On May 8, 2014, a final rule, correction was published in the Federal Register (FR 79 26365) Docket No. FAA-2013-0954, correcting the latitude coordinate of a final rule technical amendment published in the Federal Register of March 4, 2014 (79 FR 12050), for South St. Paul Municipal Airport-Richard E. Fleming Field, St. Paul, MN, in Class D airspace. Subsequent to publication, the FAA found the longitude coordinate (93°01′58″) was added in error along with the edited latitude coordinate. This action corrects that error.

On March 14, 2014, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace for the Bois Blanc Island, MI, area, creating controlled airspace at Bois Blanc Island Airport (79 FR 14449) Docket No. FAA-2013-0986. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Bois Blanc Island Airport, Bois Blanc Island, MI, for new standard instrument approach procedures developed at the airport. Controlled airspace is needed for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Bois Blanc Island Airport, Bois Blanc Island, MI.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On April 2, 2014, the FAA published a final rule in the Federal Register establishing Class E airspace at Blairsville Airport, Blairsville, GA (79 FR 18442). After publication, the FAA found that the effective date was incorrectly typed as May 27, 2014, instead of May 29, 2014. This action makes the correction.

Accordingly, pursuant to the authority delegated to me, the effective date listed under DATES heading on Docket No. FAA-2013-0731, establishing Class E airspace at Blairsville Airport, Blairsville, GA, as published in the Federal Register of April 2, 2014, (79 FR 18442), FR Doc. 2014-07292, is corrected as follows:

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

On August 13, 2012 (77 FR 48062), EPA approved a request from the State of Illinois to redesignate the Illinois portion of the Greater Chicago Area to attainment of the 1997 8-hour ozone national ambient air quality standard (NAAQS). In addition to approving the ozone redesignation request, EPA approved the State's plan for maintaining the 1997 8-hour ozone standard in the Illinois portion of the Greater Chicago Area through 2025. The ozone maintenance plan established MVEBs for VOC and NO X for the year 2025 to account for new transportation planning assumptions.

MVEBs are the projected levels of controlled emissions from the transportation sector (mobile sources) that are estimated in the SIP to provide for maintenance of the ozone standard. The transportation conformity rule allows the MVEB to be changed as long as the total level of emissions from all sources remains below the attainment levels.

A “safety margin”, as defined in the transportation conformity rule (40 CFR part 93 subpart A), is the amount by which the total projected emissions from all sources of a given pollutant are less than the total emissions that would satisfy the applicable requirement for reasonable further progress, attainment, or maintenance. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Table 1 gives detailed information on the safety margin for the Illinois portion of the Greater Chicago Area. Table 1 includes a comparison of the VOC and NO X emissions in the year 2008 (Illinois' attainment year), to the projected emissions of VOC and NO X in the year 2025. The difference between the projected emissions in the year 2025 and the actual emissions in the year 2008 is referred to as the safety margin or the amount of excess emission reductions.

Illinois has requested the allocation of 12 tons/day of the VOC and 25 tons/day of NO X from the safety margins to the MVEBs. The revised maintenance plan will have a safety margin of 163.6 tons/day of VOC and 444.65 tons/day of NO X . The 2025 projected emissions, even with this allocation, will be below the 2008 attainment year emissions for both VOC and NO X . For this reason, EPA finds that the allocation of the safety margin to the 2025 MVEBs for the Illinois portion of the Greater Chicago Area meets the requirements of the transportation conformity regulations at 40 CFR part 93, and is approvable.

This action changes the MVEBs for mobile sources. The maintenance plan is designed to provide for future growth while still maintaining the ozone NAAQS. Growth in industries, population, and traffic is offset by reductions from cleaner cars and other emission reduction programs. Through the maintenance plan, the State and local agencies can manage and maintain clean air quality while providing for growth.

In the submittal, Illinois requested to allocate a portion of the safely margins for VOC and NO X to the 2025 MVEBs. Table 2 details the updated MVEBs for the 1997 8-hour ozone maintenance plan for the Illinois portion of the Greater Chicago Area. Table 2 shows the 2025 MVEBs for VOC and NO X (approved by EPA on August 13, 2012), the amount of excess emission reductions or safety margin to be allocated into the new MVEBs, and the new 2025 MVEBs for VOC and NO X .

EPA is approving a revision to the 1997 8-hour ozone maintenance plan for the Illinois portion of the Greater Chicago Area. The revision will change the MVEBs for VOC and NO X that are used for transportation conformity purposes. The revision will keep the total emissions for the area at or below the attainment level required by law. This action will allow State or local agencies to continue to maintain air quality while providing for transportation growth.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective July 21, 2014 without further notice unless we receive relevant adverse written comments by June 23, 2014. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective July 21, 2014.

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

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

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

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

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

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

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

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

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

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

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

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. 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 July 21, 2014. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

On November 9, 2011, the EPA partially approved and partially disapproved the San Joaquin Valley PM 2.5 State Implementation Plan (“SJV PM 2.5 SIP”) (76 FR 69896). The SJV PM 2.5 SIP is California's plan for attaining the 1997 PM 2.5 NAAQS in the San Joaquin Valley. 1 Our partial disapproval of the SJV PM 2.5 SIP was based on our determination that its contingency measure provisions failed to meet the requirements of Clean Air Act (“CAA” or “the Act”) section 172(c)(9), which require that the SIP for each PM 2.5 nonattainment area contain contingency measures to be implemented if the area fails to make reasonable further progress (RFP) or to attain the NAAQS by the applicable attainment date. See 76 FR 41338, 41357 to 41359 (July 13, 2011) (proposed partial approval and partial disapproval of SJV PM 2.5 SIP) and 76 FR 69896, 69918 to 69919 and 69924 (final partial approval and partial disapproval of SJV PM 2.5 SIP). The disapproval became effective on January 9, 2012, starting a sanctions clock for imposition of new source review offset sanctions 18 months after January 9, 2012, and highway sanctions 6 months after the imposition of offset sanctions, pursuant to CAA section 179 and our regulations at 40 CFR 52.31.

On July 3, 2013, CARB submitted the Contingency Measure SIP as a revision to the California State Implementation Plan. The Contingency Measure SIP addresses the SIP deficiencies identified in the EPA's 2011 partial disapproval of the SJV PM 2.5 SIP by (1) confirming that the SJV area had met its 2012 RFP milestones and (2) expanding upon the attainment contingency measures in the SJV PM 2.5 SIP to establish a contingency plan that achieves SIP-creditable emission reductions equivalent to approximately one year's worth of RFP in 2015. See generally Contingency Measure SIP. Among these SIP-creditable emission reductions are reductions from a contingency provision in the District's residential woodburning rule, Rule 4901, and reductions from the District's implementation of two incentive grant programs: The Carl Moyer Memorial Air Quality Standards Attainment Program (“Carl Moyer Program”) and the Proposition 1B: Goods Movement Emission Reduction Program (“Prop 1B”). Id. at 4 and 6. A detailed description of the Contingency Measure SIP can be found at 78 FR 53113, 53115 (August 28, 2013).

On August 28, 2013, we proposed to approve the Contingency Measure SIP as correcting the deficiency in the SJV PM 2.5 SIP related to the attainment contingency measure requirement (78 FR 53113). At the same time, we also proposed to find, based on documentation in the Contingency Measure SIP, that the RFP contingency measure requirement in CAA section 172(c)(9) for the 2012 milestone year was moot because the SJV has achieved the emission reduction benchmarks for the 2012 RFP year. Our full evaluation of the Contingency Measure SIP and our rationale for finding that this SIP corrects the deficiencies in the SJV PM 2.5 SIP can be found in the August 28, 2013 proposed rule. Based on our proposed approval of the Contingency Measure SIP, we also issued on August 28, 2013, an interim final determination that stayed the imposition of the offset sanctions that became effective in the SJV on July 9, 2013 and tolled the sanctions clock for the imposition of the highway sanctions (78 FR 53038).

The EPA provided a 30-day period for the public to comment on our proposed rule. During this comment period, which ended on September 28, 2013, we received four public comments. A copy of these comment letters can be found in the docket. We provide our responses to these comments below.

Comment 1: Earthjustice cites the D.C. Circuit Court of Appeals' decision in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013) (hereafter “ NRDC” ) to support its claim that the Contingency Measure SIP cannot be approved under the CAA. Specifically, Earthjustice argues that the EPA's approval of the SJV PM 2.5 SIP was built upon the EPA's 2007 implementation rule for the 1997 PM 2.5 NAAQS (hereafter “2007 PM 2.5 Implementation Rule”), 2 which the NRDC court has since remanded for failure to comply with the requirements of subpart 4 of title I, part D of the CAA; that the SJV PM 2.5 SIP and the reasonable further progress (RFP) projections therein likewise fail to satisfy the applicable requirements of subpart 4; and that because the contingency measure obligation is based upon the RFP projections in the SJV PM 2.5 SIP, the Contingency Measure SIP is also flawed.

Earthjustice argues that the most significant defect in the SJV PM 2.5 SIP is that it assumes the maximum available attainment deadline without implementing best available control measures (BACM) under CAA section 189(b)(1)(B), and that because of this erroneous attainment date the RFP trajectory in the SJV PM 2.5 SIP provides for a 9-year attainment “glide path” that fails to comply with the CAA. Under subpart 4, Earthjustice argues, nonattainment areas relying on reasonably available control measures have four years to attain and thus have a contingency measure obligation of 25 percent of the total reductions required for attainment, rather than the one-ninth of total reductions provided in the Contingency Measure SIP. Alternatively, Earthjustice argues that had the SJV qualified for an extended attainment deadline under CAA section 188(b)(1), the District would have had to implement BACM, which would have provided for steeper emission reductions than currently provided in the SJV PM 2.5 SIP which is based on the implementation of reasonably available controls.

Earthjustice further contends that because the SJV area has failed to attain the PM 2.5 standard by the “moderate” area deadline in subpart 4, a new plan with new controls and an attainment horizon that is less than 9 years is required. Earthjustice states that this new plan must include new RFP targets and contingency measures, and that the calculation of these targets will require more than one-ninth of the total reductions required, because the interval between the baseline for the serious area plan and the attainment deadline will be less than nine years. Thus, according to Earthjustice, “no matter how the SJV chooses to comply with subpart 4, there is no scenario in which the RFP trajectory and therefore the quantity of emission reductions required for contingency measures will match those calculated in the [SJV PM 2.5 SIP].”

Response 1: As a threshold matter, to the extent the commenter is challenging our November 2011 final action on the SJV PM 2.5 SIP based on the D.C. Circuit's January 2013 decision in NRDC, such a challenge may only be brought in the appropriate circuit court within specified timeframes under CAA section 307(b). Section 307(b)(1) provides, inter alia, that any petition for review of an EPA action in “approving or promulgating any implementation plan under [CAA section 110] * * * which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit” and must be filed “within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register , except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise.” Our action today on the Contingency Measure SIP is not the appropriate forum for a challenge to our November 2011 final action on the SJV PM 2.5 SIP.

We nonetheless respond below to the substance of Earthjustice's claims. In NRDC, the U.S. Court of Appeals for the D.C. Circuit remanded the EPA's 2007 PM 2.5 Implementation Rule, 3 holding that the EPA erred in implementing the 1997 PM 2.5 standards solely pursuant to the general implementation provisions of subpart 1 of part D, title I of the CAA, without also considering the particulate matter-specific provisions of subpart 4. The court directed the EPA to re-promulgate the rule pursuant to subpart 4 of part D, title I of the Clean Air Act but declined to impose a deadline by which the Agency must do so. See 706 F.3d 428, 437 and n. 10. This decision has no bearing on our action on the Contingency Measure SIP.

Earthjustice's arguments rest on the premise that the NRDC decision necessarily invalidates our November 2011 final action on the SJV PM 2.5 SIP (76 FR 69896, November 9, 2011) and therefore renders flawed any assessment of contingency measure obligations derived from that plan. Nothing in NRDC, however, indicates the court intended to automatically invalidate other EPA rulemakings that were based in whole or in part on the 2007 PM 2.5 Implementation Rule. Indeed, the D.C. Circuit remanded but did not vacate the 2007 PM 2.5 Implementation Rule, 4 citing in its opinion (at 706 F.3d at 437 n. 10) a prior decision in which it held that “it is appropriate to remand without vacatur in particular occasions where vacatur `would at least temporarily defeat . . . the enhanced protection of the environmental values covered by [the EPA rule at issue].' ” North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). Our November 2011 final action on the SJV PM 2.5 SIP included approval of District commitments to adopt and implement specific control measures on a fixed schedule and State and District commitments to achieve specific amounts of NO X , SO X and direct PM 2.5 emission reductions by fixed dates. See 76 FR 69896, 69924 (November 9, 2011), codified at 40 CFR 52.220(c)(392) and (c)(395). Absent an EPA rulemaking to withdraw or revise this final rule, which NRDC does not compel, our final action on the SJV PM 2.5 SIP remains effective and these State and District commitments remain federally-enforceable requirements of the California SIP. 5 We therefore disagree with the commenter's assertion that the RFP projections in the SJV PM 2.5 SIP render the Contingency Measure SIP flawed.

Additionally, we do not believe that the NRDC court's January 4, 2013 decision should be interpreted so as to retroactively impose subpart 4 requirements on the state in the context of our action on this corrective SIP, as the timing and nature of the court's decision compound the consequences of disapproval based on such retroactive application here. 6 California submitted the various components of the SJV PM 2.5 SIP (and revisions thereto) between June 2008 and July 2011. On July 13, 2011, we proposed to approve all elements of the SJV PM 2.5 SIP except for its contingency measure provisions and described the specific deficiencies in the contingency measures that California would need to address in a corrective SIP submission in order to avoid mandatory sanctions (76 FR 41338, 41358 to 41359, 41361, July 13, 2011). We finalized this partial approval and partial disapproval action on November 9, 2011, effective January 9, 2012, starting a sanctions clock for imposition of offset sanctions 18 months after January 9, 2012 and highway sanctions 6 months later, pursuant to CAA section 179(b) and the EPA's regulations at 40 CFR 52.31 (76 FR 69896, 69924, November 9, 2011) (final rule partially approving and partially disapproving SJV PM 2.5 SIP). 7 We stated in the final rule that “[n]either sanction [would] be imposed under the CAA if California submits and we approve prior to the implementation of the sanctions, SIP revisions that correct the deficiencies identified in our proposed action.” Id. California reasonably relied upon this statement to develop a SIP submission addressing the deficiencies identified in the July 2011 proposed action—i.e., a SIP submission containing contingency measures that achieve emission reductions equivalent to one year's worth of RFP, on a pollutant-specific basis, which are in excess of the emission reductions relied on for RFP and attainment in the SJV PM 2.5 SIP (76 FR 41338, 41358 to 41359, 41361, July 13, 2011).

Over a year later, on January 4, 2013, the D.C. Circuit issued its decision remanding the EPA's 2007 PM 2.5 Implementation Rule. By this time, just six months remained before mandatory offset sanctions would apply in the SJV under CAA section 179(b) unless the State submitted and we approved a SIP revision correcting the deficiencies that prompted the EPA's disapproval. On June 20, 2013, the District adopted the Contingency Measure SIP, which it had developed to address the deficiencies identified in the 2011 action on the SJV PM 2.5 SIP, and CARB submitted this corrective SIP on July 3, 2013. 8 We proposed to approve the Contingency Measure SIP on August 28, 2013 (78 FR 53113). Concurrently, we issued an interim final determination to stay offset sanctions and defer highway sanctions in the SJV area, based on our “proposal to approve the State's SIP revision as correcting the deficiency that initiated these sanctions” (78 FR 53038, August 28, 2013). 9 To disapprove this corrective SIP submission now, based on a retroactive application of subpart 4 requirements to the SJV PM 2.5 SIP, would immediately subject the SJV area to offset sanctions and highway sanctions under the EPA's sanction application sequencing rule in 40 CFR 52.31(d)(2)(ii). 10 We believe it would be unreasonable to now disapprove this SIP submission, which corrects the deficiencies we had identified, and subject the SJV area to mandatory sanctions solely because the State did not address subpart 4 requirements of which it had no notice. 11

Moreover, it is not clear what RFP projections would result from the new subpart 4 plan that Earthjustice calls for and, consequently, it is impossible for the State to quantify a contingency measure obligation based on such a new plan before it is developed. 12 It would be even more unreasonable to disapprove this corrective SIP submission on the basis of RFP trajectories that cannot currently be ascertained, particularly given the lengthy rulemakings that would be necessary for the State to develop a new plan under subpart 4 with new RFP targets and a new attainment deadline, and the likely economic hardship that would result from continued application of mandatory offset and highway sanctions during this time. The D.C. Circuit recognized the inequity of this type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002), where it upheld the district court's ruling refusing to make retroactive the EPA's determination that the St. Louis area did not meet its attainment deadline. In that case, petitioners urged the court to make the EPA's nonattainment determination effective as of the date that the statute required, rather than the later date on which the EPA actually made the determination. The court rejected this view, stating that applying it “would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans * * * even though they were not on notice at the time.” Id. at 68. Similarly, it would be unreasonable to penalize California by rejecting this corrective SIP on the basis of subpart 4 requirements of which the State was unaware when we partially disapproved the SJV PM 2.5 SIP, particularly when relief from mandatory sanctions would not be available until after the State completes a lengthy rulemaking process to adopt an entirely new plan under subpart 4.

In separate rulemakings, the EPA has taken steps to respond to the NRDC decision by addressing the applicable requirements of subpart 4 for areas designated nonattainment for the 1997 PM 2.5 NAAQS and/or the 2006 PM 2.5 NAAQS. For example, the EPA recently completed a rulemaking to classify all PM 2.5 nonattainment areas nationwide, including the San Joaquin Valley, as “moderate” nonattainment under subpart 4 and to establish a December 31, 2014 deadline for the states to submit any additional SIP revisions that may be necessary to satisfy the requirements applicable to moderate nonattainment areas under CAA section 189(a). See 78 FR 69806 (November 21, 2013) (proposed rule) and “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS,” signed April 25, 2014 (final rule, pre-publication copy). As explained in that rulemaking, the EPA recognizes that prior to the D.C. Circuit's decision in NRDC, states have worked towards meeting the air quality goals of both the 1997 PM 2.5 standards and the 2006 PM 2.5 standards in accordance with EPA regulations and guidance derived from subpart 1, including the requirements of the 2007 PM 2.5 Implementation Rule (78 FR 69806, 69809). Taking this history into account, the EPA concluded that a December 31, 2014 deadline would provide states a relatively brief but reasonable amount of time to ascertain whether and to what extent any additional SIP submissions would be needed to satisfy the applicable requirements of subpart 4 in a particular nonattainment area and to develop, adopt and submit any such SIPs. See id. The EPA explicitly stated that this rulemaking “does not affect any action that the EPA has previously taken under section 110(k) of the Act on a SIP for a PM 2.5 nonattainment area.” Id. at 69810.

Accordingly, California is obligated to consider whether and to what extent any additional SIP submissions may be required to satisfy the applicable requirements of subpart 4 for the 1997 and/or 2006 PM 2.5 NAAQS in the SJV and to develop, adopt and submit any such SIPs, following reasonable notice and public hearings, no later than December 31, 2014. In the meantime, our November 2011 final action remains in effect and continues to provide the appropriate basis for calculating the required quantity of emission reductions in this corrective SIP. We believe it is appropriate to address the NRDC decision on a prospective rather than retrospective basis by maintaining the environmental benefits of air quality plans that the EPA has previously approved while working with state and local agencies to supplement these prior submissions as necessary going forward. Our approval of the Contingency Measure SIP today does not obviate the State's obligation to submit these additional SIP revisions, consistent with the requirements of subpart 4, including additional contingency measures as necessary.

Comment 2: Earthjustice argues that the EPA cannot claim that the Contingency Measure SIP and the SJV PM 2.5 SIP are consistent with the implementation rule remanded by the D.C. Circuit pending adoption of a new implementation rule. According to Earthjustice, subpart 4 is self-effectuating and directly-enforceable and does not require EPA regulations in order for states to know their planning obligations. Additionally, Earthjustice states that the EPA has already adopted guidance interpreting subpart 4 in “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992) (hereafter “General Preamble”) and in “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (59 FR 41998, August 16, 1994) (hereafter “Addendum”). According to Earthjustice, the requirements of subpart 4 are plain on their face and well understood, and the NRDC holding means that these requirements have always applied to PM 2.5 nonattainment plans notwithstanding the EPA's efforts to avoid them.

Response 2: It appears Earthjustice is arguing that NRDC compels us to disapprove the Contingency Measure SIP based on a retroactive application of subpart 4 requirements to the underlying SJV PM 2.5 SIP. We disagree with this assertion. As explained above, we do not believe it would be reasonable to disapprove this corrective SIP based on a finding that the underlying attainment and RFP demonstrations in the SJV PM 2.5 SIP, which we fully approved in 2011, now fail to satisfy subpart 4 requirements of which the State had no notice. As discussed in our proposal (78 FR 53113, 53123), the Contingency Measure SIP corrects the deficiencies that prompted the partial disapproval of the SJV PM 2.5 SIP in 2011. We believe our approval of this corrective SIP submission today is appropriate in light of the State's reasonable reliance on the 2011 final action, the significant consequences of a disapproval based on retroactive application of subpart 4 requirements in this context, and the EPA's separate rulemaking to establish reasonable timeframes for states to submit additional SIPs that may be required to satisfy the requirements of under subpart 4. See Response 1.

The commenter does not appear to challenge our position that the general contingency measure requirement in subpart 1 (CAA section 172(c)(9)) continues to govern our evaluation of and action on the Contingency Measure SIP. 13 Under the EPA's long-standing policy, which pre-dates the 2007 PM 2.5 Implementation Rule by more than a decade, contingency measures in a SIP should consist of available control measures beyond those required in the control strategy to attain the standards or demonstrate RFP, provide SIP-creditable emission reductions equal to approximately one year of the emission reductions needed for RFP, and be implemented without further action by the State. See General Preamble at 13543 to 13544 (discussing contingency measures for moderate PM 10 nonattainment areas); see also Addendum at 42014 to 42015 (discussing contingency measures for serious PM 10 nonattainment areas). We are approving the Contingency Measure SIP because it meets these criteria as applied to the SJV PM 2.5 SIP and because it corrects the deficiencies that prompted the 2011 partial disapproval of that plan (78 FR 53113, 53123).

Our approval of the Contingency Measure SIP today does not rest on a conclusion that compliance with the 2007 PM 2.5 Implementation Rule remanded by the court suffices to satisfy CAA requirements pending adoption of a new implementation rule, nor does the EPA believe an implementation rule is necessary for states to know their planning obligations under subpart 4. Indeed, although the EPA has not yet issued a new or revised implementation rule consistent with the court's directive in NRDC, the EPA has established a December 31, 2014 deadline for all states with PM 2.5 nonattainment areas to submit any additional SIPs that may be required under subpart 4, following consultation as appropriate with EPA regional offices. See “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS,” signed April 25, 2014 (final rule, pre-publication copy). To the extent any revisions to the SJV PM 2.5 SIP are necessary to ensure compliance with the requirements of subpart 4, California is required to adopt and submit such SIP revisions by December 31, 2014, including additional contingency measures as appropriate.

Comment 3: Earthjustice comments that the EPA cannot claim as a basis for approval that the Contingency Measure SIP satisfies the obligations identified in the EPA's 2011 final action on the SJV PM 2.5 SIP because that plan does not comply with the Act. Earthjustice contends that the approval of the Contingency Measure SIP would “compound the legal defects of the [SJV PM 2.5 SIP]” and that we should act immediately to “call” the SJV PM 2.5 SIP under CAA section 110(k)(5) because we now know that the plan fails to comply with the requirements of the Act. In the meantime, Earthjustice asserts that we cannot add to the legal defects by approving contingency measures that are based on a defective plan. In support of these arguments, Earthjustice cites Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011), reprinted as amended on January 27, 2012, 686 F.3d 668, further amended February 13, 2012 (“ AIR” ).

Response 3: We disagree with these arguments. First, as discussed above, nothing in NRDC compels us to retroactively apply subpart 4 requirements to the SJV PM 2.5 SIP and to disapprove the Contingency Measure SIP on that basis. Absent an EPA rulemaking to withdraw or revise our November 2011 final action on the SJV PM 2.5 SIP (76 FR 69896, November 9, 2011), that final action remains effective and provides an appropriate basis for our evaluation of the State's corrective SIP submission in accordance with the EPA's long-standing policies on contingency measures. See Response 1.

Second, the EPA's discretionary “SIP call” authority in CAA section 110(k)(5) is not relevant to this action as we have not made any of the findings that would obligate us to “call” the SJV PM 2.5 SIP. Section 110(k)(5) provides, in relevant part, that “[w]henever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant [NAAQS] . . . or to otherwise comply with any requirement of [the CAA],” the EPA “shall require the State to revise the plan as necessary to correct such inadequacies” and may establish reasonable deadlines, not to exceed 18 months after providing notice to the State, for the submission of such plan revisions. CAA section 110(k)(5), 42 U.S.C. 7410(k)(5). Should we find that the SJV PM 2.5 SIP is “substantially inadequate to attain or maintain” the 1997 PM 2.5 NAAQS or to otherwise comply with any requirement of the Act, we would be obligated to require that California revise the plan as necessary to correct such inadequacies (i.e., to issue a “SIP call”) and would be authorized to establish reasonable deadlines for the State to submit such plan revisions, not to exceed 18 months after the EPA notifies the State of the inadequacies. To date, however, we have not made any such finding under section 110(k)(5) with respect to the SJV PM 2.5 SIP. The EPA believes that its recent rulemaking to classify all PM 2.5 nonattainment areas as “moderate” nonattainment and to set a December 31, 2014 deadline for subpart 4 SIP submissions provides a reasonable timeframe for California to develop, adopt and submit any additional SIP submissions that are necessary to comply with the requirements of subpart 4 in the San Joaquin Valley. See “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS,” signed April 25, 2014 (final rule, pre-publication copy). Under CAA section 110(k)(5), the EPA retains the discretion to determine after this deadline for SIP submissions whether the PM 2.5 SIP for the SJV is substantially inadequate to comply with CAA requirements.

Finally, the Ninth Circuit Court of Appeal's decision in AIR is inapposite. AIR involved our action on proposed revisions to the SIP for the one-hour ozone standard for the Los Angeles-South Coast air basin (686 F.3d 668 at 671). An approved SIP for the area was in place, but after conducting new modeling for the one-hour ozone standard, California submitted proposed SIP revisions, including a revised attainment demonstration that relied on additional control measures. Id. at 672-73. California later withdrew certain of the proposed additional control measures and the State specifically represented that the currently approved plan was not sufficient to provide for attainment. Id. We approved the control measures that had not been withdrawn. Id. at 673. However, we disapproved the revised attainment demonstration because California had substantially based it upon emission reductions resulting from the withdrawn control measures. Id. This disapproval left in place the existing attainment demonstration, which the State had specifically characterized as deficient. Id. The Ninth Circuit held that our action was arbitrary and capricious, because we had a duty under CAA section 110(l) to evaluate whether the SIP, as a whole, would provide for attainment of the NAAQS when the EPA approved a revision to the already approved SIP. Id. at 673-74.

The circumstances here are significantly different from those in AIR. First, nothing in the record indicates that California considers any element of the currently approved SJV PM 2.5 SIP insufficient to provide for attainment of the 1997 PM 2.5 standards. Second, the Contingency Measure SIP neither revises nor replaces the attainment demonstration in the currently approved plan, nor does it alter any existing emission limitation or other control requirement in the applicable SIP. Finally, California has not withdrawn any control measures that provide emission reductions necessary for attainment of the 1997 PM 2.5 standards; to the contrary, the Contingency Measure SIP expands upon the contingency measure portion of the SJV PM 2.5 SIP by providing additional NO X , SO X , and direct PM 2.5 emission reductions beyond those relied upon for RFP and attainment in the SJV PM 2.5 SIP, thereby correcting the deficiency that we had identified in 2011 (78 FR 5311, 53123). In sum, nothing in the Contingency Measure SIP revises the currently approved attainment demonstration in the SJV PM 2.5 SIP, nor does any information in the State's submissions raise a question about the plan's sufficiency to provide for timely attainment of the 1997 PM 2.5 standards. The AIR decision therefore is not pertinent to our action.

For these reasons, we disagree with the commenter's claim that our approval of the Contingency Measure SIP would “compound” or “add to” existing legal defects in the SJV PM 2.5 SIP. Because our approval of the Contingency Measure SIP strengthens the SIP and does not interfere with the on-going process for ensuring that requirements for RFP and attainment of the 1997 PM 2.5 NAAQS are met, we find that it complies with CAA section 110(l). To the extent California is obligated to submit additional SIP revisions consistent with subpart 4 requirements by December 31, 2014, these outstanding obligations do not preclude approval today of the Contingency Measure SIP as adequate to correct prior SIP deficiencies that triggered sanctions clocks. See Response 1.

Comment 4: Earthjustice comments that the SJV PM 2.5 SIP fails to properly address PM 2.5 precursor emissions and that the EPA approved the plan based on the “illegal presumption” in the 2007 PM 2.5 Implementation Rule that VOC and ammonia need not be controlled. Earthjustice argues that because the NRDC court has rejected this presumption, without a showing that sources of these precursor emissions do not contribute significantly to PM 2.5 levels, they are subject to controls and therefore subject to separate contingency measure targets. Earthjustice further argues that the San Joaquin Valley APCD has made no such demonstration and that “the record currently before EPA suggests that these emissions do contribute significantly to ambient levels even though the District believes that a strategy focusing on oxides of nitrogen is better policy.” In support of these arguments, Earthjustice references our responses to comments regarding VOCs in our final action on the SJV PM 2.5 SIP (76 FR 69896, 69902).

Response 4: To the extent the commenter is challenging the November 2011 final action on the SJV PM 2.5 SIP based on the D.C. Circuit's January 2013 decision in NRDC, such a challenge may only be brought in the U.S. Court of Appeals for the appropriate circuit within specified timeframes under CAA section 307(b). We are today acting on a SIP revision submitted by the State to correct SIP deficiencies that prompted sanctions, and comments concerning the analyses underlying the November 2011 action on the SJV PM 2.5 SIP are not germane to this action. See Response 1.

As discussed above, the November 2011 final action on the SJV PM 2.5 SIP remains in effect and we believe that it would be unreasonable to retroactively apply the requirements of subpart 4 to our prior evaluation of the PM 2.5 precursor assessment in the SJV PM 2.5 SIP. Although the EPA has taken steps in a separate rulemaking to respond to the NRDC decision regarding subpart 4 and is requiring all states with PM 2.5 nonattainment areas, including California, to submit SIP revisions as necessary to address subpart 4 requirements no later than December 31, 2014, that rulemaking specifically notes that it does not affect any action that the EPA has previously taken under CAA section 110(k) on a SIP for a PM 2.5 nonattainment area. See 78 FR 69806, 69810 (November 21, 2013) and “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS,” signed April 25, 2014 (final rule, pre-publication copy). Accordingly, the RFP demonstration in the SJV PM 2.5 SIP remains the appropriate basis for our evaluation of the specific types and amounts of emission reductions provided by the Contingency Measure SIP at this time. See Response 1.

Even if the EPA takes the view that NRDC compels us to retroactively apply the requirements of subpart 4 to our prior evaluation of the PM 2.5 precursor assessment in the SJV PM 2.5 SIP, it is not clear at this time how such a reevaluation would affect the assessment of required contingency measures. The D.C. Circuit remanded the EPA's 2007 PM 2.5 Implementation Rule, including the presumptions concerning VOC and ammonia in 40 CFR 51.1002. 14 While expressly declining to decide the specific challenge to these presumptions ( see 706 F.3d at 437, n. 10 (D.C. Cir. 2013)), the court cited CAA section 189(e)  15 to support its observation that “[a]mmonia is a precursor to fine particulate matter, making it a precursor to both PM 2.5 and PM 10 ” and that “[f]or a PM 10 nonattainment area governed by subpart 4, a precursor is presumptively regulated.” 706 F.3d at 436, n. 7 ( citing CAA section 189(e), 42 U.S.C. 7513a(e)). The NRDC court did not, however, address whether and how it was substantively necessary to regulate any specific precursor in a particular PM 2.5 nonattainment area. Moreover, even assuming both VOC and ammonia must be regulated for purposes of attaining the 1997 PM 2.5 standards in the SJV, it is not clear what collection of control measures for which specific precursors would ultimately be necessary to satisfy the requirements in subpart 4 concerning reasonably available control measures (CAA section 189(a)(1)(C)), best available control measures (CAA section 189(b)(1)(B)), or quantitative milestones demonstrating RFP (CAA section 189(c)). See, e.g., General Preamble at 13540 to 13541 (discussing technological feasibility, cost of control, and “de minimis” emission levels among factors to be considered in determining RACM and RACT for a particular PM 10 nonattainment area); see also Addendum at 42011 to 42014 (distinguishing BACM from RACM standard and discussing factors to be considered in determining BACM and BACT for a particular PM 10 nonattainment area, including technological and economic feasibility). Given that it is thus currently impossible to identify the precise collection of control measures that would be necessary in a new subpart 4 plan, let alone to quantify the emission reductions that these measures would collectively achieve and then calculate the reductions that would be required for associated contingency measure purposes, 16 we do not believe it would be reasonable to penalize the State at this time for failure to carry out these tasks in the past. The State and District must first address these issues as appropriate through adoption of a SIP revision satisfying the requirements of subpart 4, which is due December 31, 2014.

Under the commenter's read of NRDC, relief from mandatory sanctions for SIP deficiencies identified prior to the NRDC decision would be unavailable to California until it completes lengthy State and local rulemaking processes to develop and adopt an entirely new attainment plan that satisfies the requirements of subpart 4, requirements that are not yet due and that we have not, to date, identified as bases for plan disapproval. We decline to read the court's decision in a way that would lead to such an inequitable and retroactive result.

Comment 5: Earthjustice claims that the alleged legal defects of the SJV PM 2.5 SIP preclude the EPA from determining that the proposed contingency measures are “beyond or in addition to” the core control requirements of the CAA. Earthjustice argues that this problem is most apparent in the EPA's treatment of the contingency provision in the District's residential woodburning rule, Rule 4901. Citing our November 2011 responses to comments on the SJV PM 2.5 SIP (76 FR 69896, 69904), Earthjustice states that we did not require implementation of this measure as a basic control measure on the basis that it would not “advance attainment” by at least a year and argues that this justification “is no longer sufficient if the area is subject to the [BACM] requirement, as it must be given that it has failed to attain within four years of its designation as nonattainment for PM 2.5 .” Earthjustice asserts that BACM are more stringent than reasonably available controls and cannot be rejected based on whether or not they advance attainment, and that credit for the Rule 4901 contingency measure is therefore inappropriate. Furthermore, Earthjustice asserts that our 2009 approval of Rule 4901 as BACM for PM 10 is “not sufficient for concluding that improvements such as those included in the proposed contingency measure are beyond [BACM]” as the necessary demonstration has not been made and “there is no reason to believe that the lower trigger included in the proposed contingency measure is not technically feasible or cost-effective.” Noting that the problems associated with PM 2.5 in the Valley are different than those associated with PM 10 , Earthjustice cites the preamble to the EPA's 2007 PM 2.5 Implementation Rule (72 FR 20617) to support its conclusion that “past determinations on the adequacy of control measures cannot substitute for a new demonstration for a new state implementation plan.”

Response 5: As noted above, it appears the commenter is challenging the November 2011 final action on the SJV PM 2.5 SIP based on the D.C. Circuit's January 2013 decision in NRDC. Such a challenge, however, may only be brought in the U.S. Court of Appeals for the appropriate circuit within specified timeframes under CAA section 307(b). We are today acting on a SIP revision submitted by the State to correct SIP deficiencies that prompted sanctions, and comments concerning the analyses underlying the EPA's November 2011 action on the SJV PM 2.5 SIP are not germane to this action. See Response 1.

We nonetheless respond below to the substance of the commenter's claims. To the extent the commenter is arguing that our action today on the Contingency Measure SIP constitutes a determination that the contingency provision in Rule 4901 is “beyond BACM,” this is incorrect. We have not yet made any determination concerning BACM for PM 2.5 in the SJV and make no such determination today, as the area has not been classified as a “Serious Area” area under subpart 4 and the State therefore has not submitted a Serious Area plan for SJV for any PM 2.5 standard. See CAA section 189(b)(1)(B) (requiring that “each State in which all or part of a Serious Area is located” submit a plan for such area that includes BACM for the control of PM 10 ) and section 189(b)(2) (requiring submission of BACM provisions “no later than 18 months after reclassification of the area as a Serious Area”). Although Earthjustice suggests that we are relying on the Agency's prior (2009) approval of Rule 4901 as BACM for the control of PM 10 as a basis for today's action, this suggestion is also incorrect. As part of the 2011 action on the SJV PM 2.5 SIP, we concluded that the contingency provision in Rule 4901 was not a required RACM under CAA section 172(c)(1)  17 and that it qualified for consideration as a contingency measure because it provided emission reductions beyond those relied upon for RFP or attainment in that plan. See 76 FR 41338, 41358 (July 13, 2011) and 76 FR 69896, 69904 and 69906 (November 9, 2011). We disagree with the commenter's claim that we must now also conclude that the contingency provision in Rule 4901 is not a required BACM under CAA section 189(b)(1)(B).

Likewise, we disagree with the commenter's contention that our November 2011 rationale for not requiring implementation of this measure as a basic control measure (i.e., on the basis that it would not “advance attainment” by at least a year) is no longer sufficient because the area has failed to attain within four years of its designation as nonattainment for PM 2.5 and is, therefore, now subject to the BACM requirement. Under the CAA, BACM is required only for nonattainment areas classified as serious (CAA section 189(b)(1)(B)). The SJV area is currently classified as moderate nonattainment. See “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS,” signed April 25, 2014 (final rule, pre-publication copy). Whether or not the SJV area has attained the 1997 PM 2.5 standards to date, in the absence of an EPA rulemaking to reclassify the area as a Serious Area under subpart 4, the requirement to submit a Serious Area plan that assures implementation of BACM does not apply (CAA sections 189(b)(1)(B) and 189(b)(2)).

We note also that the commenter's reference to CAA section 188(c)(1) to support its contention that “[u]nder subpart 4, nonattainment areas relying on reasonably available controls have four years to attain” is not accurate. Section 188(c)(1) states that “[f]or a Moderate Area, the attainment date shall be as expeditiously as practicable but no later than the end of the sixth calendar year after the area's designation as nonattainment, except that, for areas designated nonattainment for PM 10 under section [107(d)(4) of the Act], the attainment date shall not extend beyond December 31, 1994” (CAA section 188(c)(1), 42 U.S.C. 7513(c)(1)). It appears that the commenter is interpreting the exception specified in the last clause of this provision to mean that the SJV PM 2.5 nonattainment area must attain the 1997 PM 2.5 NAAQS within four years of its designation as nonattainment for these standards. By its terms, however, this provision establishes an attainment date that has long passed (December 31, 1994) and applies only to those areas that were designated by operation of law under CAA section 107(d)(4) as nonattainment for the PM 10 NAAQS, pursuant to the CAA Amendments of 1990. See CAA section 107(d)(4)(B), 42 U.S.C. 7407(d)(4)(B) (establishing nonattainment designations by operation of law for certain areas identified by the EPA as “Group I” areas prior to November 15, 1990 and areas where air quality monitoring data showed a violation of the PM-10 NAAQS before January 1, 1989). This provision and the December 31, 1994 attainment date specified therein do not apply for purposes of establishing the applicable attainment date for an area designated nonattainment for the 1997 PM 2.5 NAAQS in 2005, such as the San Joaquin Valley.

If and when the EPA reclassifies the SJV area from “moderate” to “serious” nonattainment for a PM 2.5 standard under subpart 4, 18 California will be obligated to submit, no later than 18 months after such reclassification, SIP provisions to assure that BACM for PM 2.5 shall be implemented no later than 4 years after the date the area is reclassified, among other things (CAA sections 189(b)(1)(B) and 189(b)(2)). Contingency measures for any new or revised plan submitted to address subpart 4 requirements would have to provide emission reductions beyond those relied upon in the control strategy for that plan (i.e., for a “Serious Area,” measures that are “beyond BACM”).

We note that the possibility that a measure may be required as RACM or BACM in the future does not preclude its use as a contingency measure now. Likewise, an approval of a measure as a contingency measure now does not preclude a future determination that it is a required RACM or BACM under subpart 4. As the EPA explained in the Addendum, “if all or part of the moderate area plan contingency measures become part of the required serious area control measures (i.e., BACM), then additional contingency measures must be submitted whether or not the previously submitted contingency measures had already been implemented.” Addendum at 42015.

Comment 6: Earthjustice comments that because the RFP demonstration will change under a plan that complies with subpart 4, the assessment of the controls required for demonstrating RFP will also change. Earthjustice argues that without a new RFP demonstration, the EPA cannot determine whether the contingency measures are surplus to measures that are otherwise required by the Act.

Response 6: As explained above, we do not believe it would be reasonable to disapprove this corrective SIP based on a finding that the underlying attainment and RFP demonstrations in the SJV PM 2.5 SIP, demonstrations that we fully approved in 2011, now fail to satisfy subpart 4 requirements of which the State had no notice. As discussed in our proposal (78 FR 53113, 53123), the Contingency Measure SIP corrects the deficiencies that prompted the partial disapproval of the SJV PM 2.5 SIP in 2011. We believe our approval of this corrective SIP submission today is appropriate in light of the State's reasonable reliance on our 2011 final action, the significant consequences of a disapproval based on retroactive application of subpart 4 requirements in this context, and the EPA's separate rulemaking to establish reasonable timeframes for states to submit additional SIPs that may be required under subpart 4 consistent with the NRDC decision. See Response 1.

Comment 7: Earthjustice comments that “Congress was not willing to let states merely `promise' to protect air quality” and that CAA section 110(a) requires states to formulate plans for meeting and maintaining compliance with the NAAQS which “include enforceable emission limitations and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights) . . . as may be necessary or appropriate to meet the applicable requirements of this chapter. . . .” Earthjustice states that even those nontraditional techniques for reducing pollution (economic incentives, marketable permits, and auctions of emissions rights) authorized by section 110(a)(2)(A) must be “enforceable,” meaning that the EPA and citizens must have the ability to bring enforcement actions to assure compliance. Earthjustice further asserts that “[a] state cannot claim SIP credit from control measures that shield pollution sources from independent enforcement actions.” In support of these statements, Earthjustice references the EPA's statements in “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992) (hereafter “General Preamble”); “Improving Air Quality with Economic Incentive Programs,” U.S. EPA, Office of Air and Radiation, January 2001 (EPA-452/R-01-001) (hereafter “2001 EIP Guidance”); and the February 4, 2013 docket memorandum for a rulemaking entitled “State Implementation Plans: Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction” (EPA-HQ-OAR-2012-0322) (hereafter “2013 SSM Memo”).

Response 7: We agree generally with the statement that the CAA requires states to submit implementation plans including measures that the EPA and citizens can enforce. As the commenter notes, the EPA has long interpreted CAA section 110(a) to mean that control measures and other means of achieving emission reductions in a SIP, including “nontraditional techniques for reducing pollution [such as] economic incentives, marketable permits, and auctions of emissions rights,” must be “enforceable” (General Preamble at 13556). We disagree, however, with Earthjustice's suggestion that the emission reductions identified in the Contingency Measure SIP are not enforceable because they are based on “measures that shield pollution sources from independent enforcement actions.” As explained below in Response 8 through Response 15, all of the measures relied upon in the Contingency Measure SIP are directly enforceable by the State and/or District against pollution sources, and the District's commitments concerning the incentive-based emission reductions are also enforceable by the EPA and citizens under the CAA. Nothing in the Contingency Measure SIP “shields” pollution sources from enforcement actions brought by the State or District. See Response 8 through Response 15.

Comment 8: Earthjustice highlights both the EPA's enforcement authority in CAA section 113 and the citizen suit provision in CAA section 304 as indication that “Congress was not willing to rely on states alone to guarantee that the claimed emission reductions would occur or be enforced.” Citing Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 560 (1986), Earthjustice states that “[t]he Supreme Court has found that `Congress enacted 304 specifically to encourage citizen participation in the enforcement of standards and regulations established under this Act, and intended the section to afford citizens very broad opportunities to participate in the effort to prevent and abate air pollution.' ” Additionally, Earthjustice states that “[t]his notion that SIPs must be built upon emission reductions that are capable of being enforced by EPA and citizens pervades a number of EPA policies regarding SIP approvability.” For example, Earthjustice states that the “EPA will not approve control measures that include `director discretion' to define or redefine compliance requirements” and that the EPA also will “not allow SIPs to include state affirmative defenses that would foreclose EPA or other enforcement.” In support of these statements, Earthjustice references EPA statements in the 2013 SSM Memo and in a memorandum dated September 20, 1999, from Steven A. Herman, Assistant Administrator for Enforcement and Compliance, to Regional Administrators, entitled “State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (hereafter “1999 SSM Guidance”). Earthjustice asserts that the two main contingency measures relied upon by the District—excess emission reductions from State mobile source measures and emission reductions achieved through incentive programs—fail to meet these criteria for enforceability.

Response 8: We agree generally with the commenter's statement that SIPs must be built upon emission reductions that the EPA and citizens can enforce under CAA sections 113 and 304, respectively. We disagree, however, with the commenter's assertion that the contingency measures relied upon by the District contain any impermissible “director discretion” or “affirmative defense” provisions that may bar EPA or citizen enforcement of these measures or otherwise fail to meet the Act's requirements for enforceability.

As Earthjustice correctly states, the EPA has stated in long-standing policy that it would not approve into a SIP any “director discretion” or “affirmative defense” provision that would bar the EPA or citizens from enforcing applicable SIP requirements, as such provisions would be inconsistent with the regulatory scheme established in title I of the Act. See 2013 SSM Memo at 11-13 (quoting 1999 SSM Guidance at 3). Although some degree of state/local agency discretion in a SIP rule may be permissible if explicit and replicable procedures within the rule tightly define how the discretion will be exercised to assure equivalent emission reductions, the EPA has long stated that SIP provisions that include unbounded discretion for state personnel unilaterally to change or to grant variances from applicable SIP provisions are problematic and inconsistent with the requirements of the CAA. See “Guidance Document for Correcting Common VOC and Other Rule Deficiencies (a.k.a. The Little Bluebook),” U.S. EPA Region IX, originally issued April 1991, revised August 21, 2001; see also 78 FR 12460, 12485 to 12486 (February 22, 2013) (proposed findings of substantial inadequacy and SIP calls to amend provisions applying to excess emissions during periods of startup, shutdown, and malfunction) and 2013 SSM Memo at 13. With respect to “affirmative defenses,”  19 the EPA has stated in long-standing policy that a state may include in a SIP certain narrowly drawn affirmative defense provisions, which qualifying sources may utilize in enforcement proceedings under specified circumstances, but that a SIP may not contain any defense to injunctive relief or any provision that would enable a state to bar EPA or citizen enforcement of applicable requirements. See 2013 SSM Memo at 11-13; see also 1999 SSM Guidanceat 2.

Nothing in the Contingency Measure SIP authorizes either CARB or the District to modify the requirements of the SIP. As explained below in Response 13, the District has submitted enforceable commitments to account for specified amounts of NO X and PM 2.5 emission reductions to be achieved in 2015 through incentive programs and to adopt and submit substitute measures on a fixed schedule if the identified programs fail to achieve these emission reductions in 2015. Since the EPA is approving these commitments into the SIP, they are federally enforceable requirements of an applicable implementation plan, which cannot be modified except through a SIP revision adopted by the State after reasonable notice and public hearing and approved by the EPA through notice-and-comment rulemaking. See CAA sections 110(l) and 302(q), 5 U.S.C. section 553, and 40 CFR 51.105. Additionally, nothing in the Contingency Measure SIP creates grounds for an affirmative defense that could be used in proceedings to enforce the District's SIP commitments, nor does the Contingency Measure SIP contain any provision that could bar EPA or citizen enforcement of these SIP commitments. We therefore disagree with the commenter's suggestion that the Contingency Measure SIP contains any “director discretion” or “affirmative defense” provision that would undermine the enforceability of these emission reductions. We explain more fully below how the District's SIP commitments can be enforced by the EPA and citizens. See Response 10 through Response 15.

In addition, the EPA disagrees with the commenter's assertion that the CARB mobile source control measures relied upon in the Contingency Measure SIP are not creditable as contingency measures. As explained in Response 9 below, the EPA has historically allowed emission reduction credit for California motor vehicle emissions standards that have received waivers of federal preemption pursuant to the waiver approval process of CAA section 209 (“waiver measures”), without requiring California to submit the standards themselves to the EPA for approval as part of the California SIP. See, e.g., 76 FR 69896 (November 9, 2011) (final rule partially approving and partially disapproving SJV PM 2.5 SIP) and 77 FR 12652 (March 1, 2012) (final rule approving SJV 8-hour Ozone SIP). Waiver measures are substituted for federal mobile source control measures in California, and they become enforceable by the State once the EPA issues a waiver or authorization. Based on considerations of permanence, enforceability, and quantifiability, the EPA continues to believe that it is appropriate and consistent with the CAA to allow California to rely on emission reductions resulting from waiver measures in SIPs. See Response 9.

Comment 9: Earthjustice states that most of the CARB mobile source control measures relied upon to provide excess emission reductions are not approved into the SIP and, therefore, are not enforceable by the EPA or through independent citizen enforcement. Earthjustice states that the EPA is aware of this issue from previous comments on the 2008 PM 2.5 Plan and incorporates those comments by reference. 20 Earthjustice contends that because “the State is free to amend or rescind these measures altogether without EPA oversight,” these emission reductions are not creditable as contingency measures.

Response 9: We disagree with the commenter's argument that emission reductions from CARB mobile source control measures may not be credited as contingency measures. The EPA believes that credit for emission reductions from implementation of California mobile source rules that are subject to CAA section 209 waivers (“waiver measures”) is appropriate notwithstanding the fact that such rules are not approved as part of the California SIP. In our July 13, 2011 proposed action on the SJV PM 2.5 SIP and the technical support document for that proposal, we explained why we believe such credit is appropriate. See 76 FR 41338, 41345 (July 13, 2011) and “Technical Support Document and Responses to Comments, Final Rule on the San Joaquin Valley 2008 PM 2.5 State Implementation Plan,” U.S. EPA Region 9, September 30, 2011 (hereafter “2011 Final TSD”) at 101-105. Historically, the EPA has granted credit for the waiver measures because of special Congressional recognition, in establishing the waiver process in the first place, of the pioneering California motor vehicle control program and because amendments to the CAA (in 1977) expanded the flexibility granted to California in order “to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare,” (H.R. Rep. No. 294, 95th Congr., 1st Sess. 301-2 (1977)). In allowing California to take credit for the waiver measures notwithstanding the fact that the underlying rules are not part of the California SIP, the EPA treated the waiver measures similarly to the Federal motor vehicle control requirements, which the EPA has always allowed States to credit in their SIPs without submitting the program as a SIP revision. As we explained in the 2011 Final TSD (p. 87), credit for Federal measures, including those that establish on-road and nonroad standards, notwithstanding their absence in the SIP, is justified by reference to CAA section 110(a)(2)(A), which establishes the following content requirements for SIPs: “. . . enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), . . . , as may be necessary or appropriate to meet the applicable requirements of this chapter.” (emphasis added.) Federal measures are permanent, independently enforceable (by the EPA and citizens), and quantifiable without regard to whether they are approved into a SIP, and thus the EPA has never found such measures to be “necessary or appropriate” for inclusion in SIPs to meet the applicable requirements of the Act. CAA section 209 establishes a process under which the EPA allows California's waiver measures to substitute for Federal measures, and like the Federal measures for which they substitute, the EPA has historically found, and continues to find, based on considerations of permanence, enforceability, and quantifiability, that such measures are not “necessary or appropriate” for California to include in its SIP to meet the applicable requirements of the Act.

First, with respect to permanence, we note that, to maintain a waiver, CARB's on-road waiver measures can be relaxed only to a level of aggregate equivalence to the Federal Motor Vehicle Control Program (FMVCP) (CAA section 209(b)(1)). In this respect, the FMVCP acts as a partial backstop to California's on-road waiver measures (i.e., absent a waiver, the FMVCP would apply in California). Likewise, Federal nonroad vehicle and engine standards act as a partial backstop for corresponding California nonroad waiver measures. The constraints of the waiver process thus serve to limit the extent to which CARB can relax the waiver measures for which there are corresponding the EPA standards, and thereby serve an anti-backsliding function similar in substance to those established for SIP revisions in CAA sections 110(l) and 193. Meanwhile, the growing convergence between California and EPA mobile source standards diminishes the difference in the emission reductions reasonably attributed to the two programs and strengthens the role of the Federal program in serving as an effective backstop to the State program. In other words, with the harmonization of EPA mobile source standards with the corresponding State standards, the Federal program is becoming essentially a full backstop to most parts of the California program.

Second, as to enforceability, we note that the waiver process itself bestows enforceability onto California to enforce the on-road or nonroad standards for which the EPA has issued the waiver. CARB has as long a history of enforcement of vehicle/engine emissions standards as the EPA, and CARB's enforcement program is equally as rigorous as the corresponding EPA program. The history and rigor of CARB's enforcement program lends assurance to California SIP revisions that rely on the emission reductions from CARB's rules in the same manner as the EPA's mobile source enforcement program lends assurance to other state's SIPs in their reliance on emission reductions from the FMVCP. While it is true that citizens and the EPA are not authorized to enforce California waiver measures under the Clean Air Act (i.e., because they are not in the SIP), citizens and the EPA are authorized to enforce EPA standards in the event that vehicles operate in California without either California or EPA certification.

As to quantifiability, the EPA's historical practice has been to give SIP credit for motor-vehicle-related waiver measures by allowing California to include motor vehicle emissions estimates made by using California's EMFAC (and its predecessors) motor vehicle emissions factor model in SIP inventories. The EPA verifies the emission reductions from motor-vehicle-related waiver measures through review and approval of EMFAC, which is updated from time to time by California to reflect updated methods and data, as well as newly-established emissions standards. (Emission reductions from the EPA's motor vehicle standards are reflected in an analogous model known as MOVES.) The EMFAC model is based on the motor vehicle emissions standards for which California has received waivers from the EPA but accounts for vehicle deterioration and many other factors. The motor vehicle emissions estimates themselves combine EMFAC results with vehicle activity estimates, among other considerations. See the 1982 Bay Area Air Quality Plan, and the related the EPA rulemakings approving the plan ( see 48 FR 5074 (February 3, 1983) for the proposed rule and 48 FR 57130 (December 28, 1983) for the final rule) as an example of how the waiver measures have been treated historically by the EPA in California SIP actions. 21 The SJV PM 2.5 SIP was developed using a version of the EMFAC model referred to as EMFAC2007, which the EPA has approved for use in SIP development in California. (73 FR 3464, January 18, 2008). Thus, the emission reductions that are from the California on-road “waiver measures” and that are estimated through use of EMFAC are as verifiable as are the emission reductions relied upon by states other than California in developing their SIPs based on estimates of motor vehicle emissions made through the use of the MOVES model.

Moreover, the EPA's waiver review and approval process is analogous to the SIP approval process. First, CARB adopts its emissions standards following notice and comment procedures at the state level, and then submits the rules to the EPA as part of its waiver request. When the EPA receives new waiver requests from CARB, the EPA publishes a notice of opportunity for public hearing and comment and then publishes a decision in the Federal Register following the public comment period. Once again, in substance, the process is similar to that for SIP approval and supports the argument that one hurdle (the waiver process) is all Congress intended for California standards, not two (waiver process plus SIP approval process). Second, just as SIP revisions are not effective until approved by the EPA, changes to CARB's rules (for which a waiver has been granted) are not effective until the EPA grants a new waiver, unless the changes are “within the scope” of a prior waiver and no new waiver is needed. Third, both types of final actions by the EPA—i.e., final actions on California requests for waivers and final actions on state submittals of SIPs and SIP revisions—may be challenged under section 307(b)(1) of the CAA in the appropriate United States Court of Appeals.

In the 2011 Final TSD (pp. 102-103), we indicated that we believe that section 193 of the CAA, the general savings clause added by Congress in 1990, effectively ratified our long-standing practice of granting credit for the California waiver rules because Congress did not insert any language into the statute rendering the EPA's treatment of California's motor vehicle standards inconsistent with the Act. Rather, Congress extended the California waiver provisions to most types of nonroad vehicles and engines, once again reflecting Congressional intent to provide California with the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare. Requiring the waiver measures to undergo SIP review in addition to the statutory waiver process is not consistent with providing California with the broadest possible discretion as to on-road and nonroad vehicle and engine standards, but rather, would add to the regulatory burden California faces in establishing and modifying such standards, and thus would not be consistent with Congressional intent. In short, we believe that Congress intended California's mobile source rules to undergo only one the EPA review process (i.e., the waiver process), not two.

In summary, the EPA has historically given SIP credit for waiver measures in our approval of attainment demonstrations and other planning requirements such as reasonable further progress and contingency measures submitted by California. We continue to believe that section 193 ratifies our long-standing practice of allowing credit for California's waiver measures notwithstanding the fact they are not approved into the SIP, and correctly reflects Congressional intent to provide California with the broadest possible discretion in the development and promulgation of on-road and nonroad vehicle and engine standards. Further, even without considering section 193, the Act's structure, evolution, and provision for the waiver of federal preemption for California mobile source emissions standards all support the EPA's long-standing interpretation of the CAA to allow California to rely on emission reductions resulting from waiver measures when developing SIP emission inventories, related attainment demonstrations, and contingency measures, even though the waiver measures are not in the SIP itself.

Comment 10: Referencing the District's commitments to monitor, assess, and report on program implementation and to remedy emission reduction shortfalls, Earthjustice characterizes the “contingency measure” as an “enforceable commitment to adopt measures as needed” and asserts that such “committal SIPs” have repeatedly been rejected by the courts. More fundamentally, Earthjustice argues, “this commitment does not create enforceable emission limits or control measures as required by section 110(a)(2)(A)” but rather “creates an enforceable duty to adopt such emission limits or control measures as contingency measures” (emphases in original). Earthjustice contends that this is a plain violation of section 110(a)(2)(A). Moreover, Earthjustice contends, “this duty already exists under section 172(c)(9), so this proposed contingency measure adds nothing beyond what is already required by law.”

Response 10: We disagree with the commenter's characterization of the District's commitments in the Contingency Measure SIP as a “committal SIP.” Courts have rejected the EPA's use of the “conditional approval” procedure in CAA section 110(k)(4) to permit states to postpone statutory SIP deadlines by submitting “committal SIPs” that contain no specific remedial measures but instead merely promise to adopt such measures in the future. See, e.g., Natural Resources Defense Council, Inc. v. EPA, et al, 22 F.3d 1125 (D.C. Cir. 1994) and Sierra Club v. EPA, 356 F.3d 296 (D.C. Cir. 2004). The District's commitments in the Contingency Measure SIP, however, are not promises to adopt measures in the future. Instead, these SIP commitments identify on-going emission reductions and current obligations that the District must satisfy on an ongoing basis. 22 Specifically, the District's SIP commitments obligate the District to track its ongoing implementation of the Prop 1B and Carl Moyer Program requirements for specific projects relied upon for SIP credit and to submit reports to the EPA, on an annual basis, that include detailed information regarding the type, location, and duration of each such project. See Response 13 (referencing SJVUAPCD Board Resolution No. 13-6-18 at pg. 3 and Rule 9610 at Section 4.5). As explained in supporting materials submitted by the District, all of the projects relied upon for SIP credit in the Contingency Measure SIP are subject to “already-executed, legally binding contracts” which ensure that the District's claimed emission reductions are currently being achieved. See SJVUAPCD, “Quantification of Contingency Reductions for the 2008 PM 2.5 Plan” (June 20, 2013) at 7, 8. Although the District's SIP commitments include an enforceable requirement to submit substitute measures in the event of a shortfall in expected emission reductions for 2015, this secondary obligation does nothing to undermine the District's current obligation to monitor, assess, and report on its implementation of the Prop 1B and Carl Moyer Program for the identified projects and the actual emission reductions achieved through these projects, consistent with the applicable requirements of Rule 9610. To the contrary, the secondary commitment to adopt and submit substitute measures is provided as an additional safeguard to ensure that, if the projects relied upon for SIP credit fail to achieve the expected emission reductions by the applicable implementation deadline (i.e., by December 5, 2015), the District will be required to implement a timely remedy, i.e., to adopt and submit substitute measures that achieve equivalent amounts of emission reductions by the same implementation deadline. 23 In sum, the District's SIP commitments establish current obligations as part of an enforceable sequence of actions leading to compliance with a December 5, 2015 emission reduction obligation, which the EPA or citizens may enforce under the CAA. See Response 13.

We also disagree with the commenter's characterization of the District's SIP commitments as a “duty to adopt” emission limits or control measures that violates the requirements of CAA section 110(a)(2)(A). CAA section 110(a)(2)(A) requires that each SIP “include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), . . . as may be necessary or appropriate to meet the applicable requirements of [the Act].” CAA section 110(a)(2)(A); see also CAA section 172(c)(6) (establishing substantively identical requirements for nonattainment areas). Thus, in addition to “emission limitations” and “control measures,” the Act allows for SIPs to be built upon other “means or techniques” as may be necessary or appropriate to provide for timely attainment of the NAAQS. See BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003), reh'g denied, 2004 U.S. App. LEXIS 215 (5th Cir., January 8, 2004) (noting expansion of the EPA's authority under section 110(a)(2)(A) following Congress' addition of the “means” and “techniques” and “as appropriate” language as part of the 1990 CAA Amendments). Moreover, as explained in the EPA's proposed rule, both CAA section 110(a)(2)(A) and section 172(c)(6) explicitly provide for the use of economic incentives as one tool for states to use to achieve attainment of the NAAQS. See 78 FR 53113, 53118 (quoting reference in CAA section 110(a)(2)(A) to “economic incentives such as fees, marketable permits, and auctions of emissions rights”). Nothing in the Act prohibits the District's use of economic incentives as part of a contingency measure plan that ensures an appropriate level of emission reduction progress if attainment is not achieved and additional planning by the State is needed.

The incentive programs relied upon in the Contingency Measure SIP provide emission reductions in excess of those relied on for RFP or for expeditious attainment in the SJV PM 2.5 SIP (78 FR 53113, 53123). These incentive programs do not alter any existing control requirement in the applicable SIP and do not interfere with any applicable requirement concerning attainment and RFP or any other applicable requirement of the Act. Id. The District has submitted a SIP commitment to comply with detailed requirements of the Prop 1B program and Carl Moyer Program guidelines through a sequence of actions leading to compliance with a December 2015 emission reduction obligation, which the EPA or citizens may enforce under CAA sections 113 and 304, respectively. See Response 13. For all of these reasons, we conclude that the District's SIP commitments are both enforceable “emission standards or limitations” as defined in CAA section 304(f)  24 and appropriate “means or techniques” for achieving NO X and PM 2.5 emission reductions under CAA sections 110(a)(2)(A) and 172(c)(6), and that these enforceable commitments are permissible components of a plan submitted to satisfy the attainment contingency measure requirement in CAA section 172(c)(9).

Comment 11: Earthjustice asserts that the EPA's reliance on the “enforceable commitment” to adopt control measures as an enforceable contingency measure is also a plain violation of section 172(c)(9), which requires that contingency measures “take effect . . . without further action by the State or the Administrator.” Citing the EPA's interpretive statements in the Addendum (59 FR 41998, August 16, 1994), Earthjustice contends that “[t]he commitment to adopt new rules and measures is a blatant attempt to allow the District to defer adoption of enforceable contingency measures until after the attainment failure occurs” and that “[t]his undermines the entire purpose of the contingency measure requirement.” Earthjustice concludes that the incentive program contingency measure therefore cannot be approved.

Response 11: We disagree. As explained in Response 10 above, the District's SIP commitments contain both a current obligation for the District to monitor, assess, and report on its ongoing implementation of the Prop 1B and Carl Moyer Program requirements with respect to specified projects and a secondary obligation for the District to implement a timely remedy, should the identified projects fail to achieve the expected emission reductions. These SIP obligations take effect without further action by the State or the Administrator, in accordance with CAA section 172(c)(9).

Additionally, consistent with the EPA's longstanding interpretation of the contingency measure requirement in CAA section 172(c)(9) as requiring that all actions needed to effect full implementation of contingency measures occur within 60 days after the EPA notifies the State of a failure to attain the NAAQS by the applicable attainment date, 25 the District's SIP commitments ensure that all actions needed to effect full implementation of the incentive-based emission reductions will occur no later than December 5, 2015. Should the EPA find based on the 2014 annual demonstration report that the required amounts of NO X and PM 2.5 emission reductions may not continue through 2015 as projected, the EPA will promptly notify the District of its potential obligation to implement substitute measures consistent with its Board commitment no later than December 5, 2015, so that the District has ample time for any rulemakings that may be necessary to meet this implementation deadline. Subsequently, should the EPA determine that the SJV area has failed to attain the 1997 PM 2.5 NAAQS by the applicable attainment date of April 5, 2015, 26 the District will be obligated under its SIP commitment either to confirm that the Prop 1B and Carl Moyer Program projects identified in the 2014 and 2015 annual demonstration reports will continue to achieve the required amounts of NO X and PM 2.5 emission reductions in December 2015 as projected, or to adopt and submit substitute measures achieving equivalent amounts of emission reductions (4.15 tpd of NO X reductions and 0.10 tpd of direct PM 2.5 reductions) no later than December 5, 2015. 27 See SJVUAPCD Board Resolution No. 13-6-18 at p. 3.

Earthjustice suggests that only those “substitute” measures that the District would be obligated to implement in the event of an emission reduction shortfall constitute enforceable contingency measures, and that the EPA's approval of this SIP commitment therefore impermissibly allows the District to delay adoption of required measures. As discussed above, however, the enforceable contingency measure here is the District's SIP commitment in its entirety, which includes a current obligation to monitor, assess, and report on the District's ongoing implementation of the Prop 1B and Carl Moyer Program requirements with respect to specified projects which collectively are expected to achieve 4.15 tpd of NO X reductions and 0.10 tpd of direct PM 2.5 reductions in 2015. This current obligation constitutes an enforceable measure in itself, and should the District fail to fully account for the required amounts of NO X and direct PM 2.5 emission reductions in annual demonstration reports submitted in 2014 and 2015 that satisfy the applicable requirements of Rule 9610, the EPA may make a finding of failure to implement the SIP under CAA section 179(a) and either the EPA or citizens may take enforcement action under CAA section 113 or 304, respectively. See Response 12 and Response 13. The secondary obligation to adopt and submit “substitute” measures is an additional safeguard to be effectuated only if the District fails to satisfy its current obligation to monitor, assess, and report on its ongoing emission reduction responsibilities. We therefore disagree with the commenter's assertion that the District's SIP commitment allows it to “defer adoption of enforceable contingency measures until after the attainment failure occurs.”

In sum, the District's SIP commitments establish current obligations on the District to take action well before the applicable attainment date to achieve the required emission reductions by December 5, 2015, whether through annual demonstration reports submitted in 2014 and 2015 or through adoption and submission of substitute measures to be implemented by December 5, 2015. Given the District's long history of successful implementation and enforcement of Prop 1B and Carl Moyer Program grants and the detailed requirements in the associated incentive program guidelines, as discussed in our technical support document for the proposed rule ( see U.S. EPA Region 9, “Technical Support Document, Proposed Approval of Clean Air Act Section 172(c)(9) Contingency Measures, San Joaquin Valley State Implementation Plan for Attainment of the 1997 PM 2.5 Standards,” August 15, 2013 (hereafter “Proposal TSD”)) and further in these responses to comments, we expect that the District's implementation of these program requirements for the identified projects will achieve the District's claimed 4.15 tpd of NO X reductions and 0.10 tpd of direct PM 2.5 reductions in 2015. However, should the EPA find based on documentation submitted by the District in 2014 that the required emission reductions may not occur in 2015 as projected, the District will be obligated under its SIP commitment to adopt and submit substitute measures achieving the required emission reductions by December 5, 2015. We find these SIP commitments adequate to ensure that an appropriate level of emission reduction progress will continue to be made should the SJV area fail to attain the 1997 PM 2.5 NAAQS by the applicable attainment date of April 5, 2015.

Comment 12: Earthjustice asserts that the incentive-based emission reductions are unenforceable by the EPA or citizens and that the EPA itself has described such emission reductions as “not enforceable against individual sources,” “voluntary,” and subject to a cap on SIP credit.

Response 12: We disagree with the commenter's assertion that these emission reductions are unacceptable because they are unenforceable by the EPA or citizens. As the commenter notes, the EPA has described “voluntary” measures as those that are not directly enforceable against individual sources and has recommended presumptive limits (sometimes referred to as “caps”) on the credit that may be allowed in a SIP for such measures. Such voluntary measures may be credited for SIP purposes only where the State submits other enforceable mechanisms to ensure that the required emission reductions are achieved, subject to EPA and citizen enforcement under the CAA. As discussed further below, the incentive-based emission reductions relied upon in the Contingency Measure SIP fall within the EPA's presumptive limits on credit for voluntary measures and are consistent with the EPA's recommendations for voluntary mobile source emission reduction programs. Additionally, these incentive-based emission reductions are consistent with the EPA's recommendations for discretionary economic incentive programs. We discuss below EPA's guidance on both voluntary measures and economic incentive programs (EIPs) and our rationale for concluding that the Contingency Measure SIP adequately addresses the applicable requirements of the Act, as described in these guidance documents.

The EPA believes that it is appropriate and consistent with the Act to allow a limited percentage of the total emission reductions needed to satisfy any statutory requirement to come from “voluntary” or “emerging” measures or other nontraditional measures and programs, where the State commits to certain safeguards and satisfies the statutory criteria for SIP approval. See, e.g., “Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in State Implementation Plans (SIPs),” October 24, 1997 (hereafter “1997 VMEP”) at 4-7; “Incorporating Emerging and Voluntary Measures in a State Implementation Plan,” September 2004 (hereafter “2004 Emerging and Voluntary Measures Policy”) at 8-12; and “Guidance on Incorporating Bundled Measures in a State Implementation Plan,” August 16, 2005 (hereafter “2005 Bundled Measures Guidance”) at 7-12. The EPA has described “voluntary measures” as measures or strategies that are not directly enforceable against individual sources, and “emerging measures” as those that are more difficult to accurately quantify than traditional SIP emission reduction measures. 28 See 1997 VMEP at 4; 2004 Emerging and Voluntary Measures Policy at 13, 19; and 2005 Bundled Measures Guidance at 2. “Voluntary” measures for stationary and area sources may include consumer-oriented programs to reduce the use of high-emitting paints or other consumer products during the ozone season; mechanisms to encourage pollution prevention or process changes at unregulated emission points; and voluntary wood stove changeout programs. See 2004 Emerging and Voluntary Measures Policy at 19, 20. “Voluntary” mobile source emission reduction programs (VMEPs)  29 may include employer-based transportation management programs to manage employee commute and travel behavior; area-wide rideshare incentives to encourage commuters to use alternatives to single-occupant vehicles; and auto restricted zones, no-drive days, or other limitations on vehicle use in a given geographic area. See 1997 VMEP at Attachment 1. “Emerging” measures include activities that indirectly reduce emissions by promoting more efficient energy use or that promote renewable resources (e.g., use of solar power, wind power, or biomass) and activities that improve air quality by means other than emission reductions (e.g., heat island measures that reduce criteria pollutant concentrations by lowering ambient temperatures). See 2004 Emerging and Voluntary Measures Policy at 14-15. Where a State submits a VMEP or other voluntary or emerging measure for SIP approval, the EPA evaluates it for consistency with four fundamental “integrity elements” and with SIP attainment and reasonable further progress (RFP) requirements, and to ensure that it does not interfere with other requirements of the Act. See 1997 VMEP at 6; see also 78 FR 53113, 53118 and Proposal TSD at 22-24.

In light of the increasing incremental cost associated with further stationary and mobile source emission reductions and the difficulty of identifying such additional sources of emission reductions, the EPA encourages innovative approaches to generating emission reductions through voluntary and emerging measures and other nontraditional measures and programs. See 1997 VMEP at 4-5; 2004 Emerging and Voluntary Measures Policy at 9; and 2005 Bundled Measures Guidance at 7. The EPA also recognizes, however, that these nontraditional measures raise novel issues related to enforceability and quantification of the associated emission reductions. Accordingly, the EPA's policies addressing nontraditional measures provide for some flexibility in meeting established SIP requirements for enforceability and quantification, provided the State takes clear responsibility for ensuring that the emission reductions necessary to meet applicable CAA requirements are achieved. See 1997 VMEP at 5-7; 2004 Emerging and Voluntary Measures Policy at 9; 2005 Bundled Measures Guidance at 7; and “Roadmap for Incorporating Energy Efficiency/Renewable Energy Policies and Programs into State and Tribal Implementation Plans,” July 2012 (hereafter “2012 Roadmap for EE/RE Programs”) at 37-38. Importantly, the EPA has consistently stated that any voluntary or other nontraditional measure submitted for SIP credit must be accompanied by an appropriate enforceable “backstop” commitment from the State to monitor emission reductions achieved and to rectify any shortfall in a timely manner. See, e.g., 1997 VMEP at 4-5; 2004 Emerging and Voluntary Measures Policy at 8-12; 2005 Bundled Measures Guidance at 7-12; and “Guidance on SIP Credits for Emission Reductions from Electric-Sector Energy Efficiency and Renewable Energy Measures,” August 5, 2004 (hereafter “2004 Electric-Sector EE/RE Guidance”) at 6-7. Thus, although the State is not necessarily responsible for implementing a program dependent on voluntary actions, the State is obligated to monitor, assess and report on the implementation of any such program and the associated emission reductions, and to remedy emission reduction shortfalls in a timely manner should the voluntary measure not achieve the projected emission reductions. See 1997 VMEP at 6-7. The EPA believes that voluntary measures, in conjunction with the enforceable commitment to monitor emission reductions achieved and rectify any shortfall, meet the SIP control measure requirements of the Act. See 1997 VMEP at 5 and 2004 Emerging and Voluntary Measures Policy at 8-9.

Given the innovative nature of these nontraditional measures, the EPA has recommended “presumptive” limits on the amounts of emission reductions from such measures that may be credited in a SIP. Specifically, for VMEPs, the EPA has identified a presumptive limit of three percent (3%) 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), 3% of the specific statutory requirement. See 1997 VMEP at 5. As explained in the 2001 EIP Guidance, the EPA recommended this 3% cap (per pollutant) on the credit allowed for VMEPs because states are “not required to play a direct role in implementing these programs, the programs are not directly enforceable against participating parties, and there may [be] less experience in quantifying the emission benefits from these programs.” 2001 EIP Guidance at 158. For voluntary stationary and area source measures, the EPA has identified a presumptive limit of 6% of the total amount of emission reductions required for RFP, attainment, or maintenance demonstration purposes. See 2004 Emerging and Voluntary Measures Policy at 9 and 2005 Bundled Measures Guidance at 8. These limits are presumptive in that the EPA may approve emission reductions from voluntary or other nontraditional measures in excess of the presumptive limits where the State provides a clear and convincing justification for such higher amounts, which the EPA would review on a case-by-case basis. See id.

The incentive-based emission reductions in the Contingency Measure SIP are consistent with the EPA's recommendations in the 1997 VMEP. First, the Contingency Measure SIP and related support documents contain the State's and District's demonstrations that the claimed incentive-based emission reductions are quantifiable, surplus, enforceable and permanent consistent with EPA policy. See Proposal TSD at 29-42. Second, the SIP submission contains enforceable commitments by the District to monitor, assess and report on its implementation of specified portions of the Carl Moyer and Prop 1B programs and the associated emission reductions, and to remedy emission reduction shortfalls in a timely manner should these programs fail to achieve the projected amounts (i.e., 4.15 tpd of NO X reductions and 0.10 tpd of direct PM 2.5 reductions) in 2015. See 78 FR 53113, 53121-53122 and Proposal TSD at 42-44. These commitments become federally enforceable by the EPA under CAA section 113  30 and by citizens under CAA section 304  31 upon the EPA's approval of the commitments into the SIP. Thus, although neither the EPA nor citizens can enforce these emission reductions directly against sources, as a result of today's action the EPA and citizens may enforce these emission reductions against the District, 32 pursuant to the District's SIP-approved commitments. See Proposal TSD at 42-44; see also Response 13 below (discussing EPA and citizen enforcement of SIP commitments under the CAA). Third, the incentive-based emission reductions relied upon in the Contingency Measure SIP amount to less than two percent of the total projected NO X reductions and less than one percent of the total projected PM 2.5 reductions needed to attain the 1997 PM 2.5 NAAQS in the San Joaquin Valley by April 5, 2015 (78 FR 53113, 53121, n. 29). These amounts of emission reductions fall within the EPA's recommended 3% cap (per pollutant) on the credit allowed for VMEPs. Finally, the incentive-based emission reductions do not interfere with requirements of the CAA and are consistent with the attainment and RFP requirements in the approved SJV PM 2.5 SIP (78 FR 53113, 53123 (discussing the EPA's evaluation of the Contingency Measure SIP in accordance with CAA section 110(l)).

Additionally, as explained in our proposed rule, the EPA evaluated the incentive-based emission reductions in the Contingency Measure SIP in accordance with the Agency's guidance on discretionary economic incentive programs (EIPs), 33 specifically “financial mechanism EIPs” (78 FR 53113, 53118, August 28, 2013). The EPA's approach to discretionary EIPs differs in several respects from its approach to “voluntary” and “emerging” measures. A discretionary EIP uses market-based strategies to encourage the reduction of emissions from stationary, area, and/or mobile sources in an efficient manner. See 2001 EIP Guidance at 3. To qualify for approval as a discretionary EIP, emission reductions or actions leading to reductions must be enforceable either by the State or by the EPA, and the State must be directly responsible for ensuring that program elements are implemented. See id. at 157-158 (states may use the 2001 EIP Guidance where “[a]ctions and/or emission reductions by identifiable sources are enforceable by [the State] and/or by the EPA”). Additionally, the emission reductions resulting from an EIP must be quantifiable with a higher degree of certainty than the reductions resulting from an emerging measure. See 2004 Emerging and Voluntary Measures Policy at 5. Given these more rigorous approval criteria, the EPA's presumptive limits on SIP credit for voluntary and emerging measures do not apply to discretionary EIPs. See 2001 EIP Guidance at 158 (“[states] may use the EIP guidance to implement programs which will generate emission reductions beyond the 3 percent limit”); see also 2004 Emerging and Voluntary Measures Policy at 6 (“EIP measures are not subject to a percentage limitation that applies to voluntary measures”).

A “financial mechanism EIP” is an EIP that indirectly reduces emissions by increasing costs for high emitting activities—e.g., through subsidies targeted at promoting pollution-reducing activities or products. See 2001 EIP Guidance at 119-122 (Chapter 8.0). The EPA has identified several attributes that may make subsidy financial mechanism EIPs successful, including: (1) The relevant governmental body possesses legal authority to provide subsidies; (2) the subsidies address activities reasonably related to actual emissions or potential emissions; (3) where projected emission reductions are based on changes in behavior, methods for verifying that such reductions have taken place to the degree projected are generally accepted as unbiased and trustworthy; and (4) if needed, adequate penalty provisions are in place to ensure that the subsidy is used as expected. See 2001 EIP Guidance at 27 (“Attributes That Make Subsidy Financial Mechanism EIPs Successful”).

As explained further below, the incentive-based emission reductions in the Contingency Measure SIP are consistent with the EPA's recommendations for “financial mechanism EIPs” in the 2001 EIP Guidance. First, CARB and the District are directly responsible for ensuring that the Prop 1B program and Carl Moyer Program are implemented in accordance with State law. See 2010 Prop 1B guidelines at 1-4 (“Overview”) and 2011 Carl Moyer Program Guidelines at Chapter 1 (“Program Overview”). Second, these incentive funds address activities reasonably related to actual or potential air pollutant emissions by requiring grant recipients to purchase and operate newer, cleaner vehicles or equipment in place of older, more-polluting vehicles or equipment, subject to detailed contract requirements. See Response 13. Third, the 2008 and 2010 Prop 1B guidelines and the 2011 Carl Moyer Program Guidelines establish a number of methods for verifying that projected emission reductions have taken place through compliance with the terms and conditions of each funding contract. See Response 13 and Response 14. Finally, under the applicable guidelines, actions by grantees that lead to emission reductions are directly enforceable by the State and/or the District—e.g., CARB and/or the District may assess fiscal penalties and take certain corrective actions where contract violations are identified  34 —and EPA and citizens may, in turn, enforce the annual reporting and emission reduction obligations against the District. See Response 13 and Response 14. Consistent with the EPA's recommendations for “financial mechanisms EIPs,” these provisions in the 2008 and 2010 Prop 1B guidelines and the 2011 Carl Moyer Program Guidelines are adequate to ensure that program funds are used as expected—i.e., to reduce emissions from higher-polluting vehicles and equipment by replacing them with newer, lower-polluting equipment and vehicles.

In sum, although the incentive-based emission reductions in the Contingency Measure SIP are not directly enforceable against individual sources by the EPA or citizens, the District may enforce specific emissions-reducing actions against individual sources, and the EPA and citizens may, in turn, enforce the emission reduction obligations against the District, pursuant to the District's SIP-approved commitments. Thus, whether the incentive-based emission reductions are characterized as dependent upon “voluntary” measures ( i.e., a VMEP) or resulting from a discretionary “financial mechanism EIP,” we find the District's SIP commitments in the Contingency Measure SIP adequate to ensure that the EPA and citizens may enforce these emission reductions under the Act. The Contingency Measure SIP and related support documents also adequately address all other applicable requirements of the CAA and the EPA's recommendations as set forth in the 1997 VMEP and 2001 EIP Guidance (78 FR 53113, 53118-53122, August 28, 2013). Given all of these considerations, we find that the incentive-based emission reductions in the Contingency Measure SIP satisfy the statutory criteria for SIP approval.

Comment 13: Citing both the 2001 EIP Guidance and the 2004 Emerging and Voluntary Measures Policy, Earthjustice highlights seven criteria for enforceability and asserts that the emission reductions identified in the Contingency Measure SIP do not meet these criteria.

Response 13: As an initial matter, we note that both the 2001 EIP Guidance and the 2004 Emerging and Voluntary Measures Policy set forth the EPA's recommendations for EIPs or voluntary measures submitted for SIP purposes and do not establish binding legal requirements. See 2001 EIP Guidance at 12 and 19 (stating that the EPA would determine through notice-and-comment rulemaking whether a particular EIP submission meets the applicable CAA requirements) and 2004 Emerging and Voluntary Measures Policy at 2. Moreover, the 2004 Emerging and Voluntary Measures Policy does not apply to mobile emission sources such as on-road and non-road vehicles. 35 See 2004 Emerging and Voluntary Measures Policy at 5. We have, however, evaluated the incentive-based emission reductions in the Contingency Measure SIP for consistency with the fundamental “integrity elements” outlined in the 2001 EIP Guidance, the 2004 Emerging and Voluntary Measures Policy, and other guidance on innovative measures as part of our evaluation of the SIP submission in accordance with CAA requirements.

Based on this evaluation, we disagree with the commenter's assertion that the incentive-based emission reductions in the Contingency Measure SIP fail to adequately address the enforceability recommendations provided in EPA policy. As the commenter notes, the 2001 EIP Guidance identifies enforceability considerations that are substantively identical to the recommendations in the 2004 Emerging and Voluntary Measures Policy. According to the 2001 EIP Guidance, emission reductions use, generation, and other required actions are enforceable if: (1) They are independently verifiable; (2) program violations are defined; (3) those liable for violations can be identified; (4) the State and the EPA maintain the ability to apply penalties and secure appropriate corrective actions where applicable; (5) citizens have access to all the emissions-related information obtained from the source; (6) citizens can file suits against sources for violations; and (7) they are practicably enforceable in accordance with other EPA guidance on practicable enforceability. See 2001 EIP Guidance at 35-36.

The actions required of grantees under the applicable portions of the Prop 1B and Carl Moyer Program guidelines, as discussed in our proposed rule, the Proposal TSD, and further below, adequately address these enforceability recommendations. First, the required actions 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. See generally 2008 Prop 1B guidelines at Section III.D (“Local Agency Project Implementation Requirements”), Section IV (“General Equipment Project Requirements”), and Appendix A, Section C (“Recordkeeping Requirements”) and Section D (“Annual Reporting Requirements”); 2010 Prop 1B guidelines at Section IV.A (“Project Implementation Requirements”), Section VI (“General Equipment Project Requirements”), and Appendix A, Section F (“Recordkeeping Requirements”) and Section G (“Annual Reporting Requirements”); and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 (“Program Administration”).

For example, the 2008 and 2010 Prop 1B guidelines require, among other things, that (1) all project applications  36 include documentation of current equipment and activity information (e.g. engine make, model, horsepower and fuel type, annual vehicle miles of travel (VMT) in California, and estimated percentage of annual VMT in trade corridors); (2) that the District conduct a “pre-inspection” of each application deemed eligible for funding, to verify information regarding the baseline engine, vehicle, or equipment; (3) that the District conduct a “post-inspection” of each funded project to record, among other things, identifiers and specifications for the new engine/equipment (e.g., VIN numbers for new trucks, serial numbers for new engines), verification that the new engine/equipment is operational and consistent with the equipment described in the project application, and verification of the destruction of the old/replaced equipment, where applicable; and (4) that the District's pre-inspection and post-inspection project files include photographic documentation of each piece of equipment being inspected, including an engine serial number, visible distinguishing identification (e.g., a license plate), and a full view of the equipment. See Proposal TSD at 30-35; see also 2008 Prop 1B guidelines at Section III.D.8 (“Equipment project pre-inspections'), Section III.D.14 (“Equipment project post-inspections), Section IV.D (“Equipment Project Application Requirements”) and Appendix A, Section F (“Application Information”); and 2010 Prop 1B guidelines at Section IV.A.10 (“Equipment project pre-inspections'), Section IV.A.16 (“Equipment project post-inspections), Section VI.D (“Equipment Project Application Requirements”) and Appendix A, Section F (“Application Information”).

Similarly, the 2011 Carl Moyer Program Guidelines require, among other things, that (1) all project applications  37 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 engine, vehicle, or equipment; (3) that the District conduct a “post-inspection” of each funded project to record, among other things, information regarding the new engines, vehicles/equipment, and retrofit devices as needed to provide a basis for emission calculations and to ensure contract enforceability; and (4) that the District's pre-inspection and post-inspection project files include photographic documentation of the engine, vehicle, or equipment information, including a legible serial number and/or other identifying markings. See Proposal TSD at 37-42; see also 2011 Carl Moyer Program Guidelines, Part I, Chapter 3, at Section W (“Minimum Project Application Requirements”), Section AA (“Project Pre-Inspection”), and Section BB (“Project Post-Inspection”).

Second, the applicable portions of the 2008 and 2010 Prop 1B guidelines and the 2011 Carl Moyer Program guidelines specifically define the required elements of each contract and the types of actions that constitute violations of such contracts. For example, under the 2008 and 2010 Prop 1B guidelines, each equipment project contract must include: (1) A unique “tracking number”; (2) the equipment owner's contact information; (3) the original application submitted by the equipment owner; (4) requirements for the equipment owner to submit reports to the local agency annually or biennially  38 ; (5) the equipment owner's agreement to allow ongoing evaluations and audits of equipment and documentation by the District, CARB, or their designated representative(s); and (6) requirements for the equipment owner to retain all records pertaining to the program (i.e., invoices, contracts, and correspondence) for at least two years after equipment project ends or three years after final payment, whichever is later. See 2008 Prop 1B guidelines at Section III.D.10 (“Equipment project contracts”) and 2010 Prop 1B guidelines at Section IV.A.11 (“Equipment project contracts”); see also Proposal TSD at 30-32. Additionally, under the same guidelines, the following actions (among others) are specifically identified as contract violations: (1) Failure to meet the terms and conditions of an executed equipment project contract, including equipment operating conditions and geographic restrictions; (2) failure to allow for an electronic monitoring device or tampering with an installed device or data; (3) insufficient, incomplete, or faulty equipment project documentation; and (4) failure to provide required documentation or reports in a timely manner. See 2008 Prop 1B guidelines at Section IV.G (“Equipment Project Non-Performance”) and 2010 Prop 1B guidelines at VI.I (“Equipment Project Non-Performance”); see also Proposal TSD at 30-32.

Similarly, under the 2011 Carl Moyer Program Guidelines, each equipment 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 vehicles, equipment, and/or engines, including documentation adequate to establish historical annual usage; (4) requirements for the grantee to maintain the vehicle, equipment and/or engine 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 project engine, vehicle, and/or equipment and associated records during the contract term, and (7) requirements to maintain and retain project records for at least two years after contract expiration or three years after final project payment, whichever is later. See 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z (“Minimum Contract Requirements”); see also Proposal TSD at 37-38 (describing requirements for Off-Road Compression Ignition engine replacement projects in 2011 Carl Moyer Program Guidelines, Part I, Chapter 9 at Section C (“Project Criteria”)). Additionally, the 2011 Carl Moyer Program Guidelines explicitly require that each contract “specify that by executing the contract, the grantee understands and agrees to operate the vehicle, equipment, and/or engine according to the terms of the contract” and describe the potential repercussions to the grantee for non-compliance with contract requirements. See 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z.11 (“Repercussions for Non-Performance”) and Section FF (“Nonperforming Projects”). 39 The 2011 Carl Moyer Program Guidelines also specifically identify types of actions on the part of the District that CARB may treat as violations of program requirements—e.g., misuse of Carl Moyer Program funds and insufficient, incomplete, or inaccurate project documentation. See 2011 Carl Moyer Program Guidelines at Section U (“Program Non-Performance”).

Third, grantees that are liable for violations of these contract provisions can be identified by the State and/or District and, through the annual demonstration reports submitted to the EPA, by the EPA and citizens as well. Specifically, as discussed above, under the 2008 Prop 1B guidelines, the 2010 Prop 1B guidelines, and the 2011 Carl Moyer Program guidelines, each contract executed by the District must require the grantee to maintain project records for at least two years after contract expiration or three years after final project payment, whichever is later, and to submit annual or biennial reports to the District. See 2008 Prop 1B guidelines at Section III.D.10 (“Equipment project contracts”), 2010 Prop 1B guidelines at Section IV.A.11 (“Equipment project contracts”), 40 and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z (“Minimum Contract Requirements”); see also Proposal TSD at 30-32 and 37-40. Additionally, the 2008 and 2010 Prop 1B guidelines require that each contract contain a provision stating the equipment owner's agreement to allow ongoing evaluations and audits of equipment and documentation by the District, CARB, or their designated representative(s), and the 2011 Carl Moyer Program Guidelines similarly require that all contracts authorize the District, CARB, or their designees to conduct fiscal audits of the project and/or to inspect the project engine, vehicle, and/or equipment and associated records during the contract term. See id. These provisions in the Prop 1B and Carl Moyer Program guidelines enable both the State and District to identify grantees that violate their contract provisions.

The EPA and citizens, in turn, can identify violators through the annual demonstration reports that the District is obligated under its SIP commitment to make publicly available (on the District's Web site) and to submit to the EPA by August 31 of each year. See SJVUAPCD Board Resolution No. 13-6-19 (June 20, 2013) at 3 and Rule 9610, Section 5.0. Specifically, Section 6.1 of Rule 9610 (as adopted June 2013)  41 states that “[a]ll documents created and/or used in implementing the requirements of Section 4.0 shall be kept and maintained as required by the applicable incentive program guidelines . . . [and] shall be made available for public review” consistent with the California Public Records Act and other related requirements. Section 6.1 also states that “[i]nformation regarding the process for the public review of such records shall be included in the annual demonstration report.” Rule 9610, Section 6.1. Consistent with these requirements, the 2013 Annual Demonstration Report submitted by the District states that the public may request documents created and/or used in implementing the requirements of Section 4.0 (of Rule 9610) through the District's Public Records Release Request form, which is available on the District Web site. See SJVUAPCD, “2013 Annual Demonstration Report” (January 31, 2014) at 8. The District has confirmed that both the EPA and citizens may use this form to request copies of the required records for any Prop 1B or Carl Moyer Program project that the District has relied upon for SIP credit, which will be identified in the District's annual demonstration reports going forward. See email dated December 18, 2013, from Jeannine Tackett, SJVUAPCD, to Idalia Perez, U.S. EPA Region 9, “RE: question needed for response to comments on contingency measure SIP.”  42

Fourth, the State maintains the ability to apply penalties and secure appropriate corrective actions where contract terms are violated, and the EPA maintains the ability to require appropriate corrective actions of the District where projected emission reductions are not achieved. For example, under the 2008 and 2010 Prop 1B guidelines, where the District finds that a grantee has violated a contract term, the District is authorized to recover all or a portion of program funds, assess fiscal penalties on equipment owners based on the severity of the non-performance, and prohibit the equipment owner from participating in future State incentive programs, among other things. See 2008 Prop 1B guidelines at Section IV.G (“Equipment Project Non-Performance”) and 2010 Prop 1B guidelines at Section VI.I (“Equipment Project Non-Performance”). Under the 2011 Carl Moyer Program Guidelines, 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 withholding of program funds, and should CARB determine that the District's oversight and enforcement of the program is insufficient, CARB may recapture funds granted to the District that have not yet been awarded to approved projects. See 2011 Carl Moyer Program Guidelines, Chapter 3 at Section U (“Program Non-Performance”). Additionally, as explained further below, the EPA maintains the ability to enforce the District's SIP commitments—i.e., to require the District to submit annual demonstration reports consistent with the requirements of Rule 9610 and/or to adopt and submit substitute measures on a fixed timeframe, where projected emission reductions are not achieved.

Fifth, citizens have access to all of the emissions-related information obtained from the source. As explained in our proposed rule, the Board commitments submitted with the Contingency Measure SIP obligate the District to “account for” its claimed NO X and PM 2.5 emission reductions “in annual demonstration reports pursuant to the requirements of Rule 9610.” See SJVUAPCD Board Resolution No. 13-6-18 at 3. Rule 9610 requires the District to submit to the EPA, no later than August 31 of each year, an “annual demonstration report” that includes detailed information about each specific project that the District has relied upon to achieve SIP-creditable emission reductions (e.g., unique project identification numbers, project implementation dates, applicable incentive program guideline(s), and quantified emission reductions per year and aggregated over the project life, by pollutant). See 78 FR 53113, 53121 (citing Rule 9610, sections 4.1-4.6 and 5.0) (emphases added). Additionally, Rule 9610 requires that “[a]ll documents created and/or used in implementing the requirements of Section 4.0 shall be kept and maintained as required by the applicable incentive program guidelines” and that “such records shall be made available for public review.” Rule 9610, Section 6.1. Under the 2008 and 2010 Prop 1B guidelines, all grant recipients must, among other things, retain “all documents, invoices, and correspondence associated with the application, award, contract, monitoring, enforcement, and reporting requirements” for at least two years after the equipment project contract term or three years after final payment, whichever is later”; must make records readily available and accessible to the District, CARB, or their designees upon request; and must submit regular reports to the District that include information about annual miles traveled, certification and documentation of travel within California's trade corridors, and certification that the project was operated in accordance with the signed contract. See 2008 Prop 1B guidelines, Appendix A (“Trucks Serving Ports and Intermodal Rail Yards”), Section C (“Recordkeeping Requirements”) and Section D (“Annual Reporting Requirements”) at A-4 and 2010 Prop 1B guidelines, Appendix A (“Heavy Duty Diesel Trucks”), Section F (“Recordkeeping Requirements”) and Section G (“Annual Reporting Requirements”) at A-19. The 2011 Carl Moyer Program Guidelines contain substantially similar recordkeeping and reporting requirements for grantees in Chapter 3, Section Z.9 (“Reporting”), Section Z.10 (“On-Site Inspections and Audits”), and Section DD (“Grantee Annual Reporting”). Pursuant to section 6.1 of Rule 9610, all of these documents must be made available for public review upon request. 43 See Rule 9610, Section 6.1.

Sixth, although citizens cannot file suits against sources for violations, both the EPA and citizens may file suits against the District for violations of its commitments to ensure that the projected emission reductions are achieved in 2015. Specifically, the SJVUAPCD Governing Board has submitted a commitment to quantify SIP-creditable emission reductions in the amount of 4.15 tpd of NO X reductions and 0.10 tpd of PM 2.5 reductions using the incentive program guidelines and related documents identified in Rule 9610 and to “account for these NO X and PM 2.5 emission reductions in annual demonstration reports pursuant to the requirements of Rule 9610” for purposes of satisfying the PM 2.5 contingency measure requirement for 2015. SJVUAPCD Board Resolution No. 13-6-18 at p. 3. Additionally, the Board's commitment states that “[if] there is a shortfall in expected emission reductions for 2015, the District will adopt and submit to EPA substitute rules and measures that will achieve equivalent emission reductions as expeditiously as practicable and no later than any applicable implementation deadline in the CAA or EPA's implementing regulations, by no later than December 31, 2016.” Id. As explained in our proposed rule (78 FR 53113, 53121), the EPA interprets these District commitments as applying to emission reductions to be achieved in 2015 through specific types of Prop 1B and Carl Moyer Program projects, 44 and the EPA expects that the 2014 annual demonstration report will then specify the individual projects relied upon to achieve these emission reductions, consistent with the requirements of Rule 9610, Section 4.5. See Proposal TSD at 25-27, n. 13 and n. 17 (referencing Proposal TSD at Attachment A and Attachment B). These Board commitments, which become federally enforceable by the EPA and by citizens upon approval into the SIP, 45 impose clear and specific requirements on the District to account for specific amounts of NO X and PM 2.5 emission reductions through annual demonstration reports that satisfy the requirements of Rule 9610 and, if the identified projects fail to achieve the projected emission reductions in 2015, to adopt and submit to the EPA substitute measures that will achieve equivalent amounts of emission reductions as expeditiously as practicable and no later than December 5, 2015. 46 Should the EPA determine that the SJV area has failed to attain the 1997 PM 2.5 standards by the applicable attainment date (April 5, 2015), the EPA and citizens may enforce both components of the District's SIP commitment under sections 113 and 304 of the CAA, respectively, as follows: (1) If the Board fails to annually account for its claimed NO X and PM 2.5 emission reductions consistent with the requirements of Rule 9610, the EPA or citizens may enforce the District's obligation to submit the required reports; and (2) if the District's 2014 annual demonstration report indicates that the specific projects identified therein will not achieve the District's claimed amounts of NO X and PM 2.5 emission reductions (4.15 tpd of NO X reductions and 0.10 tpd of PM 2.5 reductions) in 2015 as projected, the EPA or citizens may enforce the District's obligation to adopt and submit substitute measures that will achieve equivalent amounts of emission reductions by December 5, 2015. See Proposal TSD at 42-44. We find these provisions adequate to ensure that the EPA and citizens may secure appropriate corrective actions where projected emission reductions are not achieved.

Finally, the emission reductions to be achieved through the identified Prop 1B and Carl Moyer Program projects are practicably enforceable consistent with EPA policy on enforceability requirements. The EPA generally considers a requirement to be “practically enforceable” if it contains a clear statement as to applicability; specifies the standard that must be met; states compliance timeframes sufficient to meet the standard; specifies sufficient methods to determine compliance, including appropriate monitoring, record keeping and reporting provisions; and recognizes relevant enforcement consequences. See “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency,” September 3, 1987 (“1987 Potter Memo”) and “Guidance on Enforceability Requirements for Limiting Potential to Emit through SIP and Section 112 Rules and General Permits,” January 25, 1995 (“1995 PTE Policy”) at 5, 6. The actions associated with the incentive-based emission reductions in the Contingency Measure SIP are practicably enforceable on two levels. First, as explained above, the actions required of grantees under the 2008 and 2010 Prop 1B guidelines and the 2011 Carl Moyer Program Guidelines are practicably enforceable by the State and District. Specifically, under the applicable portions of the Prop 1B and Carl Moyer Program guidelines ( see Proposal TSD at 29-42), each grant of incentive funds must be subject to contract provisions that clearly identify the funded equipment or vehicle; specify the actions required of the grantee; identify relevant compliance timeframes (e.g., a “project life”); specify sufficient methods to determine the grantee's compliance with contract provisions, including detailed monitoring, recordkeeping and reporting requirements; and identify potential enforcement consequences in cases of contract non-compliance. Taken together, these provisions of the 2008 and 2010 Prop 1B guidelines and the 2011 Carl Moyer Program Guidelines ensure that the actions required of grantees are practically enforceable consistent with EPA policy.

Second, the actions required of the District under its SIP commitment are practicably enforceable by the EPA and citizens. As discussed above, the District has submitted an enforceable commitment to account for specified amounts of NO X and direct PM 2.5 emission reductions through annual demonstration reports meeting the requirements of Rule 9610 and, should the projects identified in those reports  47 fail to achieve the specified reductions in 2015, to adopt and submit substitute measures achieving equivalent amounts of reductions on a fixed schedule. This commitment clearly identifies the District as the responsible entity; specifies the requirement that must be met and the compliance timeframes (i.e., to account for specific amounts of incentive-based NO X and PM 2.5 emission reductions or to adopt and submit substitute measures by fixed dates); and, through reference to the requirements of Rule 9610, specifies sufficient methods to determine compliance (i.e., the requirements under Section 4.0 of Rule 9610 that each annual demonstration report must satisfy). Should the District fail to submit annual demonstration reports meeting the requirements of Rule 9610 that confirm that its claimed NO X and PM 2.5 emission reductions occurred in 2015 as projected, the EPA may make a finding of failure to implement the SIP under CAA section 179(a), which starts an 18-month period for the State/District to correct the non-implementation before mandatory sanctions are imposed. Additionally, the EPA or citizens may enforce the District's obligation to adopt and submit substitute measures that will achieve equivalent emission reductions no later than December 5, 2015.

Taking into account all of these provisions of the applicable incentive program guidelines and the District's SIP commitments, we find the incentive-based emission reductions relied upon in the Contingency Measure SIP to be practically enforceable consistent with EPA policy.

Comment 14: Earthjustice asserts that the incentive-based emission reductions are not independently verifiable because the EPA and citizens can only rely on data submitted to or collected by the District. Additionally, Earthjustice contends that the EPA has no authority to inspect sources for compliance with the contracts between the District and the source, and that the EPA also lacks the ability to apply penalties or secure corrective actions against the sources. Finally, Earthjustice asserts that because the emission reductions are secured through contracts between the source and the District, compliance with those agreements cannot be enforced by the public or the EPA, and that the District “has discretion to modify these contracts and redefine violations without any EPA or public oversight.”

Response 14: First, we disagree with the commenter's claim that the incentive-based emission reductions are not independently verifiable. Although enforcement of these emission reductions by the EPA or citizens generally depends upon project-related information maintained by the District, this does not preclude independent verification of the emission reductions if sufficient safeguards are in place to ensure that the District will obtain and maintain adequate compliance-related records and make these records available to the EPA and the public. As discussed above, the applicable incentive program guidelines (the 2008 and 2010 Prop 1B guidelines and the 2011 Carl Moyer Program Guidelines) require that the District maintain specific documentation of pre-project and post-project inspections for each funded project and that all grantees submit detailed compliance-related documentation to the District on an annual or biennial basis. The District, in turn, is obligated under its SIP commitment to make these project records available to the EPA and to the public upon request. See Response 13. Furthermore, as a result of the EPA's approval of the District's commitments into the SIP, the EPA may require under CAA section 114(a) that the District provide information necessary for the purpose of determining whether the District is in violation of these SIP commitments—including all compliance-related documentation that the District maintains in accordance with the applicable incentive program guidelines. See CAA section 114(a) (authorizing the EPA to require submission of information from “any person” who may have information necessary for the purpose of determining whether a SIP requirement has been violated) and section 302(e) (defining “person” to include a State or political subdivision thereof). We find the monitoring, recordkeeping and reporting requirements of the applicable incentive program guidelines, together with the District's enforceable SIP commitments, adequate to ensure that the incentive-based emission reductions can be independently verified.

Second, although the commenter correctly states that the EPA is not authorized to inspect sources for compliance with their funding contracts or to apply penalties or secure corrective actions against individual sources, we do not believe such authorities are necessary in order to enforce these emission reductions under the CAA. As discussed in Response 13 above, both the District and CARB are authorized to inspect sources for compliance with their funding contracts and to apply penalties or secure corrective actions against sources that violate their contracts. Rule 9610 requires the District to maintain records of all such inspections and enforcement actions ( see Rule 9610, Section 6.1), and under section 114(a) of the CAA, the EPA may require the District to provide these project-related records for purposes of determining whether the District is in violation of its SIP commitment. Both the EPA and citizens may also obtain these records from the District through submission of a “Public Records Release Request.” See Response 13. Based on these project-related records, the EPA and citizens may verify whether the District has adequately accounted for 4.15 tpd of NO X reductions and 0.10 tpd of PM 2.5 reductions in 2015, consistent with its SIP commitments. Additionally, where the documentation evidences a shortfall in the required emission reductions, the District would be obligated—subject to the EPA and citizen enforcement under the CAA—to adopt and submit substitute measures that achieve equivalent emission reductions no later than December 5, 2015. We find these provisions adequate to ensure that the incentive-based emission reductions in the Contingency Measure SIP may be enforced under the CAA.

Finally, although we agree with the commenter's claim that neither the EPA nor citizens can enforce compliance with the contracts between sources and the District, we disagree with the claim that the District has discretion to “redefine violations without any EPA or public oversight.” As explained above, upon approval into the SIP the District's commitments become federally enforceable by the EPA and by citizens under sections 113 and 304 of the Act, respectively. See Response 13. These SIP-approved commitments cannot be modified, nor can the District “redefine violations” thereof, except through a SIP revision adopted by the State after reasonable notice and public hearing and approved by the EPA through notice-and-comment rulemaking. See CAA section 110(l); 5 U.S.C. section 553; 40 CFR 51.105; see also Response 8.

Comment 15: Earthjustice cites the EPA's 2001 EIP Guidance to support its assertion that to be enforceable, a “financial mechanism EIP” must meet the general programmatic and source-specific definitions of enforceable. Earthjustice asserts that the EPA's analysis does not include any review of the programmatic requirements outlined in EPA policy and that the Valley's incentive program “violates several of these criteria.” Additionally, as to the “source-specific” definition of enforceable in EPA policy, Earthjustice asserts that the EPA lacks the ability to independently verify compliance because the EPA is reliant upon information collected by the State and District and cannot collect its own information, conduct inspections, demand additional reporting, or enforce the failure to submit required reports. Earthjustice further contends that the limited reporting required under the Carl Moyer program does not allow the EPA to independently verify compliance given “EPA must rely on the limited documentation submitted by the owner and will not even see reports on usage of the new equipment unless that data happens to be collected by the State or District and shared with EPA.” Earthjustice concludes that the incentive program contingency measure thus fails to be “enforceable” either at the programmatic level or the source-specific level.

Response 15: We disagree with Earthjustice's characterization of the EPA's recommendations in the 2001 EIP Guidance. The EPA stated in the 2001 EIP Guidance that “[t[he emission reductions associated with a financial mechanism EIP are enforceable if they meet the general programmatic and source-specific definitions of enforceable.” 2001 EIP Guidance at 120. Additionally, the EPA stated that although a program containing these elements would assure that the program would meet the applicable CAA provisions, the EPA would also evaluate programs submitted by states that do not contain all of these elements and would determine, through notice-and-comment rulemaking, whether such programs satisfied the applicable CAA requirements. See 2001 EIP Guidance at 119; see also 2001 EIP Guidance at 12 and 19. Because the enforceability considerations highlighted in the 2001 EIP Guidance are non-binding recommendations, the EPA does not apply them as regulatory criteria in its evaluation of an EIP submission.

We have, however, evaluated the incentive-based emission reductions in the Contingency Measure SIP for consistency with the EPA's recommendations in the 2001 EIP Guidance and find them generally consistent with the general programmatic and source-specific definitions of “enforceable” in this document. As Earthjustice notes, the “programmatic” definition of enforceable highlights seven key factors that should be considered in determining whether an EIP is enforceable. See 2001 EIP Guidance at 35-36. We addressed each of these seven factors in Response 13 above. The “source-specific” definition of enforceable highlights three key factors that should be considered in determining whether an EIP is enforceable: (1) The source is liable for any violations; (2) the liable party is identifiable; and (3) the State, the public, and the EPA can independently verify a source's compliance. See 2001 EIP Guidance at 40. With respect to the first two factors (the source's liability for violations and the ability to identify the liable party), see Response 13 above. With respect to the third factor (the ability of the State, the public, and the EPA to independently verify a source's compliance), see Response 14 above.

We also disagree with Earthjustice's assertion that the EPA cannot collect the information necessary to independently verify compliance and that the reporting required under the Carl Moyer program does not allow the EPA to independently verify compliance. As discussed above, the applicable incentive program guidelines (the 2008 and 2010 Prop 1B guidelines and the 2011 Carl Moyer Program Guidelines) require that the District maintain specific documentation of pre-project and post-project inspections for each funded project and that all grantees submit detailed compliance-related documentation to the District on an annual or biennial basis. The District, in turn, is obligated under its SIP commitment to maintain these project records and make them available to the EPA and to the public upon request. See Response 13; see also n. 43 supra. Furthermore, as a result of the EPA's approval of the District's commitments into the SIP, the EPA may require under CAA section 114(a) that the District provide information necessary for the purpose of determining whether the District is in violation of its SIP commitments—including all compliance-related documentation that the District maintains in accordance with the applicable incentive program guidelines. See id. and Response 14. We find these provisions adequate to ensure that the EPA can collect the information necessary to independently verify the District's compliance with its SIP commitments.

All SIP measures have some level of uncertainty, whether it comes from the uncertainty associated with the emissions factors for certain sources, the level of compliance with existing SIP measures, or the modeling for an attainment demonstration. The issue is how best to apply assumptions and tools to reduce the uncertainty to a manageable factor. See 2004 Electric-Sector EE/RE Guidance at 11. As explained in our Proposal TSD and further in these responses to comments, the incentive programs relied upon in the Contingency Measure SIP are subject to detailed monitoring, recordkeeping, reporting, and emissions quantification requirements under State law, all of which are designed to ensure that program grants are used to reduce air pollution through the replacement of older, higher-polluting vehicles and equipment with newer, cleaner vehicles and equipment and to ensure that the resulting emission reductions are calculated consistent with established quantification protocols. See Proposal TSD at 29-42; see also Response 13. We find these requirements of the Prop 1B program and Carl Moyer Program adequate to reduce the uncertainties in calculating associated emission reductions to a manageable factor and to provide a reasonable basis for approval of the incentive-based emission reductions in the Contingency Measure SIP.

Comment 16: The District notes that the EPA did not review emission reductions achieved through the National Resources Conservation Service Environmental Quality Incentives Program (NRCS EQIP) for the replacement of agricultural equipment (as included in Rule 9610 and documented through the District's 2013 Annual Demonstration Report ). It describes efforts that have been taken toward developing procedures for crediting these emission reductions for SIP purposes including the statement of principles agreed upon by the District, NRCS, EPA, and CARB in December 2010  48 and the document signed by the EPA and NRCS in July 2012. 49 The District states that the agencies that signed these statements agreed to work collaboratively to develop a mechanism to provide SIP credit for emission reductions from federal, state, and local incentive programs that meet the EPA integrity principles of being surplus, quantifiable, enforceable, and permanent. The District comments that it appreciates the EPA's efforts over the last several years in reviewing the NRCS EQIP Program in the context of these agreements and Rule 9610 and looks forward to the EPA's approval of this program as SIP-creditable in the near future.

Response 16: We did not evaluate the EQIP as part of our action on the Contingency Measure SIP because the District did not specifically identify any emission reductions from the EQIP as part of its contingency measure plan and because emission reductions from the Carl Moyer and Prop 1B projects identified in our proposed rule and the Proposal TSD provide sufficient emission reductions to meet the CAA contingency measure requirement for the 1997 PM 2.5 NAAQS in the SJV. See Contingency Measure SIP at 7-9 and 2013 Annual Demonstration Report at Table 5; see also Proposal TSD at 25-27, n. 13 and n. 17. Comments regarding the EQIP program are therefore outside the scope of this action.

Comment 17: Citing the EPA's discussion of voluntary and discretionary economic incentive programs in the proposed rule, the District states that the EPA has generally limited the amount of emission reduction credit allowed in a SIP for discretionary incentive programs to three percent of the total projected future year emission reductions required to attain the relevant NAAQS. The District states that “[t]his three percent cap does not affect this contingency measure demonstration and should be removed from the proposed rule, since EPA notes the amount of incentive-based emission reductions used in this contingency demonstration is less than two percent of the total projected emission reductions needed to attain the 1997 PM 2.5 NAAQS in the Valley.” It further asserts that “the District should not be limited to a three percent limit for incentive-based reductions achieved through SIP-creditable processes, such as Rule 9610.” In support of these assertions, the District quotes from the EPA's stated rationale in the 2001 EIP Guidance (at pg. 139) for the recommended 3 percent cap on SIP credit for voluntary programs and the EPA's statement that states “may use the EIP guidance to implement programs which will generate emission reductions beyond the 3 percent limit, or when [the state has] already reached the 3 percent limit under the voluntary measures guidance.” Finally, the District notes that the 2001 EIP Guidance sets forth only non-binding policy and does not represent final EPA action on the requirements for EIPs.

Response 17: With respect to voluntary mobile source emission reduction programs (VMEPs), the EPA has generally limited the amount of emission reductions allowed in a SIP to three percent (3%) of the total projected future year emission reductions required to attain the relevant NAAQS, and for any particular SIP submittal to demonstrate attainment or maintenance of the NAAQS or progress toward attainment (RFP), 3% of the specific statutory requirement. See 1997 VMEP at 5. Similarly, with respect to voluntary and emerging measures for stationary sources, the EPA has generally limited the amount of emission reductions allowed in a SIP to 6% of the total amount of emission reductions required for RFP, attainment, or maintenance demonstration purposes. See 2004 Emerging and Voluntary Measures Policy at 9 and 2005 Bundled Measures Guidance at 8. These limits are “presumptive” in that the EPA may approve emission reductions from voluntary or other nontraditional measures in excess of the presumptive limits where the State provides a clear and convincing justification for such higher amounts, which the EPA would review on a case-by-case basis. See id.; see also Response 12.

It appears the District may have misunderstood the EPA's intent in discussing this presumptive 3% limit on the emission reduction credit allowed in a SIP for VMEPs. In the proposed rule (78 FR 53113, 53118), we discussed the presumptive 3% limit both to provide context on the applicable EPA guidance to date and to indicate that the incentive-based emission reductions in the Contingency Measure SIP adequately address the EPA's recommendations in the 1997 VMEP, as applicable (78 FR 53113, 53118 and 53121). Our proposed rule made clear, however, that we were evaluating the Contingency Measure SIP in accordance with the fundamental integrity elements identified in several EPA guidance documents, as applied not only to VMEPs but also to discretionary “financial mechanism EIPs.” See id. at 53118 (citing both 2001 EIP Guidance and 1997 VMEP). Although we observed in the proposed rule that the NO X and direct PM 2.5 emission reductions attributed to Carl Moyer Program and Prop 1B projects in the Contingency Measure SIP each amounted to less than 2 percent of the total projected emission reductions needed to attain the 1997 PM 2.5 NAAQS in the SJV (78 FR 53113, 53121), this factual observation was intended to provide additional support for our proposal and was not a necessary basis for our action. See Response 12. Our discussion of the presumptive 3% limit provides relevant context on the EPA's guidance on voluntary and incentive programs to date, and we disagree with the District's statement that this discussion should be excluded from the analyses supporting our rulemaking action.

We agree, however, with the District's suggestion that it is not necessarily limited to a 3% cap on the amount of SIP emission reduction credit allowed for incentive programs. As the District correctly notes, the 2001 EIP Guidance sets forth only non-binding policy and does not represent final EPA action on the requirements for EIPs. See 2001 EIP Guidance at 12. Likewise, the presumptive 3% limit on the SIP credit allowed for a VMEP under the 1997 VMEP policy is also a non-binding policy recommendation. In addition, the 2001 EIP Guidance explicitly provides that states may use it to implement programs which will generate emission reductions beyond the 3 percent limit, provided the state is directly responsible for ensuring that program elements are implemented. See 2001 EIP Guidance at 139. The EPA will review each SIP submitted by California that relies on emission reductions from incentive programs on a case-by-case basis in accordance with the applicable CAA requirements and, for any SIP that relies on incentive programs for emission reductions exceeding the EPA's presumptive caps, the EPA will determine through notice-and-comment rulemaking whether the State has provided adequate justification for such higher amounts and whether the submission, as a whole, satisfies the requirements of the Act. Because the incentive-based emission reductions in the Contingency Measure SIP fall below the EPA's recommended 3% limit, we do not need to decide in today's action whether the State has provided adequate justification for higher amounts of emission reduction credit.

Comment 18: The District disagrees in part with the EPA's description of the effect of a “case-by-case determination” under the Carl Moyer Program and with the EPA's statement that such determinations give the State broad discretion without EPA oversight or public process. First, the District states that case-by-case determinations are defined under Rule 9610 as “alternative procedures approved by ARB for specific projects, as authorized under the Carl Moyer Program Guidelines” and that these are not limited to “determinations that provide for a longer project life.” Second, the District states that “all case-by-case determinations submitted for review to ARB are made available to the public via public Web posting at ARB's Carl Moyer Program Web site, and [that] the District is required by the Carl Moyer Program Guidelines to keep a copy of the determination in the project file.” Third, the District states that under Section 3.2.2 of Rule 9610, no case-by-case determination may be used to quantify emission reductions under the rule unless each determination is reviewed through a public process and submitted to the EPA in accordance with Section 7.0. Finally, the District confirms the EPA's understanding that emission reductions from projects subject to case-by-case determinations are not included in the 2013 Annual Demonstration Report but disagrees with the EPA's statement in the proposed rule that such projects “are not eligible for SIP credit,” noting that the reason these are not included in the 2013 Annual Demonstration Report is that they are “extremely rare and make up less than one percent of District administered incentive programs.” In conclusion, the District maintains that case-by-case determinations made in accordance with Rule 9610 should be eligible for SIP credit.

Response 18: We do not dispute the District's statement that “case-by-case determinations” under the Carl Moyer Program are not limited to determinations that allow for a longer project life and note the broad definition of the term “case-by-case determination” in Section 2.4 of Rule 9610. We discussed case-by-case determinations in the proposed rule only to note that, although the portions of the three incentive program guidelines that we reviewed generally establish criteria consistent with the requirements of the Act, the provisions regarding case-by-case determinations in these portions of the guidelines do not adequately address the Act's requirements for SIP emission reduction credit (78 FR 53113, 53120). We referenced, as an example, a provision in the 2011 Carl Moyer Program guideline entitled “Project Life” and noted that emission reductions from any project subject to a case-by-case determination under such a provision would not be eligible for SIP credit “unless the District submits the individual determination for EPA review and approval through the SIP process” (78 FR 53113, 53120 (referencing 2011 Carl Moyer Program guideline at Chapter 9, Section C.1(c)(5)). The purpose of this discussion was to make clear that the EPA is not, through this rulemaking, authorizing the District to rely on any project subject to a case-by-case determination under the referenced incentive program guidelines, nor is the EPA approving any such case-by-case determination.

As the District correctly notes, Rule 9610 specifically prohibits the District from using a case-by-case determination to quantify emission reductions under the rule “unless such determination is reviewed through a public process and submitted to EPA in accordance with Section 7.0.” Rule 9610, Section 3.2.2. Section 7.0 of the rule states, in relevant part, that “[e]ach SIP submission in which the District relies on [projections of SIP-creditable emission reductions] shall contain a demonstration that the applicable incentive program guideline(s) continues to provide for SIP-creditable emission reductions. . . .” Read together, these provisions require the District to submit any case-by-case determination that it intends to rely on for SIP credit to the EPA in a formal SIP submission, together with a demonstration that the determination and the project(s) subject to it provide for emission reductions that are surplus, quantifiable, enforceable, and permanent. See Rule 9610, Section 7.0 (establishing requirements for SIP submissions) and Section 2.25 (defining “SIP-Creditable Emission Reduction”). Upon the EPA's approval of such a SIP consistent with CAA requirements, projects subject to the identified case-by-case determination would be eligible for SIP credit.

In sum, case-by-case determinations under the Carl Moyer Program are not currently eligible for SIP credit but may become eligible for credit through the EPA's approval of SIP submissions going forward. Should the District intend to rely on emission reductions from a project subject to a case-by-case determination to satisfy a SIP requirement, it may do so only following its submission of the determination to the EPA as part of a SIP that meets the requirements of Rule 9610, Section 7.0 and the EPA's approval of such SIP consistent with the requirements of the CAA.

The EPA appreciates the District's statement confirming that projects subject to case-by-case determinations are not included in the 2013 Annual Demonstration Report and is approving the incentive-based emission reductions in the Contingency Measure SIP based on our understanding that it does not rely on any case-by-case determination.

Comment 19: Earthjustice urges the EPA not to approve the San Joaquin Valley contingency measures for the San Joaquin Valley's PM 2.5 SIP. Earthjustice argues that the Contingency Measure SIP “does not comply with the Clean Air Act and would leave Valley residents without meaningful air quality protections if and when the Valley fails to attain the 1997 PM 2.5 standards.”

Response 19: For the reasons discussed in our proposed rule and further explained in our responses to comments above, we have determined that the Contingency Measure SIP corrects the deficiency that prompted our partial disapproval of the SJV PM 2.5 SIP and strengthens the SIP and are, therefore, approving it into the California SIP.

We disagree with the claim that the approval of this Contingency Measure SIP would leave SJV residents “without meaningful air quality protections” should the SJV fail to meet the 1997 PM 2.5 standards by the applicable attainment date of April 5, 2015. The Contingency Measure SIP demonstrates that California has adopted measures that will achieve substantial emission reductions in and after 2015 that will provide significant on-going air quality benefits to SJV residents. Specifically, the Contingency Measure SIP shows that in calendar year 2015, adopted and implemented federal and State mobile source control measures will reduce NO X emissions by 21 tpd; State and local incentive grant funds will reduce NO X emissions by an additional 4.15 tpd; and the SIP-approved contingency provision in the District's residential woodburning rule, Rule 4901, will provide 3.1 tpd of direct PM 2.5 reductions should we determine that the SJV has failed to attain the 1997 PM 2.5 standards by the applicable attainment date of April 5, 2015 (78 FR 53113, 53123). Compared to projected 2014 levels of NO X and direct PM 2.5 emissions in the SJV, these contingency measures will provide an additional 9 percent reduction in NO X emissions and an additional 5 percent reduction in direct PM 2.5 emissions in 2015. 50

Comment 20: Earthjustice objects to the EPA's statement that contingency measures must be implemented “quickly without significant additional action by the state,” stating that the addition of “significant” in 40 CFR 51.1012 was the result of a scrivener's error and is not consistent with the plain statutory language of CAA section 172(c)(9). Quoting from the preamble to the EPA's 2007 PM 2.5 Implementation Rule, Earthjustice notes that the EPA acknowledged this error in its adoption of the rule.

Response 20: We agree that the inclusion of “significant” in 40 CFR 51.1012 was in error and note the correction.

Comment 21: Mr. Unger comments that the SJV area has not met the PM 2.5 standards and that air quality has not improved much in the past few years. He also states that both the SJV's citizens and the District are reluctant to do more to improve air quality. For these reasons, he urges the EPA to not approve the SIP for the 1997 annual and 24-hour PM 2.5 standards. He disagrees with our statement that “the State has most likely done all it can to correct the deficiency” given the continuing nonattainment in the San Joaquin Valley. He states that if the EPA were to impose sanctions on the SJV, it would encourage California to adopt controls sufficient to attain the standards. He includes a list of suggested measures in his comments.

Response 21: In 2011, we approved all but one element of California's SIP to attain the 1997 annual and 24-hour PM 2.5 standards in the SJV (76 FR 69896, November 9, 2011). Our action here is to approve the last outstanding element of that SIP, the contingency measures for failure to make RFP or attain. Our approval is based on our determination that the Contingency Measure SIP corrects the deficiency that prompted our 2011 disapproval of the contingency measure provisions in the SJV PM 2.5 SIP. Although the commenter asserts generally that SJV citizens and the District are “reluctant” to do more to improve air quality, that the SJV area has not complied with the NAAQS for many years, and that the threat of sanctions might encourage further regulatory action, the commenter fails to identify any specific basis under the CAA for disapproving the Contingency Measure SIP.

The purpose of contingency measures is to continue progress in reducing emissions while the SIP is being revised to meet a missed RFP milestone or correct continuing nonattainment. Should the EPA determine that the SJV has failed to attain the 1997 standards by the applicable attainment date (April 5, 2015), the State and District will be required to implement these contingency measures and to revise the SIP to assure expeditious attainment consistent with applicable CAA requirements.

We appreciate the list of control measures and will forward it to the District for its consideration during development of the next PM 2.5 SIP for the Valley.

The EPA is approving the Contingency Measure SIP (adopted June 20, 2013 and submitted July 3, 2013) based on the Agency's conclusion that this SIP submission corrects the deficiency in the CAA section 172(c)(9) attainment contingency measures that was one of two bases for the EPA's partial disapproval of the SJV PM 2.5 SIP on November 9, 2011 (76 FR 69896).

The EPA also finds that the CAA section 172(c)(9) RFP contingency measure requirement for the 2012 RFP milestone year is moot as applied to the SJV nonattainment area because the area has achieved its SIP-approved emission reduction benchmarks for the 2012 RFP milestone year. This finding corrects the deficiency in the CAA section 172(c)(9) RFP contingency measures that was the second of two bases for the EPA's partial disapproval of the SJV PM 2.5 SIP on November 9, 2011 (76 FR 69896).

Finally, the EPA is approving enforceable commitments by the District to monitor, assess, and report on actual NO X and direct PM 2.5 emission reductions achieved through its implementation of specific Prop 1B and Carl Moyer Program grants and to remedy any identified emission reduction shortfall in a timely manner as found on page 3 of the SJVUPACD Governing Board Resolution No. 13-6-18, dated June 20, 2013.

Today's final actions lift the CAA section 179(b)(2) offset sanctions and terminate the CAA section 179(b)(1) highway funding sanction clock triggered by the 2011 partial disapproval of the SJV PM 2.5 SIP. These actions also terminate the EPA's obligation under CAA section 110(c) to promulgate a corrective Federal implementation plan within two years of the partial disapproval.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve State choices, provided that they meet the criteria of the 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it does not apply in Indian country located in the State, and the EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 21, 2014. 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)).

40 CFR part 52 is amended as follows:

Under the CAA Amendments of 1990, EPA designated and classified three Kentucky Counties (Boone, Campbell and Kenton) and four Ohio Counties (Butler, Clermont, Hamilton and Warren) (collectively referred to as the “Cincinnati/Northern Kentucky Area”) as a “moderate” nonattainment area for the 1-hour ozone national ambient air quality standards (NAAQS). See 56 FR 56694, effective January 6, 1992. The designation was based on the Area's 1-hour ozone design value of 0.157 parts per million for the three year period of 1988-1990.

Pursuant to the requirements of section 182(b)(3) of the CAA, KDAQ developed the Kentucky Administrative Regulation (KAR) 401 KAR 59:174 Stage II controls at gasoline dispensing facilities, and submitted the rule to EPA for approval as part of Kentucky's ozone SIP. The rule was adopted by Kentucky on January 12, 1998, and approved by EPA into the SIP on December 8, 1998. See 63 FR 675896. Under this regulation, gasoline dispensing facilities with a monthly throughput of 25,000 gallons or more located in a Kentucky County in which the entire County is classified as severe, serious, or moderate nonattainment for ozone are required to install Stage II vapor recovery systems.

On October 29, 1999, KDAQ submitted to EPA an ozone maintenance plan and request for redesignation to attainment for the Kentucky portion of the Cincinnati/Northern Kentucky Area. At that time the Kentucky portion of the Cincinnati/Northern Kentucky Area had three years of attaining data (1996-1998) and Kentucky had implemented all measures then required by the CAA for a moderate 1-hour ozone nonattainment area. The maintenance plan, as required under section 175A of the CAA, showed that nitrogen oxides and volatile organic compounds (VOC) emissions in the Kentucky portion of the Cincinnati/Northern Kentucky Area would remain below the 1990 “attainment year's” levels. In making these projections, KDAQ factored in the emissions benefit (primarily VOC) of the Kentucky portion of the Cincinnati/Northern Kentucky Area's Stage II program, and did not remove this program from the Kentucky SIP. The redesignation request and maintenance plan were approved by EPA, effective June 19, 2000 (65 FR 37879). Since the Kentucky Stage II program was already in place and had been included in the Commonwealth's October 29, 1999, redesignation request and 1-hour ozone maintenance plan for the Kentucky portion of the Cincinnati/Northern Kentucky Area, KDAQ elected not to remove the program from the SIP at that time.

On April 6, 1994, EPA promulgated regulations requiring the phase-in of onboard refueling vapor recovery (ORVR) systems on new motor vehicles. Under section 202(a)(6) of the CAA, moderate ozone nonattainment areas are not required to implement Stage II vapor recovery programs after promulgation of ORVR standards.

KDAQ submitted a SIP revision on January 17, 2014, to exempt Stage II vapor control requirements for the Hertz Corporation facility located at the Cincinnati/Northern Kentucky International Airport in Boone County. On February 14, 2014, EPA published a proposed rulemaking to approve Kentucky's January 17, 2014, SIP revision related to Stage II requirements at the Hertz Corporation facility. Detailed background for today's final rulemaking can be found in EPA's February 14, 2014, proposed rulemaking. See 79 FR 8923. The comment period for this proposed rulemaking closed on March 17, 2014. EPA did not receive any comments, adverse or otherwise, during the public comment period.

EPA is taking final action to approve the aforementioned source-specific SIP revision request from Kentucky. VOC emissions from vehicles at the Cincinnati/Northern Kentucky International Airport Hertz Corporation facility are controlled by ORVR, therefore, EPA has concluded that removal of Stage II requirements at this facility would not result in an increase of VOC emissions, and thus would not contribute to ozone formation. The Commonwealth has requested removal of this requirement for this facility and EPA has determined that Kentucky has fully satisfied the requirements of section 110(l) of the CAA. Therefore, EPA is taking final action to approve this source-specific SIP revision, as being consistent with section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 21, 2014. 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).

40 CFR part 52 is amended as follows:

Section 553 of the Administrative Procedures Act (APA), 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because no significant EPA judgment is involved in making a finding of failure to submit SIPs, or elements of SIPs, required by the CAA, where states have made no submissions to meet the requirement. No additional fact gathering is necessary. Thus, notice and public procedure are unnecessary. Furthermore, providing notice and comment would be impracticable because of the limited time provided under the CAA for making such determinations. EPA believes that because of the limited time provided to make findings of failure to submit regarding SIP submissions, Congress did not intend such findings to be subject to notice-and-comment rulemaking. Finally, notice and comment would be contrary to the public interest because it would divert Agency resources from the critical substantive review of submitted SIPs. See 58 FR 51270, 51272, note 17 (October 1, 1993); 59 FR 39832, 39853 (August 4, 1994). The EPA finds that these constitute good cause under 5 U.S.C. 553(b)(B).

EPA has also determined that today's Finding of Failure to Submit for Arkansas is effective immediately upon publication because this final action falls under the good cause exemption in 5 U.S.C. 553(d)(3) of the APA. The expedited effective date for this action is authorized under 5 U.S.C. 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The EPA has determined that there is good cause for making this rule effective upon publication because the PSD SIP element is already overdue and the state has been made aware of applicable provisions of the CAA relating to overdue SIP revisions. The State of Arkansas failed to submit a required PSD SIP revision by the mandated deadline of July 20, 2012. We have previously alerted Arkansas through meetings that it has failed to make the submittal by the deadline. Also on May 9, 2014, we sent a letter to Arkansas, explaining that we were planning to take the action we are finalizing today. Consequently, the State has been on notice that today's action was pending. The State and general public are aware of applicable provisions of the CAA that relate to failure to submit a required implementation plan. In addition, this action only starts a 24-month “clock” wherein the EPA must promulgate a Federal Implementation Plan. Furthermore, the purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to prepare before the final rule takes effect. Whereas here, the affected parties, such as the State of Arkansas and sources within the State, do not need time to adjust and prepare before the Finding of Failure to Submit takes effect. After numerous discussions with the Arkansas Department of Environmental Quality to resolve outstanding issues, the EPA has determined that moving as expeditiously as practicable on this finding is in the best interest of the implementation of the required PSD permitting program. The EPA finds that the above reasons support an effective date prior to thirty days after the date of publication and constitute good cause under 5 U.S.C. 553(d)(3).

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

The EPA initially established National Ambient Air Quality Standards (NAAQS) for particulate matter (PM) under section 109 of the CAA in 1971. Since then, the EPA has made a number of changes to these standards to reflect continually expanding scientific information. The revisions to the PM NAAQS are briefly summarized below.

• In 1971, the EPA established NAAQS for PM, measured as Total Suspended Particles (TSP) (36 FR 8186). The primary standards were 260 μg/m 3 24-hour average, not to be exceeded more than once per year, and 75 μg/m 3 , annual geometric mean. The secondary standard was 150 μg/m 3 , 24-hour, not to be exceeded more than once per year.

• In July 1987, the EPA changed the indicator for PM from TSP to PM 10 , the latter including particles with an aerodynamic diameter less than or equal to a nominal 10 μm. (52 FR 24634). The EPA also revised the primary standards by (1) replacing the 24-hour TSP standard with a 24-hour PM 10 standard of 150 μg/m 3 with no more than one expected exceedance per year, and (2) replacing the annual TSP standard with a PM 10 standard of 50 μg/m 3 , annual arithmetic mean. The secondary standard was revised by replacing it with 24-hour and annual PM 10 standards identical in all respects to the primary standards.

• In July 1997, the EPA determined that although the PM NAAQS should continue to focus on PM 10 , the fine and coarse fractions of PM 10 should be considered separately (62 FR 38652). New standards were added, using PM 2.5 as the indicator for fine particles. The PM 10 standards were retained for the purpose of regulating the coarse fraction of PM 10 . The EPA established two new PM 2.5 standards: an annual standard of 15 μg/m 3 , based on the 3-year average of annual arithmetic mean PM 2.5 concentrations from single or multiple monitors sited to represented community-wide air quality and a 24-hour standard of 65 μg/m 3 , based on the 3-year average of the 98th percentile of 24-hour PM 2.5 concentrations at each population-oriented monitor within the area.

• On October 17, 2006, the EPA promulgated revisions to the NAAQS for PM 2.5 and PM 10 with an effective date of December 18, 2006 (71 FR 61144). We lowered the 24-hour NAAQS for PM 2.5 from 65 μg/m 3 to 35 μg/m 3 , and retained the existing annual PM 2.5 NAAQS of 15 μg/m 3 . In addition, we retained the existing PM 10 24-hour NAAQS of 150 mg/m 3 , and revoked the annual PM 10 NAAQS (set at 50 mg/m 3 ).

• On January 15, 2013, the EPA promulgated revisions to the NAAQS for PM 2.5 and PM 10 with an effective date of March 18, 2013 (78 FR 3086). We lowered the annual standard for PM 2.5 to 12 μg/m 3 and retained the 24-hour PM 2.5 standard at the level of 35 μg/m 3 . For PM 10 , the EPA retained the current 24-hour PM 10 primary and secondary standards.

To implement the PM NAAQS for PSD purposes, EPA issued two separate final rules that establish the New Source Review (NSR) permitting requirements for PM 2.5 : the NSR PM 2.5 Implementation Rule promulgated on May 16, 2008 (73 FR 28321), and the PM 2.5 PSD Increments—Significant Impact Levels (SILs)—Significant Monitoring Concentration (SMC) Rule promulgated on October 20, 2010 (75 FR 64864).

EPA's final NSR PM 2.5 Implementation Rule required states to submit applicable SIP revisions to EPA no later than May 16, 2011, to address this rule's PSD and nonattainment NSR SIP requirements. With respect to PSD permitting, the SIP revision submittals are required to: (1) Address directly emitted PM 2.5 and precursor pollutants (including sulfur dioxide (SO 2 ) and nitrogen oxides (NO X )) that contribute to the secondary formation of PM 2.5 ; (2) establish significant emission rates for direct PM 2.5 and precursor pollutants; and (3) account for gases that condense to form particles (condensables) in PM 2.5 and PM 10 applicability determinations and emission limits in PSD permits.

The PM 2.5 PSD Increment—SILs—SMC Rule required states to submit SIP revisions to EPA by July 20, 2012, adopting provisions equivalent to or at least as stringent as the PM 2.5 PSD increments and associated implementing regulations. Specifically, the SIP rule requires a state's submitted PSD SIP revision to adopt and submit for EPA approval the PM 2.5 increments issued pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS. States were also required to adopt and submit for EPA approval revisions to the definitions for “major source baseline date,” “minor source baseline date,” and “baseline area” as part of the implementing regulations for the PM 2.5 increment.

The PM 2.5 PSD Increment—SILs—SMC Rule also allowed States to discretionarily adopt and submit for EPA approval: (1) SILs, which are used as a screening tool to evaluate the impact a proposed new major source or major modification may have on the NAAQS or PSD increment; and (2) a SMC (also a screening tool) which is used to determine the subsequent level of data gathering required for a PSD permit application for emissions of PM 2.5 . However, on January 22, 2013, the U.S. Court of Appeals for the District of Columbia granted a request from the EPA to vacate and remand portions of the federal PSD regulations (40 CFR 51.166(k)(2) and 52.21(k)(2)) establishing the SILs for PM 2.5 so that the EPA could reconcile the inconsistency between the regulatory text and certain statements in the preamble to the 2010 final rule. Sierra Club v. EPA, 705 F.3d 458, 463-64. The court declined to vacate the portion of the federal PSD regulations (40 CFR 51.165(b)(2)) establishing SILs for PM 2.5 that did not contain the same inconsistency in the regulatory text. Id. at 465-66. The court further vacated the portions of the PSD regulations (40 CFR 51.166(i)(5)(i)( c ) and 52.21(i)(5)(i)( c )) establishing a PM 2.5 SMC, finding that the EPA lacked legal authority to adopt and use the PM 2.5 SMC to exempt permit applicants from the statutory requirement to compile and submit ambient monitoring data. Id. at 468-69. On December 9, 2013, EPA issued a good cause final rule formally removing the affected SILs and SMC provisions from the CFR. See 78 FR 73698. As such, SIP submittals should no longer include the vacated PM 2.5 SILs at 40 CFR 51.166(k)(2) and 52.21(k)(2) and vacated PM 2.5 SMC provisions at 40 CFR 51.166(i)(5)(i)( c ) and 52.21(i)(5)(i)( c ) for PM 2.5 PSD permitting. EPA notes that today's finding of failure to submit for the State of Arkansas does not include the optional SILs and SMC component of the PM 2.5 PSD Increment—SILs—SMC Rule.

The EPA is making a finding that the State of Arkansas has failed to submit a required PSD SIP revision to address the implementation and permitting of PM 2.5 emissions in the Arkansas PSD program. Specifically, we are finding that Arkansas failed to submit a SIP revision, addressing the required PM 2.5 PSD elements establishing increments and the implementing regulations by the specified deadline of July 20, 2012, as required by the 2010 PM 2.5 PSD Increments—SILs—SMC Rule. By no later than 24 months after the effective date of this ruling, the EPA is required by the Act to promulgate a FIP for Arkansas to address the PM 2.5 PSD requirements for increment. In addition, CAA section 110(c) provides that EPA can promulgate a FIP immediately after making the finding of failure to submit a required SIP, as late as two years after making the finding, or any time in between. This finding of failure to submit does not impose sanctions or set deadlines for imposing sanctions as described in section 179 of the CAA, because this finding does not pertain to the elements of a part D, title I plan for nonattainment areas as required under section 110(a)(2)(I) and because this action is not a SIP call pursuant to section 110(k)(5). This action will be effective on May 22, 2014.

This action also does not make a finding of failure to submit for Arkansas regarding the required PM 2.5 PSD SIP revision due on May 19, 2011, pursuant to the 2008 NSR PM 2.5 Implementation Rule. EPA previously promulgated a partial approval and partial disapproval of the Arkansas infrastructure SIP for the 1997 ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS on August 20, 2012. See 77 FR 50033. The partial disapproval was specific to the Arkansas PSD program for failing to include the required PSD elements from the May 16, 2008 NSR PM 2.5 Implementation Rule. EPA's disapproval as to these required SIP revisions started a separate FIP clock because the Arkansas PSD program lacked the PM 2.5 PSD revisions as required by the 2008 rule. This separate FIP clock will expire on September 19, 2014.

EPA recognizes that the PM 2.5 PSD elements from 2008 and 2010 are necessary for proper functioning of the PSD program for issuing permits for PM 2.5 . As described above, we also acknowledge that we now have two separate FIP clocks running for PM 2.5 PSD elements with respect to Arkansas. The first clock, expiring on September 19, 2014, is for the PSD revisions required by the 2008 NSR PM 2.5 Implementation Rule. The second clock, ending 24-months from the effective date of today's finding, addresses the PSD revisions required by the 2010 PM 2.5 PSD Increments—SILs—SMC Rule. Pursuant to the CAA, EPA will promulgate a FIP to address the entirety of the PM 2.5 PSD permitting requirements in order to satisfy both FIP clocks and section 110(c) of the CAA.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under EO 12866 and 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This final rule does not establish any new information collection requirement apart from what is already required by law. This rule relates to the requirement in the CAA for states to submit PSD SIPs under section 166(b) to satisfy certain prevention of significant deterioration requirements under the CAA for the PM 2.5 NAAQS. Burden means the total time, effort or financial resources expended by persons to generate, maintain, retain or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install and utilize technology and systems for the purposes of collecting, validating and verifying information, processing and maintaining information and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in the CFR are listed in 40 CFR Part 9.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the APA or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions. For the purpose of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business that is a small industry entity as defined in the U.S. Small Business Administration (SBA) size standards (See 13 CFR 121); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. This action relates to the requirement in the CAA for states to submit PSD SIPs under section 166(b) to satisfy certain prevention of significant deterioration requirements of the CAA for the PM 2.5 NAAQS. Because EPA has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the APA and any other statute, it is not subject to the regulatory flexibility provisions of the RFA.

This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538 for state, local and tribal governments and the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of section 202 and 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action relates to the requirement in the CAA for states to submit PSD SIPs under section 166(b) to satisfy certain prevention of significant deterioration requirements under the CAA for the PM 2.5 NAAQS. This rule merely finds that Arkansas has not met that requirement. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector result from this action.

Additionally, because EPA has made a “good cause” that this action is not subject to notice-and-comment requirements under the APA or any other statute, it is not subject to sections 202 and 205 of the UMRA.

EO 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the EO to include regulations that have “substantial direct effects on the states, or the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132. The CAA establishes the scheme whereby states take the lead in developing plans to meet the NAAQS. This rule will not modify the relationship of the states and the EPA for purposes of developing programs to implement the NAAQS. Thus, EO 13132 does not apply to this rule.

EO 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This final rule does not have tribal implications, as specified in EO 13175. This rule responds to the requirement in the CAA for states to submit PSD SIPs under section 166(b) to satisfy certain prevention of significant deterioration requirements under the CAA for PM 2.5 NAAQS. No tribe is subject to the requirement to submit an implementation plan under section 166(b) within 21 months of promulgation of PSD regulations under section 166(a).

The EPA interprets EO 13045 (62 FR 19885, April23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it merely finds that Arkansas has failed to make a submission that is required under the Act to implement the PM 2.5 NAAQS.

This rule is not a “significant energy action” as defined in EO 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, the EPA did not consider the use of any VCS.

EO 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States. The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not directly affect the level of protection provided to human health or the environment. This notice is making a finding that the State of Arkansas failed to submit a SIP revision that provides certain basic permitting requirements for the PM 2.5 NAAQS.

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. Section 808 allows the issuing agency to make any rule effective “at such time as the Federal agency promulgating the rule determines” if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefor, and established an effective date of May 22, 2014. EPA submitted a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective May 22, 2014.

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 July 21, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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).)

Throughout this document wherever “we,” “us” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:

Section 110 of the CAA specifies the general requirements for states to submit SIPs to attain and maintain the NAAQS and the EPA's actions regarding approval of those SIPs. On February 14, 2012, Idaho submitted a SIP revision to the EPA demonstrating that the SIP meets the infrastructure requirements of the CAA for the 2008 Pb NAAQS. On March 26, 2014, we proposed approval of Idaho's February 14, 2012, submittal (79 FR 16722). An explanation of the CAA requirements and implementing regulations that are met by this SIP revision, a detailed explanation of the revision, and the EPA's reasons for the proposed action were provided in the notice of proposed rulemaking on March 26, 2014, and will not be restated here (79 FR 16722). The public comment period for our proposed action ended on April 25, 2014, and we received no comments.

The EPA is approving the February 14, 2012, submittal from Idaho demonstrating that the SIP meets the requirements of sections 110(a)(1) and (2) of the CAA for the 2008 Pb NAAQS. Specifically, we find that the Idaho SIP meets the following CAA section 110(a)(2) infrastructure elements for the 2008 Pb NAAQS: (A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). This action is being taken under section 110 of the CAA.

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

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

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

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

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

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

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

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

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 21, 2014. 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)).

40 CFR part 52 is amended as follows:

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

On April 16, 2014, the EPA concurred with a determination by the ODEQ and Metro, the metropolitan planning organization for the Portland area, that the replacement of a transit service increase TCM with an equivalent substitute transit service increase TCM met the requirements of CAA section 176(c)(8). (See also EPA's Guidance for Implementing the CAA section 176(c)(8) Transportation Control Measure Substitution and Addition Provision contained in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users which was signed into law on August 10, 2005, dated January 2009.) This action provides notice of the EPA's concurrence with this substitution, and codifies the substitute transportation control measure in the Federally approved Oregon SIP. The substitution replaces the existing transit service increase TCM with a TCM containing an equivalent method for assessing the transit service increase. The substituted TCM is: “Transit Service Increase: Regional transit service revenue hours (weighted by capacity) shall be increased 1.0% per year. The increase shall be assessed on the basis of cumulative average of actual hours for assessment conducted for the entire second ten-year Portland Area Carbon Monoxide Maintenance Plan (2007-2017). Transit service increase will be assessed on the basis of fiscal year (July 1-June 30) beginning with FY 2008.”

The TCM substitution process is collaborative, and includes participation by all affected jurisdictions and agencies, consultation with the EPA, and reasonable notice and opportunity for public comment. To develop a substitute TCM, the ODEQ and Metro consulted with the Transportation Policy Advisory Committee (TPAC), a technical advisory committee of the Joint Policy Advisory Committee on Transportation (JPACT) that is comprised of elected officials and representatives of agencies involved in transportation in the Portland area and includes representatives from the community, state and regional partners, and local jurisdictions. Public notice and comment was provided by Metro in coordination with the ODEQ. The public notice was published in The Oregonian on July 15, 2013, along with being posted on the ODEQ's Web page on July 15, 2013, published in the August 2013 Oregon Bulletin, and multiple other forms of notice as described in the docket.

Through the concurrence process, the EPA determined that the requirements of CAA section 176(c)(8) were satisfied, including the requirements that the substitute measures (1) achieve equivalent or greater emissions reductions than the control measure to be replaced, (2) are implemented on a schedule consistent with the schedule for the existing TCM, (3) have adequate personnel, funding and authority under state or local law to implement, monitor and enforce, and (4) are jointly concurred upon by the ODEQ, the EPA and Metro. Upon the EPA's concurrence, the transit service increase TCM substitution took effect as a matter of Federal law. A copy of the EPA's concurrence letter along with the ODEQ's letter submittal and additional support material is included in the Docket for this action. This letter can be accessed at www.regulations.gov using Docket ID No. EPA-R10-OAR-2014-0139. In accordance with the requirements for TCM substitution, on January 14, 2014, the ODEQ submitted a request for the EPA to update the Portland Area Carbon Monoxide portion of the Oregon SIP to reflect the EPA's concurrence on transit service increase TCM substitution in its SIP (the subject of this administrative change). Today, the EPA is taking administrative action to update the non-regulatory provisions of the Oregon SIP in 40 CFR 52.1970 (e) to reflect the EPA's concurrence on the transit service TCM substitution.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this action.

Although section 6 of Executive Order 13132 does not apply to this action, the EPA did consult with representatives of state and local governments in taking this action. This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), as it does not affect any tribal groups. Thus, Executive Order 13175 does not apply to this action.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA has determined that this administrative action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment.

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

In rule FR Doc. 2013-21618 published on September 9, 2013 (78 FR 54960), make the following correction. On page 54962, the sixth column of Table 52.1167 incorrectly contained the placeholder language “Insert next available paragraph number in sequence” in two locations. Rather than this language, table 52.1167 should have indicated the number “138” instead.

Part 52 of chapter I, title 40 of the Code of Federal Regulations, is amended as follows:

On March 31, 2014 (79 FR 17889), the EPA published a direct final rule approving a request from Florida to change the summertime RVP standard for Broward, Dade, Duval, Hillsborough, Palm Beach and Pinellas counties in Florida from 7.8 psi to 9.0 psi by amending the EPA's regulations at 40 CFR 80.27(a)(2). Additionally, in that direct final rule the EPA approved a request from North Carolina to change the summertime RVP standard for the Triangle and Triad Areas from 7.8 psi to 9.0 psi by amending the EPA's regulations at 40 CFR 80.27(a)(2). The Triangle Area is comprised of Durham and Wake Counties, and the Dutchville Township portion of Granville County. The Triad Area is comprised of the counties of Davidson, Forsyth and Guilford in their entirety, and the portion of Davie County bounded by the Yadkin River, Dutchmans Creek, North Carolina Highway 801, Fulton Creek and back to Yadkin River. In previous rulemakings, the EPA approved state implementation plan revisions from Florida and North Carolina which provided technical analyses that demonstrated that removal of the Federal RVP requirements of 7.8 psi for gasoline sold between June 1 and September 15 of each year in the six counties in Florida, and the North Carolina Triangle and Triad Areas would not interfere with maintenance of the national ambient air quality standards in these areas. In the direct final rule, the EPA stated that if adverse comments were received by April 30, 2014, the rule would be withdrawn and not take effect. On March 29, 2014, the EPA received a comment letter. The EPA interprets the comments in that letter as adverse and, therefore, the EPA is withdrawing the direct final rule. The EPA will address these comments in a separate final action based upon the proposed rulemaking action at 79 FR 17966 (March 31, 2014). The EPA will not institute a second comment period on this action.

Accordingly, the amendment to 40 CFR 80.27 which published in the Federal Register on March 31, 2014, at 79 FR 17895 is withdrawn as of May 22, 2014.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

Effective date. Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register . The EPA is issuing this final rule under CAA section 307(d)(1). Section 307(d)(1) states: “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. EPA is nevertheless acting consistently with the policies underlying APA section 553(d) in making this rule effective on May 30, 2014. APA section 553(d) allows an effective date less than 30 days after publication for a rule that “that grants or recognizes an exemption or relieves a restriction.” 5 U.S.C. 553(d)(1). This rule fits within that exception because it lifts the restriction on the introduction into commerce of gasoline with a RVP of greater than 7.8 psi sold in areas in Florida and North Carolina between June 1 and September 15 of each year. Because today's action can be considered to relieve a restriction that would otherwise prevent the introduction into commerce of gasoline with a RVP of greater than 7.8 psi, the EPA is making this action effective on May 30, 2014.

Throughout this document, “the Agency” is used to mean the EPA.

Entities potentially affected by this rule are fuel producers and distributors who do business in Florida and in North Carolina. Regulated entities include:

This table provides only a guide for readers regarding entities likely to be regulated by this action. You should carefully examine the regulations in 40 CFR 80.27 to determine whether your facility is impacted. If you have further questions, call the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

This final rule approves a request from Florida to change the summertime RVP standard for Broward, Dade, Duval, Hillsborough, Palm Beach and Pinellas counties in Florida from 7.8 psi to 9.0 psi by amending the EPA's regulations at 40 CFR 80.27(a)(2). Additionally, this final rule approves a request from North Carolina to change the summertime RVP standard for the Triangle and Triad Areas from 7.8 psi to 9.0 psi by amending the EPA's regulations at 40 CFR 80.27(a)(2). The Triangle Area is comprised of Durham and Wake Counties, and the Dutchville Township portion of Granville County. The Triad Area is comprised of the counties of Davidson, Forsyth and Guilford in their entirety, and the portion of Davie County bounded by the Yadkin River, Dutchmans Creek, North Carolina Highway 801, Fulton Creek and back to Yadkin River.

In previous rulemakings, the EPA approved state implementation plan (SIP) revisions from Florida and North Carolina which provided technical analyses that demonstrated that removal of the Federal RVP requirements of 7.8 psi for gasoline sold between June 1 and September 15 of each year in the six counties in Florida, and the North Carolina Triangle and Triad Areas would not interfere with maintenance of the national ambient air quality standards (NAAQS) in these areas. For more information on Florida's SIP revision for the six Florida counties and the EPA's analysis of Florida's SIP revision refer to the January 6, 2014, final rule at 79 FR 573; on North Carolina's SIP revision for the Triangle Area refer to the January 2, 2014 final rule at 79 FR 47; and on North Carolina's SIP revision for the Triad Area refer to the January 24, 2014 final rule at 79 FR 4082.

As mentioned above, this final rule approves requests from Florida and North Carolina to change the summertime RVP standard for six Florida counties, and for the Triangle and Triad Areas from 7.8 psi to 9.0 psi by amending the EPA's regulations at 40 CFR 80.27(a)(2). The preamble for this rulemaking is organized as follows. Section III provides the history of federal gasoline volatility regulation. Section IV describes the policy regarding relaxation of volatility standards in ozone nonattainment areas that are redesignated as attainment areas. Section V provides information specific to Florida's request for the six counties currently subject to the 7.8 psi summertime RVP requirements. Section VI provides information specific to North Carolina's requests for the counties in the Triangle and Triad Areas that are currently subject to the 7.8 psi summertime RVP requirements. Section VII provides EPA's response to the adverse comment received. Finally, Section VIII presents the final action in response to the requests from Florida and North Carolina.

On August 19, 1987 (52 FR 31274), the EPA determined that gasoline nationwide was becoming increasingly volatile, causing an increase in evaporative emissions from gasoline-powered vehicles and equipment. Evaporative emissions from gasoline, referred to as volatile organic compounds (VOC), are precursors to the formation of tropospheric ozone and contribute to the nation's ground-level ozone problem. Exposure to ground-level ozone can reduce lung function (thereby aggravating asthma or other respiratory conditions), increase susceptibility to respiratory infection, and may contribute to premature death in people with heart and lung disease.

The most common measure of fuel volatility that is useful in evaluating gasoline evaporative emissions is RVP. Under section 211(c) of the CAA, the EPA promulgated regulations on March 22, 1989 (54 FR 11868) that set maximum limits for the RVP of gasoline sold during the regulatory control periods that were established on a state-by-state basis in the final rule. The regulatory control periods addressed the portion of the year when peak ozone concentrations were expected. These regulations constituted Phase I of a two-phase nationwide program, which was designed to reduce the volatility of commercial gasoline during the high ozone season. On June 11, 1990 (55 FR 23658), the EPA promulgated more stringent volatility controls as Phase II of the volatility control program. These requirements established maximum RVP standards of 9.0 psi or 7.8 psi (depending on the state, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone NAAQS).

The 1990 CAA Amendments established a new section, 211(h), to address fuel volatility. Section 211(h) requires the EPA to promulgate regulations making it unlawful to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with an RVP level in excess of 9.0 psi during the high ozone season. Section 211(h) prohibits the EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that the Agency may impose a lower (more stringent) standard in any former ozone nonattainment area redesignated to attainment.

On December 12, 1991 (56 FR 64704), the EPA modified the Phase II volatility regulations to be consistent with section 211(h) of the CAA. The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, beginning in 1992. For areas designated as nonattainment, the regulations retained the original Phase II standards published on June 11, 1990 (55 FR 23658), which included the 7.8 psi ozone season limitation for certain areas. As stated in the preamble to the Phase II volatility controls and reiterated in the proposed change to the volatility standards published in 1991, the EPA will rely on states to initiate changes to the volatility program. The EPA's policy for approving such changes is described in Section IV of this preamble.

Florida and North Carolina initiated these changes by requesting that the EPA relax the 7.8 psi RVP standard for counties that are in ozone maintenance areas. Accordingly, the States revised their original modeling and maintenance demonstrations for these areas to reflect continued attainment under the relaxed 9.0 psi RVP standard that the States have requested. See Section V of this action for information specific to Florida's request for the six counties currently subject to the 7.8 psi summertime RVP requirements. See Section VI of this action for information specific to North Carolina's requests for the counties in the Triangle and Triad Areas that are currently subject to the 7.8 psi summertime RVP requirements.

As stated in the preamble for the EPA's amended Phase II volatility standards (56 FR 64706), any change in the volatility standard for a nonattainment area that was subsequently redesignated as an attainment area must be accomplished through a separate rulemaking that revises the applicable standard for that area. Thus, for former 1-hour ozone nonattainment areas where the EPA mandated a Phase II volatility standard of 7.8 psi RVP in the December 12, 1991 rulemaking, the 7.8 psi RVP will remain in effect, even after such an area is redesignated to attainment, until a separate rulemaking is completed that revises the RVP standard in that area from 7.8 psi to 9.0 psi.

As explained in the December 12, 1991, rulemaking, the EPA believes that relaxation of an applicable RVP standard is best accomplished in conjunction with the redesignation process. In order for an ozone nonattainment area to be redesignated as an attainment area, section 107(d)(3) of the Act requires the state to make a showing, pursuant to section 175A of the Act, that the area is capable of maintaining attainment for the ozone NAAQS for ten years. Depending on the area's circumstances, this maintenance plan will either demonstrate that the area is capable of maintaining attainment for ten years without the more stringent volatility standard or that the more stringent volatility standard may be necessary for the area to maintain its attainment with the ozone NAAQS. Therefore, in the context of a request for redesignation, the EPA will not relax the volatility standard unless the state requests a relaxation and the maintenance plan demonstrates, to the satisfaction of the EPA, that the area will maintain attainment for ten years without the need for the more stringent volatility standard.

On November 6, 1991, the EPA designated and classified the Southeast Florida area (i.e., Broward, Dade and Palm Beach counties) as Moderate; the Jacksonville area (i.e., Duval County) as Transitional; and the Tampa area (i.e., Hillsborough and Pinellas counties) as Marginal nonattainment areas for the 1-hour ozone NAAQS. See 56 FR 56694 (November 6, 1991). Among the requirements applicable to nonattainment areas for the 1-hour ozone NAAQS was the requirement to meet certain RVP standards for gasoline sold commercially during the high ozone season. See 55 FR 23658 (June 11, 1990). Thus, the RVP requirements for gasoline sold in these three 1-hour ozone nonattainment areas was 7.8 psi from June 1 through September 15 of each year. Subsequently, each area was redesignated to attainment for the 1-hour ozone NAAQS. 1 Florida's redesignation requests did not include a request for relaxation of the gasoline volatility standard. 2 3

On August 15, 2013, the State of Florida, through the Florida Department of Environmental Protection (FDEP), submitted a request for the EPA to relax the Federal RVP requirement of 7.8 psi in Broward, Dade, Duval, Hillsborough, Palm Beach and Pinellas Counties in Florida. The State also submitted a technical analysis which demonstrated that the less-stringent RVP in these counties would not interfere with continued maintenance of the 1997 8-hour ozone NAAQS or any other applicable standard. 4 Specifically, the State updated the 10-year maintenance plans that were submitted for the three 1-hour ozone maintenance areas under section 110(a)(1) of the CAA for the 1997 ozone NAAQS. 5 As required, these section 110(a)(1) maintenance plans provided for continued attainment and maintenance of the 1997 8-hour ozone NAAQS for at least 10 years from the effective date of these areas' designation as attainment for the 1997 8-hour ozone NAAQS. These plans also included components demonstrating how each area will continue to attain the 1997 8-hour ozone NAAQS, and provided contingency measures should an area violate the NAAQS. Florida's previous ozone redesignation requests and maintenance plans for these areas did not remove the 7.8 psi RVP standard. See 75 FR 29671 (May 27, 2010).

As mentioned above, on August 15, 2013, FDEP submitted changes to the three CAA section 110(a)(1) maintenance plans that collectively cover Broward, Dade, Duval, Hillsborough, Palm Beach and Pinellas Counties in Florida. Florida's August 15, 2013, SIP revision modifies the existing section 110(a)(1) maintenance plans to account for a less stringent applicable RVP gasoline requirement of 9.0 psi for these areas. Specifically, Florida's August 15, 2013, SIP revision included an evaluation of the impact that the removal of the 7.8 psi RVP requirement would have on maintenance of the 1997 and 2008 ozone standards, and on other applicable NAAQS. The EPA evaluated Florida's August 15, 2013, SIP revision in a previous rulemaking that was subject to public notice-and-comment and no comments were received. The EPA approved Florida's August 15, 2013, SIP revision on January 6, 2014. See 79 FR 573. In this final action, based on the previous approval of Florida's August 15, 2013, SIP revision, and the fact that the areas are currently attaining all ozone NAAQS, the EPA is approving Florida's request to relax the high ozone season RVP standard for Broward, Dade, Duval, Hillsborough, Palm Beach and Pinellas counties from 7.8 psi to 9.0 psi.

The following two sections provide the EPA's analysis of North Carolina's requests to relax the Federal RVP requirements in the Triangle and Triad Areas.

On November 6, 1991, the EPA designated and classified Durham and Wake Counties, and the Dutchville Township portion of Granville County (also known as the Triangle Area at the time) as a Moderate nonattainment area for the 1-hour ozone NAAQS. See 56 FR 56694 (November 6, 1991). Among the requirements applicable to nonattainment areas for the 1-hour ozone NAAQS was the requirement to meet certain RVP standards for gasoline sold commercially during the high ozone season. See 55 FR 23658 (June 11, 1990). Thus, the RVP requirement for gasoline sold in the Triangle Area was 7.8 psi from June 1 through September 15 of each year. On April 18, 1994, the Triangle Area was redesignated to attainment for the 1-hour ozone standard. See 59 FR 18300. North Carolina's redesignation request for the Triangle Area did not include a request for relaxation of the gasoline volatility standard. 6 7 8

On March 27, 2013, the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), submitted a request for the EPA to relax the Federal RVP requirement of 7.8 psi in Wake and Durham Counties, and the Dutchville Township portion of Granville County that was originally included in the 1-hour ozone nonattainment area. The State also submitted a technical analysis that demonstrated that the less-stringent RVP in these counties would not interfere with continued maintenance of the 1997 8-hour ozone NAAQS or any other applicable standard. Specifically, the State updated the 10-year maintenance plan that was submitted for the Triangle 1997 8-hour ozone maintenance area under section 175A of the CAA. As required, this section 175A maintenance plan provided for continued attainment and maintenance of the 1997 8-hour ozone NAAQS for at least 10 years from the EPA's redesignation of the area from nonattainment to attainment for the 1997 8-hour ozone NAAQS. This plan also included components demonstrating how the area will continue to attain the 1997 8-hour ozone NAAQS, and provided contingency measures should the area violate the NAAQS. North Carolina's previous ozone redesignation requests and maintenance plans for this area did not remove the 7.8 psi RVP standard. See 72 FR 72948 (December 26, 2007).

As mentioned above, on March 27, 2013, NC DENR submitted changes to the section 175A maintenance plan for the Triangle Area. North Carolina's March 27, 2013, SIP revision modifies the existing section 175A maintenance plan to account for a less stringent applicable RVP gasoline requirement of 9.0 psi for the Triangle Area. Specifically, North Carolina's March 27, 2013, SIP revision included an evaluation of the impact that the removal of the 7.8 psi RVP requirement would have on maintenance of the 1997 and 2008 ozone standards, and on other applicable NAAQS. The EPA evaluated North Carolina's March 27, 2013, SIP revision in a previous rulemaking that was subject to public notice-and-comment. No adverse comments and one supportive comment were received on that proposed action. The EPA approved North Carolina's March 27, 2013, SIP revision on January 2, 2014. See 79 FR 47. In this action, based on the EPA's previous approval of North Carolina's March 27, 2013, SIP revision, and the fact that the Triangle Area is currently attaining all ozone NAAQS, the EPA is approving North Carolina's request to relax the RVP standard for Wake and Durham Counties, and a portion of Granville County in North Carolina from 7.8 psi to 9.0 psi from June 1 through September 15 of each year.

On November 6, 1991, the EPA designated Davidson, Forsyth and Guilford counties in their entirety and the portion of Davie County bounded by the Yadkin River, Dutchmans Creek, North Carolina Highway 801, Fulton Creek and back to Yadkin River in the Triad Area as a Moderate nonattainment area for the 1-hour ozone NAAQS. See 56 FR 56694 (November 6, 1991). Among the requirements applicable to nonattainment areas for the 1-hour ozone NAAQS was the requirement to meet certain RVP standards for gasoline sold commercially during the ozone season. See 55 FR 23658 (June 11, 1990). Thus, the RVP requirement for gasoline sold in the Triad Area was 7.8 psi from June 1 through September 15 of each year. On April 18, 1994, the Triad Area was redesignated to attainment for the 1-hour ozone standard. See 59 FR 18300. North Carolina's redesignation request for the Triad Area did not include a request for the relaxation of the gasoline volatility standard. 9 10 11 12

Beginning in 1998 with the enactment of section 347 of the Department of the Interior and Related Agencies Appropriation Act, 1999, the Forest Service has been authorized to carry out Stewardship End Results Contracting Projects; first on a pilot basis and then, through a succession of subsequent amendments, this authority was expanded. The enactment of Section 8205 of the Agricultural Act of 2014 sets forth the permanent authority for the conduct of Stewardship End Resulting Contracting Projects by adding a new section 604 to the Healthy Forests Restoration Act of 2003. Section 8205 contains a provision that “not later than 90 days after the date of enactment of this section, the Chief and the Director shall issue for use in all contracts and agreements under this section fire liability provisions that are in substantially the same form as the fire liability provisions contained in—(A) integrated resource timber contracts, as described in the Forest Service contract numbered 2400-13, part H, section H.4; and (B) timber sale contracts conducted pursuant to section 14 of the National Forest Management Act of 1976 (16 U.S.C. 472a).”

This interim rule establishes a new AGAR clause for use in stewardship contracts subject to the FAR. This clause addresses fire liability on stewardship end results contracts as required in the 2014 Agricultural Act. The text of the clause is closely specified in the law. Therefore, it has been determined that this rule should become effective upon publication. However, comments are requested with regard to the interim rule.

USDA certifies that this proposed rule will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. There is no additional submission required as a result of this action. The rule will not have a significant impact on the small business community or on a substantial number of small businesses. The Department invites comment on its estimates for the potential impact of this rulemaking on small businesses.

The Paperwork Reduction Act does not apply because the proposed rule does not impose any record keeping or information collection requirements that require approval by the Office of Management and Budget.

The USDA has determined that this interim rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

This interim rule has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. It has been determined that this is not a significant rule. This rule would not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This interim rule would not interfere with an action taken or planned by another agency, nor raise new legal or policy issues. Finally, this interim rule would not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this interim rule is not subject to Office of Management and Budget (OMB) review under Executive Order (E.O.) 12866.

The USDA has analyzed this interim rule in accordance with the principles and criteria contained in E.O. 12630 and determined that the rule would not pose the risk of a taking of private property.

The USDA has reviewed this interim rule under E.O. 12778, Civil Justice Reform. Under this rule, (1) all State and local laws and regulations that conflict with this rule or that impede its full implementation would be preempted; (2) no retroactive effect would be given to this interim rule; and (3) it would require administrative proceedings before parties may file suit in court challenging its provisions.

The USDA has considered this interim rule under the requirements of E.O. 13132 on federalism and has determined that this rule conforms to the federalism principles in the E.O. The rule would not impose any compliance costs on the States; and would not have any substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Moreover, this interim rule does not have tribal implications as defined by E.O. 13175, Consultation and Coordination with Indian Tribal Governments, and therefore advance consultation with tribes is not required.

The USDA has reviewed this interim rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or use and has determined that this rule would not constitute a significant energy action as defined in the E.O.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the USDA assessed the effects of this interim rule on State, local, and tribal governments and the private sector. This rule would not compel the expenditure of $100 million, or more by any State, local, or tribal government, or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.

For the reasons set forth in the preamble, the Department of Agriculture amends 48 CFR Chapter 4, in the following manner:

The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) cooperatively manage the summer flounder, scup, and black sea bass fisheries under the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP). Fishery specifications in these fisheries include various catch and landing subdivisions, such as the commercial and recreational sector annual catch limits (ACLs), annual catch targets (ACTs), sector-specific landing limits (i.e., the commercial fishery quota and recreational harvest limit (RHL)), and research set-aside (RSA) established for the upcoming fishing year. Details of each subdivision appear later in this rule.

The FMP and its implementing regulations establish the Council's process for establishing specifications. All requirements of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), including the 10 national standards, also apply to specifications.

The management units specified in the FMP include summer flounder ( Paralichthys dentatus ) in U.S. waters of the Atlantic Ocean from the southern border of North Carolina northward to the U.S./Canada border, scup ( Stenotomus chrysops ), and black sea bass ( Centropristis striata ) in U.S. waters of the Atlantic Ocean from35°13.3′ N. lat. (the latitude of Cape Hatteras Lighthouse, Buxton, NC) northward to the U.S./Canada border. Detailed background information regarding the status of the summer flounder, scup, and black sea bass stocks and the development of the 2014 and 2015 specifications for these fisheries was provided in the proposed specifications (March 31, 2014; 79 FR 17995). That information is not repeated here.

NMFS will establish the 2014 recreational management measures (i.e., minimum fish size, possession limits, and fishing seasons) for summer flounder, scup, and black sea bass by publishing proposed and final rules in the Federal Register at a later date.

This action specifies the allowed harvest limits for the commercial and recreational fisheries for the 2014 summer flounder fishery, and the 2015 summer flounder, scup, and black sea bass fisheries. Specifications for all three species for fishing year 2014 were implemented in 2012 (December 31, 2012; 77 FR 76942). This rule modifies the 2014 summer flounder specifications based an updated stock assessment conducted by the NMFS Northeast Fisheries Science Center (NEFSC) in July 2013, and establishes the 2015 summer flounder specifications. This rule also establishes the 2015 scup and black sea bass specifications. This rule makes no changes to the 2014 scup specifications, previously established in 2012, and the 2014 black sea bass specifications, last revised in 2013 (June 21, 2013; 78 FR 37475). This action will establish the following specifications:

The summer flounder stock was declared rebuilt in 2011. The new (2013) stock assessment utilized to derive specification recommendations indicates that summer flounder were not overfished and that overfishing did not occur in 2012, the most recent year of available data.

The overfishing limit (OFL) for 2014 was estimated to be 26.76 million lb (12,138 mt). Based on this information, the 2014 ABC for summer flounder is 23.94 million lb (9,950 mt). The OFL for 2015 is projected to be 27.06 million lb (12,275 mt), and the 2015 ABC for summer flounder is 22.77 million lb (10,329 mt). Consistent with the summer flounder regulations, the sum of the recreational and commercial sector ACLs is equal to the ABC. ACL is an expression of total catch (i.e., landings and dead discarded fish). To derive the ACLs, the sum of the sector-specific estimated discards is removed from the ABC to derive the landing allowance. The resulting landing allowance is apportioned to the commercial and recreational sectors by applying the FMP allocation criteria: 60 percent to the commercial fishery and 40 percent to the recreational fishery. Using this method ensures that each sector is accountable for its respective discards, rather than simply apportioning the ABC by the allocation percentages to derive the sector ACLs. Although the derived ACLs are not split exactly 60/40, the landing portions of the ACLs preserve the 60/40 allocation split, consistent with the FMP. This process results in a commercial ACL of 12.89 million lb (5,837 mt) for 2014, and 13.34 million lb (6,049 mt) for 2015. The recreational ACLs are 9.07 million lb (4,113 mt) for 2014 and 9.44 million lb (4,280 mt) for 2015. The ACTs (both commercial and recreational) are equal to their respective ACL for both 2014 and 2015. Removing the estimated discards and 3 percent of the TAL for RSA, the commercial summer flounder quotas are 10.51 million lb (4,767 mt) for 2014 and 10.74 million lb (4,870 mt) for 2015. The RHLs are 7.01 million lb (3,179 mt) for 2014 and 7.16 million lb (3,247 mt) for 2015.

Table 3 presents the final allocations for 2014, by state, with the commercial portion of the RSA deduction. In December 2013, NMFS published a document (78 FR 78786) indicating what, if any, adjustments would be required to the state commercial summer flounder quotas as a result of commercial sector overages. Those overages have been applied to the new specifications for fishing year 2014 as well, and are presented in Table 3. Any commercial quota adjustments to account for overages will be published prior to the start of the 2015 fishing year. As described in the document, consistent with the quota-setting procedures for the FMP, summer flounder overages are determined based upon landings for the period January-October 2013, plus any previously unaccounted for overages. Table 3 summarizes, for each state, the commercial summer flounder percent shares as outlined in § 648.102 (c)(1)(i), the resultant 2014 commercial quotas (both initial and after deducting the RSA), the quota overages as described above, and the final adjusted 2014 commercial quotas, after deducting the RSA.

Table 4 presents the initial allocations of summer flounder for 2015, by state, with and without the commercial portion of the RSA deduction. These state quota allocations for 2015 are preliminary and are subject to change if there are overages of states' quotas carried over from a previous fishing year, as well as any adjustments needed after the 2015 RSA projects are awarded. The final commercial quota allocations will be announced in a Federal Register document prior to the start of the 2015 fishing year.

Table 3 shows that, for Delaware, the amount of overharvest from previous years is greater than the amount of commercial quota allocated to Delaware for 2014. As a result, there is no quota available for 2014 in Delaware. The regulations at § 648.4(b) provide that Federal permit holders, as a condition of their permit, must not land summer flounder in any state that the Administrator, Greater Atlantic Region, NMFS, has determined no longer has commercial quota available for harvest. Therefore, landings of summer flounder in Delaware by vessels holding commercial Federal summer flounder permits are prohibited for the 2014 calendar year, unless additional quota becomes available through a quota transfer and is announced in the Federal Register . Federally permitted dealers are advised that they may not purchase summer flounder from federally permitted vessels that land in Delaware for the 2014 calendar year, unless additional quota becomes available through a transfer, as mentioned above.

Using the appropriate control rule and applying the Council's risk policy, the ABC for scup is 33.77 million lb (15,320 mt) for fishing year 2015. The stock assessment review upon which the specifications are based indicates that scup biomass is currently lower than in recent years. Therefore, the catch limits are lower than those for fishing year 2014, but are still relatively high compared to recent landings.

The scup management measures specify that the ABC is equal to the sum of the commercial and recreational sector ACLs. It was recommended that the ACTs (both commercial and recreational) should be set equal to the respective ACLs for fishing year 2015. Therefore, the 2015 commercial sector ACL/ACT is 26.35 million lb (11,950 mt) and the 2015 recreational sector ACL/ACT is 7.43 million lb (3,370 mt). After 840,990 lb (381 mt) of RSA and discards (commercial: 5.11 million lb (2,321 mt); recreational: 630,000 lb (285 mt)) are removed, the 2015 commercial quota is 20.60 million lb (9,343 mt) and the 2015 recreational harvest limit is 6.60 million lb (2,991 mt).

The scup commercial quota is divided into three commercial fishery quota periods. If there is a commercial overage applicable to the 2015 scup commercial quota, a document will be published prior to the start of the 2015 fishing year. The period quotas, after deducting for RSA, are detailed in Table 6. Unused Winter I quota may be carried over for use in the Winter II period. The Winter I possession limit will drop to 1,000 lb (454 kg) upon attainment of 80 percent of that period's allocation.

An increase in the Winter II commercial scup possession limit from 2,000 lb (907 kg) to 12,000 lb (5,443 kg) is also being implemented in this action. Because the commercial fishery has under-harvested the scup quota in recent years, this increase in the possession limit is expected to increase efficiency in the scup fishery. The quota period possession limits are shown in Table 7. The increase in the Winter II possession limit does not impact the potential additional increase as a result of a quota transfer from Winter I. If the Winter I quota is not fully harvested, the remaining quota is transferred to Winter II. The Winter II possession limit may be adjusted (in association with a transfer of unused Winter I quota to the Winter II period) via notification in the Federal Register . The regulations specify that the Winter II possession limit increases consistent with the increase in the quota, as described in Table 8.

The 2015 black sea bass ABC is 5.50 million lb (2,494 mt), equal to the 2013 and 2014 fishing years' ABC. The fishing year 2015 commercial ACL and ACT are 2.60 million lb (1,180 mt), the recreational ACL and ACT are 2.90 million lb (1,314 mt), the commercial quota is 2.17 million lb (986 mt), and the RHL is 2.26 million lb (1,026 mt). The quotas include reductions for RSA (3 percent) and discards.

On March 31, 2014, NMFS published proposed specifications for public notice and comment. NMFS received one letter containing comments on three issues. The one commenter suggested that the quotas should be reduced by 50 percent, that exempted fishing permits (discussed under the RSA sections) were unnecessary, and that the scup possession limit should not be increased.

NMFS disagrees with each of those statements. The quotas established through this final rule were based on the best available science, as recommended by the Council's SSC. Thus, NMFS did not take the suggestion to reduce the quotas by 50%. The RSA program continues to provide a mechanism to fund research and compensate vessel owners through the sale of fish harvested under the research quota. This program provides valuable scientific information and fosters cooperative research throughout the region. Further, the scup quota has not been fully harvested in several years and the Council has concluded that a Winter II possession limit closer to the Winter I possession limit of 20,000 lb would allow the industry to fish more efficiently. Thus, for this reason, NMFS did not implement the suggestion that the scup possession limit should not be increased.

The Administrator, Greater Atlantic Region, NMFS, determined that this final rule is necessary for the conservation and management of the summer flounder, scup, and black sea bass fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

These specifications are exempt from the procedures of Executive Order 12866.

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

A FRFA was prepared pursuant to 5 U.S.C. 604(a), and incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, and a summary of the analyses completed to support the action. A copy of the EA//IRFA is available from the Council (see ADDRESSES ).

The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

A description of the reasons why this action is being taken, and the objectives of and legal basis for this final rule, is contained in the preambles to the proposed rule and this final rule and is not repeated here.

No changes to the proposed rule were required to be made as a result of public comments. None of the comments received raised specific issues regarding the economic analyses summarized in the IRFA or the economic impacts of the rule more generally. For a summary of the comments received, and the responses thereto, refer to the “Comments and Responses” section of this preamble.

The Small Business Administration defines a small business in the commercial harvesting sector as a firm with receipts (gross revenues) of up to $5.0 and $19.0 million for shellfish and for finfish business, respectively. A small business in the recreational fishery is a firm with receipts of up to $7.0 million. The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for summer flounder, scup, or black sea bass, as well as owners of vessels that fish for any of these species in state waters. The Council estimates that the 2014-2015 specifications could affect 986 entities that are small and 6 that are large, assuming average revenues for the 2010-2013 period. The majority of the permitted vessels readily fall within the definition of small business. Estimates of costs associated with this rule are discussed further below.

No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

Specification of commercial quotas and possession limits is constrained by the conservation objectives set forth in the FMP and implemented at 50 CFR part 648 under the authority of the Magnuson-Stevens Act. Economic impacts of changes in year-to-year quota specifications may be offset by adjustments to such measures as commercial fish sizes, changes to mesh sizes, gear restrictions, or possession and trip limits that may increase efficiency or value of the fishery. For 2014 and 2015, this final rule implements one such measure: Increasing the scup Winter II possession limit. Therefore, the economic impact analysis of the action is evaluated on the different levels of quota specified in the alternatives and the increase in the possession limit. While the overall scup catch limits have been decreasing slightly, the scup quota has been significantly under-harvested in recent years. As a result, the increase in the scup possession limit is intended to offset the quota decrease by allowing the fleet to fish more efficiently. The ability of NMFS to minimize economic impacts for this action is constrained to approving quota levels that provide the maximum availability of fish while still ensuring that the required objectives and directives of the FMP, its implementing regulations, and the Magnuson-Stevens Act are met. In particular, the Council's SSC has made recommendations for the 2014-2015 ABC level for all three stocks. NMFS considers these recommendations to be consistent with National Standard 2. Establishing catch levels higher than the SSC ABC recommendations is not permitted under the Magnuson-Stevens Act.

The economic analysis for the 2014-2015 specifications assessed the impacts for quota alternatives that achieve the aforementioned objectives. The Council analyzed three sets of combined catch limit alternatives for the 2014-2015 summer flounder, scup, and black sea bass fisheries, even though the 2014 scup and black sea bass catch limits are not being considered for modification. Of these, one alternative, labeled Alternative 3 for each species, contained the most restrictive options (i.e., lowest total landing levels) for each fishery: Commercial quotas of 9.18 million lb (4,164 mt) for summer flounder, 10.68 million lb (4,844 mt) for scup, and 1.09 million lb (494 mt) for black sea bass; and recreational harvest limits of 6.12 million lb (2,776 mt) for summer flounder, 3.01 million lb (1,365 mt) for scup, and 1.14 million lb (517 mt) for black sea bass. The catch limits associated with Alternative 3 pre-date the ABC framework, thus the information for this alternative is presented in terms of landing levels. Please see the EA for a detailed discussion on this alternative. While the Alternative 3 measures would achieve the objectives of the proposed action for each of three species, they have the highest potential adverse economic impacts on small entities in the form of potential foregone fishing opportunities. Alternative 3 was not preferred by the Council because the other alternatives considered are expected have lower adverse impacts on small entities while achieving the stated objectives of sustaining the summer flounder, scup, and black sea bass stocks, consistent with the FMP and Magnuson-Stevens Act.

Another alternative, Alternative 2 (status quo), would maintain the current 2014 ABC for summer flounder of 22.24 million lb (10,088 mt). Alternative 2 (status quo) would implement the following ABCs in 2015: Summer flounder, 22.24 million lb (10,088 mt); scup, 35.99 million lb (16,325 mt); and black sea bass, 5.5 million lb (2,494 mt). This alternative is not consistent with the goals and objectives of the FMP and the Magnuson-Stevens Act. The status quo alternative would result in fishing limits for the 2014 summer flounder fishery and for the 2015 summer flounder and scup fisheries which are higher than the recommended levels. This could result in overfishing of the resources and substantially compromise the mortality and/or stock rebuilding objectives for each species, contrary to laws and regulations.

Likewise, a “true” no action alternative, wherein no quotas are adjusted for 2014 or established for 2015, was excluded from analysis because it is not consistent with the goals and objectives of the FMP and the Magnuson-Stevens Act. Implementation of the no action alternative in 2014 or 2015 would substantially complicate the approved management programs for these three species. NMFS is required under the FMP's implementing regulations to implement specifications for these fisheries on an annual basis, and for up to 3 years. The no action alternative would result in no fishing limits for 2015 and would maintain a fishing limit for the 2014 summer flounder fishery which is higher than the recommended level. This could result in overfishing of the resources and substantially compromise the mortality and/or stock rebuilding objectives for each species, contrary to laws and regulations.

Through this final rule, NMFS implements Alternative 1 (the Council's preferred alternative). Under this alternative, NMFS would implement the ABCs in 2014 for summer flounder (21.94 million lb (9,950 mt)). This final rule also implements the following ABCs for 2015: Summer flounder, 22.77 million lb (10,329 mt); scup, 33.77 million lb (15,320 mt); and black sea bass, 5.5 million lb (2,494 mt). This alternative consists of the quota levels that pair the lowest economic impacts to small entities and meet the required objectives of the FMP and the Magnuson-Stevens Act. The respective specifications contained in this final rule for all three species were selected because they satisfy NMFS' obligation to implement specifications that are consistent with the goals, objectives, and requirements of the FMP, its implementing regulations, and the Magnuson-Stevens Act. The F rates associated with the catch limits for all three species all have very low likelihoods of causing overfishing to occur in 2014 or 2015.

The revenue decreases associated with allocating a portion of available catch to the RSA program are expected to be minimal (approximately between $300 and $1,000 per vessel), and are expected to yield important benefits associated with improved fisheries data. It should also be noted that fish harvested under the RSA program can be sold, and the profits used to offset the costs of research. As such, total gross revenues to the industry are not expected to decrease substantially, if at all, as a result of this final rule authorizing RSA for 2014 and 2015.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal permits issued for the summer flounder, scup, and black sea bass fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see ADDRESSES ) and at the following Web site: http://www.nero.noaa.gov .

The DGN fishery is managed under the Federal Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). The HMS FMP was prepared by the Pacific Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) by regulations at 50 CFR part 660.

On September 4, 2013, NMFS published in the Federal Register a temporary rule (78 FR 54548) for emergency action to modify the California swordfish/thresher shark DGN fishery for the 2013-2014 fishing season under authority of section 305(c)(1) of the MSA. The purpose of the temporary rule stems from the observed entanglement of two sperm whales by a DGN fishing vessel in 2010 and the need to reduce the risk associated with sperm whale bycatch in the DGN fishery for the 2013-2014 fishing season, in accordance with the MSA, Endangered Species Act (ESA) and the MMPA. Implementation of the temporary regulations allowed NMFS to issue an MMPA 101(a)(5)(E) permit providing coverage for sperm whale takes in the DGN fishery. The temporary regulations implemented, among other measures, mandatory monitoring (VMS) and observer requirements (pre-trip notification and a 100% deep water closure zone unless a NMFS-certified observer was on board), and would have immediately shut down the fishery for the calendar year in the event of a sperm whale interaction. A full discussion of the background and justification for the temporary rule emergency measures was presented in the preamble prepared for that action and is not repeated here.

The temporary rule expired on January 31, 2014, which corresponded with the traditional end of the DGN fishing season. From February 1 through April 30, the DGN fishery is prohibited from operating inside the West Coast Exclusive Economic Zone (EEZ). See 50 CFR 660.713(d). No fishing effort has occurred during this period due to the distance involved in transiting to fishing areas beyond the EEZ, coupled with a lack of swordfish availability. The DGN fishery is allowed access inside the EEZ off the coasts of California and Oregon from May 1 through August 14, but is prohibited from operating within 75 miles of the coast. Very little DGN fishing effort typically takes place during this time due mainly to the lack of swordfish availability. The core of the DGN fishery, and virtually all of the contemporary fishing effort, takes place from August 15 through January 31. NMFS took public comment on the original temporary rule commencing September 4, 2013, and ending on October 4, 2013.

This action is necessary to retain in force the earlier temporary regulations, while NMFS develops a permanent rule to adequately monitor the DGN fishery and minimize sperm whale interactions by the fishery. Without the temporary regulations remaining in place, the DGN fishery may not be properly monitored, and therefore might risk additional negative sperm whale interactions, contrary to the MMPA and ESA.

The Assistant Administrator for Fisheries, NOAA (AA) finds that providing the public with notice and an opportunity comment on this action would be contrary to the public interest, and therefore waives this requirement of the Administrative Procedure Act (APA).

An owner/operator of a federally-permitted DGN fishing vessel has informed NMFS that he may fish for thresher shark/swordfish on or after May 1, 2014, when the DGN fishery can legally operate within the EEZ, but outside 75 miles from the coast of California. Prohibiting unobserved DGN vessels from fishing in the EEZ off California in waters seaward of the 1,100 fm (2,012 m) depth contour, and setting a limit of one serious injury/mortality to sperm whales interacting with DGN gear, will protect sperm whales from potential interactions with the DGN fishery, such as occurred in 2010, where two sperm whales became entangled in DGN fishing gear. NMFS' long term research vessel sightings of sperm whales in the California Current indicate that 90 percent of sightings occurred in waters deeper than 1,100 fm (2,012 m). Further, NMFS' analyses of DGN observer data indicate that an average of approximately 13 percent of total annual DGN fishing occurred in the deeper water zone in years 2009 through 2011. NMFS' Southwest Fisheries Science Center scientists have suggested that reducing spatial overlap of fishing effort and sperm whale habitat may be an effective means to reduce the risk of sperm whale bycatch. There is no action that NMFS can take through the normal rulemaking process that would enable NMFS to implement the requirement for observer monitoring of DGN vessels in the deeper water area and the cap of one sperm whale serious injury/mortality for the DGN fishery to reduce the bycatch risk of this species before the DGN fishery begins actively fishing in waters inhabited by sperm whales. This emergency action enables NMFS to keep the fishery operating while a permanent rule is under development, thus avoiding unnecessary adverse biological and economic impacts.

Without this rule, sperm whales will be at risk of unauthorized takings, possibly leading to injury or death, which is contrary to the public interest in protecting these marine mammals. Due to the urgent need to protect sperm whales before NMFS issues any final rule, NMFS is waiving the public notice and opportunity for comment under the APA. However although this action is being implemented without notice and request for advance public comment, NMFS is seeking public comment on this rule for purposes of identifying possible measures for long-term management.

For these same reasons stated above, pursuant to 5 U.S.C. 553(d)(3), the AA finds good cause to waive the full 30-day delay in effectiveness for this rule. It would be contrary to the public interest if this rule does not become effective immediately, because the DGN fishery can fish within 75 nautical miles of shore starting May 1 through August 14. Without this emergency rule, NMFS would not provide 100 percent observer coverage in the deeper water area with higher concentrations of sperm whales, or be able to close the fishery in the event that there is one serious injury or mortality to a sperm whale in the DGN fishery. These measures are needed to provide adequate protections for sperm whales during the 2014-2015 DGN fishing season while a permanent rule is under development. For these reasons, there is good cause to waive the requirement for delayed effectiveness. The need to implement these measures in a timely manner constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to make the rule effective immediately upon publication in the Federal Register .

Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

This rule has been determined to be not significant for purposes of Executive Order 12866. A Regulatory Impact Review was completed and is available upon request from the NMFS, Southwest Region.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: