and quantitatively assesses the costs and benefits of the Federal mandate. As explained further in the RIA, PHMSA has determined that the IFR does not impose enforceable duties on State, local, or Tribal governments or on the private sector of $100 million or more (in 1996 dollars) in any one year. A copy of the RIA is available for review in the docket of this rulemaking.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

The National Environmental Policy Act (NEPA, 42 U.S.C. 4321 et. seq. ) requires Federal agencies to prepare a detailed statement on major Federal actions significantly affecting the quality of the human environment. The Council on Environmental Quality implementing regulations (40 CFR parts 1500-1508) require Federal agencies to conduct an environmental review considering (1) the need for the action, (2) alternatives to the action, (3) probable environmental impacts of the action and alternatives, and (4) the agencies and persons consulted during the consideration process. DOT Order 5610.1C (“Procedures for Considering Environmental Impacts”) establishes departmental procedures for evaluation of environmental impacts under NEPA and its implementing regulations.

PHMSA analyzed this IFR in accordance with NEPA, NEPA implementing regulations, and DOT Order 5610.1C. PHMSA has prepared an environmental assessment (EA) and determined this action will not significantly affect the quality of the human environment. To the extent that the IFR has impacts on the environment, these are primarily beneficial ecological impacts from reducing the likelihood and consequences of hazardous liquid spills in coastal areas and the Great Lakes. A copy of the EA for this action is available in the docket. PHMSA invites comment on the environmental impacts of this IFR.

Executive Order 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”)  53 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” That Executive Order defines a “significant energy action” as any action by an agency (normally published in the Federal Register ) that promulgates, or is expected to lead to the promulgation of, a final rule or regulation (including a notice of inquiry, ANPRM, and NPRM) that (1)(i) is a significant regulatory action under Executive Order 12866 or any successor order and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

This IFR is a significant action under Executive Order 12866; however, it is expected to have an annual effect on the economy of less than $100 million. Further, this IFR is not likely to have a significant adverse effect on supply, distribution, or energy use, as further discussed in the RIA. Further, OIRA has not designated this IFR as a significant energy action.

Executive Order 13609 (“Promoting International Regulatory Cooperation”)  54 requires agencies consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

PHMSA participates in the establishment of international standards to protect the safety of the American public. PHMSA has assessed the effects of the IFR and determined that it will not cause unnecessary obstacles to foreign trade.

In consideration of the foregoing, PHMSA is amending 49 CFR part 195 as follows: