Pursuant to the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7411-7425) (1996 Act), it is hereby directed that a referendum be conducted to ascertain whether continuance of the Christmas Tree Promotion, Research, and Information Order (7 CFR part 1214) (Order) is favored by eligible domestic producers and importers of Christmas trees. The Order is authorized under the 1996 Act.

The representative period for establishing voter eligibility for the referendum shall be the period from September 1, 2018 through March 15, 2019. Persons who domestically produced or imported more than 500 trees during the representative period and were subject to assessments during that period are eligible to vote. Persons who received an exemption from assessments pursuant to § 1214.53 for the entire representative period are ineligible to vote. The referendum will be conducted by mail and email ballot from April 22 through May 17, 2019. The Department will provide the option for ballots to be returned electronically. Further details will be provided in the ballot instructions.

Section 518 of the 1996 Act (7 U.S.C. 7417) authorizes required referenda. Under § 1214.81(a) of the Order, the Department must conduct a referendum not later than three years after assessments first begin under the order to determine whether persons subject to assessment favor continuance of the program. The Board conducted this required referendum in May 2018, passing by a narrow margin. In addition, the Order allows for a referendum to be conducted at any time as determined by the Secretary (7 CFR 1214.81(b)(5)). As such, due to the close results of the 2018 referendum, the Department is announcing the conduct of this referendum. The Department will continue the program if it is favored by a majority of producers and importers of Christmas trees voting in the referendum.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the referendum ballot has been approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0093. It has been estimated that approximately 1,200 entities would be eligible to vote in the referendum. It will take an average of 15 minutes for each voter to read the voting instructions and complete the referendum ballot.

Patricia Petrella, Deputy Director, and Heather M. Pichelman, Director, Promotion and Economics Division, Specialty Crops Program, AMS, USDA, Stop 0244, Room 1406-S, 1400 Independence Avenue SW, Washington, DC 20250-0244, are designated as the referendum agents to conduct this referendum. The referendum procedures at 7 CFR 1214.100 through 1214.108, which were issued pursuant to the 1996 Act, shall be used to conduct the referendum.

The referendum agent will distribute the ballots to be cast in the referendum and voting instructions by U.S. mail, FedEx, or through electronic mail to all known, eligible domestic producers and importers prior to the first day of the voting period. Persons who domestically produced or imported 500 or more Christmas trees during the representative period, and were subject to assessment during that period, are eligible to vote. Persons who received an exemption from assessments pursuant to § 1214.53 during the entire representative period are ineligible to vote. Any eligible producer or importer who does not receive a ballot should contact the referendum agent as soon as possible. Ballots delivered to the Department via regular U.S. mail must be postmarked by May 17, 2019. Ballots delivered to the Department via express mail or electronic mail must show proof of delivery by no later than 11:59 p.m. Eastern Time (ET) on May 17, 2019.

Pursuant to the Commodity Promotion, Research and Information Act of 1996 (7 U.S.C. 7411-7425) (Act), it is hereby directed that a referendum be conducted to ascertain whether continuance of the Order (7 CFR part 1216) is favored by producers of peanuts covered under the program. The Order is authorized under the Act.

The representative period for establishing voter eligibility for the referendum shall be the period from June 1, 2017 through May 31, 2018. Persons who produced peanuts and were subject to assessments during the representative period are eligible to vote. The referendum shall be conducted by regular U.S. mail or by electronic means from April 15 through May 3, 2019. The Department will provide the option for electronic balloting. Further details will be provided in the ballot instructions.

Section 518 of the 1996 Act (7 U.S.C. 7417) authorizes continuance referenda. Under section 1216.82 of the Order, the Department must conduct a referendum every five years or when 10 percent or more of the eligible peanut producers petition the Secretary of Agriculture to hold a referendum to determine if persons subject to assessment favor continuance of the Order. The Department would continue the Order if continuance is approved by a simple majority of the producers voting in the referendum.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the referendum ballot has been approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0093. It has been estimated that there are approximately 7,000 producers who will be eligible to vote in the referendum. It will take an average of 15 minutes for each voter to read the voting instructions and complete the referendum ballot.

Jeanette Palmer and Heather Pichelman, PED, SCP, AMS, USDA, Stop 0244, Room 1406-S, 1400 Independence Avenue SW, Washington, DC 20250-0244, are designated as the referendum agents to conduct this referendum. The referendum procedures 7 CFR 1216.100 through 1216.107, which were issued pursuant to the Act, shall be used to conduct the referendum.

The referendum agents will distribute the ballots to be cast in the referendum and voting instructions by U.S. mail or through electronic means to all known producers prior to the first day of the voting period. Persons who produced peanuts and were subject to assessments during the representative period are eligible to vote. Any eligible producer who does not receive a ballot should contact a referendum agent as soon as possible. Ballots delivered to the Department via regular U.S. mail must be postmarked by May 3, 2019. Ballots delivered to the Department via express mail or electronic means must show proof of delivery by no later than 11:59 p.m. Eastern Time (ET) on May 3, 2019.

Unless otherwise specified, the term “NOAA” refers to the Office for Coastal Management, within NOAA's National Ocean Service. The Office for Coastal Management formed in 2014 through the merger of the former Office of Ocean and Coastal Resource Management and the Coastal Services Center. Unless otherwise specified, the term “Secretary” refers to the Secretary of Commerce.

The Coastal Zone Management Act. The CZMA (16 U.S.C. 1451-1466) was enacted on October 27, 1972, to encourage coastal states, Great Lake states, and United States territories and commonwealths (collectively referred to as “coastal states” or “states”) to be proactive in managing the uses and resources of the coastal zone for their benefit and the benefit of the Nation. The CZMA recognizes a national interest in the uses and resources of the coastal zone and in the importance of balancing the competing uses of coastal resources. See 16 U.S.C. 1451. The CZMA established the National Coastal Zone Management Program, a voluntary program for states. If a state decides to participate in the program, it must develop and implement a comprehensive management program pursuant to federal requirements. See CZMA § 306(d) (16 U.S.C. 1455(d)); 15 CFR part 923. Of the thirty-five coastal states that are eligible to participate in the National Coastal Zone Management Program, thirty-four have federally-approved management programs. Alaska is currently not participating in the program.

Federal Consistency. The CZMA federal consistency provision is an important component of the National Coastal Zone Management Program and is a key incentive for states to join the Program. See CZMA § 307 (16 U.S.C. 1456) and NOAA's regulations at 15 CFR part 930. Federal consistency is the CZMA provision that federal actions (inside or outside a state's coastal zone) that have reasonably foreseeable effects on any land or water use or natural resource of the affected state's coastal zone must be consistent with the enforceable policies of the affected state's federally approved CZMA program. Se e CZMA § 307 (16 U.S.C. 1456) and 15 CFR part 930. See NOAA's federal consistency website for additional information, https://www.coast.noaa.gov/czm/consistency/ (last visited February 6, 2019).

The CZMA and NOAA's implementing regulations describe four types of federal actions for CZMA federal consistency purposes.

1. Federal agency activities and development projects (CZMA § 307(c)(1), (2); 15 CFR part 930, subpart C).

2. Federal license or permit activities (non-federal applicants) (CZMA § 307(c)(3)(A); 15 CFR part 930, subpart D).

3. Outer Continental Shelf exploration, development and production plans (similar to the procedures in subpart D) (CZMA § 307(c)(3)(B); 15 CFR part 930, subpart E).

4. Federal financial assistance to state or local agencies (CZMA § 307(d); 15 CFR part 930, subpart F).

It is important to understand that the applicable subparts of NOAA's federal consistency regulations for these four categories of federal actions (subparts C, D, E, and F) differ with regard to: Terminology; who decides whether there are coastal effects; procedural timeframes and information requirements; standards of consistency ( i.e., “fully consistent” versus “consistent to the maximum extent practicable”); state objection requirements; and the consequences of state objections. Below is a table summarizing some of the key differences between subpart C (federal agency activities), subpart D (federal license or permit activities) and subpart E (OCS plans). Subparts D and E are similar in requirements. Note that subpart F is not discussed in detail in this ANPR as it has limited, or no, connection to renewable energy or OCS oil and gas projects.

Federal Consistency Standards. In accordance with the CZMA and NOAA's regulations at 15 CFR part 930, federal license or permit activities (subpart D), and OCS exploration plans, and development and production plans (subpart E) must be fully consistent with the enforceable policies of a state's federally approved CZMA program. If the affected state objects to the proposed activity after concluding it is not fully consistent with the state's enforceable policies, the federal agency may not authorize the activity unless the Secretary of Commerce overrides the state's objection on appeal by the applicant. 16 U.S.C. 1456(c)(3).

For federal agency activities and development projects (subpart C), the “consistent to the maximum extent practicable” standard applies. When such activities are subject to federal consistency review, they shall be carried out in a manner that is consistent to the maximum extent practicable with the enforceable policies of a state's federally approved CZMA program. 16 U.S.C. 1456(c)(1)(A). NOAA defines “consistent to the maximum extent practicable” at 15 CFR 930.32, which requires that federal agencies be “fully consistent” “unless full consistency is prohibited by existing law applicable to the Federal agency.” This determination is made by the federal agency. In its 2000 and 2006 final rules, NOAA clarified how the “consistent to the maximum extent practicable” standard applies. The 2000 rule, in response to requests by Federal agencies, explained that Federal agencies can proceed over a state's objection, due to an unforeseen circumstance or emergency, or when a Federal agency asserts, based on its own administrative decision record, it is fully consistent even if the state disagrees, or the requirements of other federal law prevent full consistency. See 65 FR 77123, 77133-34 and 77142-43 (Dec. 8, 2000), and 71 FR 787, 802 (comments 5 and 6) and 809 (comment 35) (Jan. 5, 2006). These two Federal Register documents are on NOAA's website at: https://www.coast.noaa.gov/czm/consistency/media/frfinal.pdf and https://www.coast.noaa.gov/czm/consistency/media/finalrulefedregjan05_06.pdf (both last visited February 6, 2019).

Federal Consistency and the Outer Continental Shelf Lands Act (OCSLA). The CZMA is intertwined with the OCSLA's oil and gas leasing and development program. The CZMA and its implementing regulations specifically describe how the CZMA federal consistency provisions apply to OCS oil and gas leasing, exploration, and development. The OCSLA and its implementing regulations prohibit the Secretary of the Interior from permitting any activity provided in either an Exploration Plan, a Development and Production Plan, or a Development Operations and Coordination Document, unless the coastal state concurs or is conclusively presumed to concur with the CZMA consistency certification accompanying the plan. If the coastal state objects to the CZMA consistency certification, the Secretary of the Interior may still permit such activity if, on appeal by the applicant, the Secretary of Commerce finds that such activity is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security. See 16 U.S.C. 1456(c)(3)(B)(iii); s ee also 43 U.S.C. 1340(c)(2), 1351(d) and (h). (A Development Operations and Coordination Document is the equivalent of a Development and Production Plan in the Western Gulf of Mexico.) The OCSLA expressly references the relevant sections of the CZMA.

Below is a brief description of how the CZMA applies to the four primary stages of OCS oil and gas activity. The four primary OCS oil and gas stages and the applicable subpart of NOAA's regulations are: (1) National OCS Oil and Gas Leasing Program (no CZMA review); (2) OCS Oil and Gas Lease Sale (subpart C); (3) Exploration Plan (subpart E); and (4) Development and Production Plan or Development Operations and Coordination Document (subpart E). Below is also a description of the various ways in which geological and geophysical seismic surveys may be subject to state CZMA review.

National OCS Oil and Gas Leasing Program (National OCS Program). CZMA federal consistency does not apply to the National OCS Program. The Bureau of Ocean Energy Management (BOEM), with NOAA's concurrence, determined that the National OCS Program is not a “proposal for action” under NOAA's CZMA regulations as a lease sale may not happen and any future coastal effects are too speculative at the National OCS Program stage. See 71 FR 787, 792 (Jan. 5, 2006), https://www.coast.noaa.gov/czm/consistency/media/finalrulefedregjan05_06.pdf (last visited February 6, 2019).

OCS Oil and Gas Lease Sale (16 U.S.C. 1456(c)(1); 15 CFR part 930, subpart C). An OCS oil and gas lease sale is a federal agency activity under CZMA § 307(c)(1) and subpart C of NOAA's regulations. If BOEM holds a lease sale, BOEM determines which states are affected and provides those states with a consistency determination for review and concurrence, objection, or presumed concurrence if there is no response within the regulatory timeframe. If a state objects to BOEM's consistency determination, BOEM can still proceed with the lease sale if BOEM determines it is “consistent to the maximum extent practicable” with the state's coastal management program. Because OCS oil and gas lease sales are subject to subpart C of the federal consistency regulations, there is no right of appeal to the Secretary of Commerce if a state objects to BOEM's consistency determination. Rather, BOEM may decide to proceed over the state's objection and hold a lease sale under the consistent to the maximum extent practicable standard if BOEM determines the lease sale: (1) Is fully consistent with the enforceable policies of the state's management program; or (2) BOEM is legally prohibited from being fully consistent. 15 CFR 930.43(d).

Once a lease sale is granted it gives the lessee the authority to conduct on-lease ancillary activities, such as geological and geophysical (G&G) seismic surveys on the lease blocks acquired. BOEM requires the submittal of an Exploration Plan for certain on-lease ancillary activities. These on-lease activities are considered as part of a state's CZMA review during the lease sale or later during review of an Exploration Plan. A BOEM permit may be required for certain off-lease G&G surveys under 30 CFR part 551. An off-lease G&G survey is a survey that is not part of a lease sale or Exploration Plan. In these instances, states would not have the ability to review G&G surveys in a lease sale or Exploration Plan. However, as discussed further below, states may have the ability to review off-lease G&G survey activities as a federal license or permit activity in accordance with NOAA's regulations at 15 CFR part 930, subpart D.

Exploration Plan (16 U.S.C. 1456(c)(3)(B); 15 CFR part 930, subpart E). If an OCS oil and gas lessee decides to commence exploration on a lease, the lessee is required to propose an Exploration Plan to BOEM. Depending on the location of the proposed Exploration Plan, CZMA § 307(c)(3)(B) requires that the lessee/applicant submit a consistency certification to the affected state(s), through BOEM. If a state objects to a consistency certification for an Exploration Plan, BOEM cannot authorize exploration activities unless the applicant appeals the state objection to the Secretary of Commerce pursuant to 15 CFR part 930, subpart H and the Secretary overrides the state's CZMA objection. Alternatively, the state, applicant, and BOEM could reach an agreement such that the state would remove its objection, allowing BOEM to authorize exploration activities. This agreement could occur before or during an appeal.

Development and Production Plan or Development Operations and Coordination Document (16 U.S.C. 1456(c)(3)(B); 15 CFR part 930, subpart E, and 30 CFR part 550, subpart B). If a lessee completes its exploration activities and decides to extract oil and gas for production, it must provide BOEM with a Development and Production Plan or a Development Operations and Coordination Document (for the Western Gulf of Mexico). CZMA § 307(c)(3)(B) requires that the lessee/applicant submit a consistency certification to the affected state(s), through BOEM, for the Development and Production Plan or Development Operations and Coordination Document, just as it does for the Exploration Plan. Depending on the location of the development, one or more states will receive a consistency certification from the applicant, through BOEM. If a state objects to a consistency certification for a Development and Production Plan or Development Operations and Coordination Document, BOEM cannot authorize development and production unless the applicant appeals the state objection to the Secretary of Commerce pursuant to 15 CFR part 930, subpart H and the Secretary overrides the state's CZMA objection. Alternatively, the state, applicant, and BOEM could reach an agreement such that the state would remove its objection, allowing BOEM to authorize exploration activities. This agreement could occur before or during an appeal.

Geological and Geophysical Permits for Off-lease Activities (16 U.S.C. 1456(c)(3)(A); 15 CFR part 930, subpart D and 30 CFR part 551). Off-lease G&G surveys, as well as those conducted on lands under lease to a third party, require a permit from BOEM under 30 CFR part 551. Off-lease G&G surveys are surveys that are not authorized by BOEM, or reviewed by states for federal consistency, as part of a lease sale or Exploration Plan. These G&G permit applications may be subject to the CZMA federal consistency process as a federal license or permit activity pursuant to NOAA's regulations at 15 CFR part 930, subpart D. A consistency certification is required for these off-lease G&G permits if the state has, pursuant to 15 CFR 930.53, (1) listed the G&G permits in the state's NOAA-approved federal consistency list, and (2) included a geographic location description in its coastal management program. If not, then a state would need to request NOAA approval to review off-lease G&G permit applications on a case-by-case basis as an unlisted activity under 15 CFR 930.54. If a state objects to a consistency certification for a G&G permit under 30 CFR part 551, BOEM cannot authorize the activity unless the applicant appeals the state objection to the Secretary of Commerce pursuant to 15 CFR part 930, subpart H and the Secretary overrides the state's CZMA objection. Alternatively, the state, applicant, and BOEM could reach an agreement such that the state would remove its objection, allowing BOEM to authorize exploration activities. This agreement could occur before or during an appeal.

Federal Consistency Appeal Process. The CZMA appeal process is available to non-federal applicants for federal license and permit activities (subpart D), OCS Exploration, Development and Production Plans (subpart E), and federal financial assistance (subpart F). The appeal process takes 265 to 325 days to complete. Congress added this timeframe to the CZMA in the Energy Policy Act of 2005, Pub. L. 109-58, and NOAA added the timeframe to NOAA's regulations at 15 CFR part 930, subpart H in NOAA's 2006 rulemaking, 71 FR 75864. Historically, state objections to Exploration Plans or Development and Production Plans do not happen very often. As noted in NOAA's 2006 final rule:

71 FR 787, 791 (Jan 5, 2006). These numbers are still valid. The most recent Secretarial appeal of an OCS oil and gas plan was in 1999. See NOAA's CZMA appeal spreadsheet for more information on CZMA appeals at https://www.coast.noaa.gov/czm/consistency/media/appealslist.pdf (last visited February 6, 2019).

NOAA's 2006 Final Rule. NOAA revised its CZMA federal consistency regulations in 2006 to address concerns raised by the energy industry, particularly regarding OCS oil and gas, in response to the 2001 Vice President's Energy Policy Report, and the Energy Policy Act of 2005. The 2006 revision was finalized after close coordination with the Department of the Interior, the Department of Energy, and with substantial input by the energy industry and the coastal states. See NOAA's final rule published in the Federal Register , 71 FR 787 (Jan. 5, 2006), https://www.coast.noaa.gov/czm/consistency/media/finalrulefedregjan05_06.pdf (last visited February 6, 2019). NOAA's 2006 final rule removed uncertainties in various time frames in the regulations, provided an expedited and date-certain period for processing CZMA consistency appeals, and provided industry with greater transparency and predictability in the CZMA process. The CZMA Secretarial appeals process deadlines were mandated by amendments to the CZMA by the Energy Policy Act of 2005, amending 16 U.S.C. 1465 (appeals to the Secretary) and adding section 1466 (appeals relating to offshore mineral development). At that time, NOAA evaluated the rulemaking in the context of what changes could be made without statutory amendments.

In accordance with Executive Order 13795, this Advance Notice of Proposed Rulemaking seeks the public and regulated community's input on what changes could be made to NOAA's CZMA federal consistency regulations at 15 CFR part 930 to make the consistency process more efficient across all stages of OCS oil and gas projects from leasing to development or renewable energy projects. Any input should be consistent with statutory provisions regarding the CZMA review of OCS oil and gas lease sales, Exploration Plans, Development and Production Plans, Development Operations and Coordination Documents, G&G permits, and appeals to the Secretary of Commerce. NOAA recommends that anyone providing input review NOAA's 2006 final rule discussed above. NOAA notes that addressing these questions could result in a proposed rule that includes numerous regulatory modifications that could also apply to other types of federal actions and not just renewable or non-renewable energy projects.

NOAA is interested in the public and regulated community responses to the following statements.

1. What changes could be made to NOAA's federal consistency regulations at 15 CFR part 930 that could streamline federal consistency reviews and provide industry with greater predictability when making large investments in offshore renewable and non-renewable energy development?

2. NOAA is seeking comments on whether and how NOAA could achieve greater efficiency to process an appeal in less time and increase predictability in the outcome of an appeal—while continuing to meet the requirements and purposes of the CZMA—by limiting the Secretary of Commerce's review of an appeal of a state's objection to an OCS oil and gas Development and Production Plan or Development Operations and Coordination Document, to information that the Secretary of Commerce had not previously considered in an appeal of an OCS oil and gas Exploration Plan for the same lease block.

In addition, NOAA requests any comment on the types of new information that may be produced at different stages of OCS oil and gas projects to provide an indication of what information may be relevant to subsequent appeals. For example, a state may object under the CZMA to an OCS oil and gas Exploration Plan and the applicant may then appeal the objection to the Secretary of Commerce and the Secretary could override the state's objection. The applicant could then complete its exploration activities and then submit to BOEM a Development and Production Plan or Development Operations and Coordination Document and the state could again issue a CZMA objection. In this scenario, there may be a substantial amount of technical, environmental, safety, national interest, and alternative analysis information and review by BOEM, other federal agencies, the states, NOAA and Commerce for the Exploration Plan and for an appeal of a state CZMA objection to an Exploration Plan. This information may be similar or the same as that developed for an appeal of a state CZMA objection to the later Development and Production Plan or Development Operations and Coordination Document for the same lease block. Therefore, NOAA is seeking comment on whether, in such a situation, it is efficient and effective to use the Secretary's override of the Exploration Plan as a precedent and limit the Secretary's review of an appeal of a state's objection to an OCS oil and gas Development and Production Plan or Development Operations and Coordination Document to information and issues not previously considered by the Secretary when deciding an appeal regarding the OCS Exploration Plan.

3. When an applicant seeks Secretarial review of a state CZMA federal consistency objection, the CZMA requires the Secretary to collect appeal fees from the applicant. 16 U.S.C. 1456(i). The fees include an “application fee of not less than $200 for minor appeals and not less than $500 for major appeals, unless the Secretary, upon consideration of an applicant's request for a fee waiver, determines that the applicant is unable to pay the fee.” 16 U.S.C. 1456(i)(1). Under NOAA's regulations, an appeal involving a project valued in excess of $1 million is considered major. 15 CFR 930.125(c).

In addition to the application fee, the Secretary is also directed to collect such other fees as are necessary to recover the full costs of administering and processing appeals of a state CZMA federal consistency objection. 16 U.S.C. 1456(i)(2)(A) and 15 CFR 930.126. However, if the Secretary waives the application fee for an applicant, the Secretary shall waive all other fees for the applicant. 16 U.S.C. 1456(i)(2)(B).

Under the Regulatory Flexibility Act (RFA), at a proposed rule stage NOAA must determine whether the rule, if adopted, would have a significant economic impact on a substantial number of small entities. The term “small entity” includes small businesses, small organizations, and small governmental jurisdictions. State and federal agencies and private landowners are not small entities under the RFA.

NOAA has stated for past CZMA federal consistency rulemakings that the federal consistency process and appeals to the Secretary do not have a significant impact on small entities and anticipates the same finding would be reached for a proposed rule based upon this document. See e.g., 65 FR 20270, 20280-81 (Apr. 14, 2000). However, NOAA invites comment on the potential costs that could be incurred by small entities during CZMA consistency appeals if NOAA revises the federal consistency regulations to provide greater efficiency and predictability as discussed in this document.

Comments submitted to NOAA will help us determine whether to propose changes to the CZMA federal consistency regulations. Any proposed changes to the federal consistency regulations would be published in the Federal Register as a proposed rule following compliance with the Administrative Procedures Act (5 U.S.C. 553) and other relevant statutes and executive orders.

This regulatory action is significant for purposes of Executive Order 12866.

Copies of this Federal Register notice: Electronic copies are available at http://www.regulations.gov. This Federal Register notice, as well as news releases and other relevant information, also are available at OSHA's web page at http://www.osha.gov .

References and Exhibits: Documents referenced by OSHA in this RFI, other than OSHA standards and Federal Register notices, are in Docket No. OSHA-2018-0008 (powered industrial trucks; request for information). The docket is available at http://www.regulations.gov, the Federal eRulemaking Portal. For additional information on submitting items to, or accessing items in, the docket, please refer to the ADDRESSES section of this RFI. While most exhibits are available at http://www.regulations.gov, some information ( e.g., copyrighted material) is not available to download from that web page. However, all materials in the docket are available for inspection at the OSHA Docket Office.

OSHA is considering whether or not to initiate rulemaking to revise the powered industrial trucks standards for general, maritime, and construction industries (29 CFR 1910.178, 1915.120, 1917.43, 1918.65, and 1926.602(c), (d)). These regulations, promulgated in 1971 and updated in 1998, are intended to protect operators of these trucks and their coworkers. In this RFI, OSHA is seeking public comments that will inform OSHA on potential updates to the powered industrial trucks standards. The term “powered industrial truck” includes what are commonly termed forklifts, but the term also includes all fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by an electric motor or an internal combustion engine. The aim of this RFI is to seek public comment on what aspects of the powered industrial trucks standards are effective as well as those that may be outdated, inefficient, unnecessary, or overly burdensome, and how those provisions might be repealed, replaced, or modified while maintaining or improving worker safety.

OSHA's powered industrial trucks standards contain requirements for machine design and construction, locations of use, maintenance, training, and operations, among other requirements. OSHA initially adopted the powered industrial trucks standard (29 CFR 1910.178) on May 29, 1971 (36 FR 10613), pursuant to section 6(a) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 655), 1 based on the 1969 editions of the American National Standards Institute's (ANSI) Safety Standard for Powered Industrial Trucks, B56.1, and the National Fire Protection Association's (NFPA) standard for Type Designation, Areas of Use, Maintenance and Operation of Powered Industrial Trucks, NFPA 505. Since the promulgation of OSHA's powered industrial trucks standard in 1971, these national consensus standards have been updated a number of times. The most recent edition of ANSI B56.1 was issued in 2018, in conjunction with the Industrial Truck Standards Development Foundation (ITSDF) (OSHA-2018-0008-0002). The most recent edition of NFPA 505 was issued in 2018 (OSHA-2018-0008-0003). OSHA has updated the powered industrial trucks standards only once, on December 1, 1998 (63 FR 66270), to revise the requirements for operator training codified at § 1910.178(l) and to include references to § 1910.178(l) in the standards for shipyards, marine terminals, longshoring, and construction (§§ 1910.16, 1915.120, 1917.1, 1918.1, and 1926.602(d)). 2

ANSI B56.1 defines the safety requirements relating to the elements of design, operation, and maintenance of powered industrial trucks. This national consensus standard has two basic parts. The first part establishes manufacturer requirements to ensure hazards do not result from the design and construction of powered industrial trucks at the time of manufacture. This includes a variety of test methods to determine load-handling capacity, which must also be indicated through appropriate markings. When OSHA originally promulgated the powered industrial trucks standard, the agency incorporated by reference the design requirements section of ANSI B56.1-1969.

The second part of B56.1 establishes guidelines for operators of industrial trucks, including requirements for operator qualifications and training, operator safety rules, and maintenance practices. Although OSHA did not incorporate by reference the ANSI B56.1-1969 user requirements in its powered industrial trucks standard, OSHA did base some of the provisions on this part of the ANSI standard. Throughout the years, ANSI/ITSDF has added other requirements to improve the safety of industrial truck operators and other employees. Examples of additions to the user requirements in B56.1 include:

• A requirement that operator training programs cover hazards from carbon monoxide production by internal combustion engines and common initial symptoms of exposure.

• A requirement that, prior to working on engine fuel systems of liquefied petroleum (LP) gas-powered trucks with engines that will not run, users must close the LP tank and vent fuel slowly in a non-hazardous area.

• A requirement for stopping distances when descending grades. This section states that when descending a grade, required stopping distances must be greater and methods must be employed to allow for this condition. Such methods include: Reducing speed, limiting loads, and allowing for adequate clear space at the bottom of the grade.

• A requirement to consider noise exposure of personnel in the work area.

• A requirement regarding relocation of powered industrial trucks. This section states that when using lifting equipment such as elevators, cranes, ship hoisting gear, to relocate a powered industrial truck, the user shall ensure that the capacity of the hoisting equipment being used is not exceeded.

The NFPA 505 standard contains fire safety guidelines for powered industrial trucks including type designations, areas of use, conversions, maintenance, and operations. This standard is designed to mitigate potential fire and explosion hazards involving powered industrial trucks, including fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines.

When OSHA adopted the powered industrial trucks standard in 1971, there were 11 designated types of trucks. 3 NFPA has since listed an additional eight truck types: CGH, CN, CNS, DX, G/CN, G/LP, GS/CNS, and GS/LPS. 4 These are not listed in OSHA's standard. NFPA first added type designations G/LP and GS/LPS, which are both dual-fuel type trucks that operate on gasoline and/or liquefied petroleum gas. NFPA next added new truck type designation DX, which is a diesel-powered unit that is constructed to allow it to be used in atmospheres that contain specifically named flammable vapors, dust, and fibers. NFPA added a new section on compressed natural gas (CNG) that included the addition of type designations CN, CNS, G/CN, and GS/CNS, and made changes to the fuel handling and storage chapters for these trucks, as well as for the dual fuel and converted trucks. NFPA's most recent type designation is a compressed hydrogen-powered unit (CGH).

These eight type-designated units—CGH, CN, CNS, DX, G/CN, G/LP, GS/CNS, GS/LPS—have different requirements for safe operation, maintenance, and handling due to their fuel source, but they are generally the same in design and function as the 11 truck types currently listed in OSHA's standard. For instance, the chapter in NFPA 505 for fuel handling and storage prohibits over-pressurizing fuel cylinders and requires that pressure relief devices be free of plugging and maintained in good operating condition; these requirements are not reflected in OSHA's current standard.

OSHA requests information from the public on the powered industrial trucks standards to help the agency determine how to best protect employees who use powered industrial trucks and eliminate unnecessary burdens. OSHA is seeking public comments on whether and how the powered industrial trucks standards should be amended.

Statistics show that, in some instances, powered industrial trucks cause worker fatalities and injuries. Accordingly, OSHA is considering ways to maintain or improve worker safety while modernizing its standards and reducing any overly-burdensome requirements.

Data from the Bureau of Labor Statistics (BLS) (OSHA-2018-0008-0004) for the years 2011 through 2016 indicate a total of 1,357 fatalities resulting from the use of powered material hauling and transport industrial vehicles and tractors. As shown in Table 1, the annual number of fatalities ranged from 218 to 241, with an annual average of 226 fatalities. The data show that the majority of these fatalities, 1,169 (89 percent), occurred in five industry sectors: Agriculture, forestry, fishing, and hunting (788); manufacturing (126); construction (94); wholesale trade (83); and transportation and warehousing (78). Nearly all the fatalities, 1,316 (97 percent), occurred during the use of powered forklifts, order pickers, platform trucks, tractors, and power take-offs.

With respect to injury data, BLS reports that, for the three most recent years with complete results from the BLS surveillance system (2014-2016), lost-workday injuries resulting from incidents associated with powered industrial forklifts, trucks, and tractors ranged from 11,790 cases (2016) to 11,940 cases (2015) and averaged 11,857 cases. 5 Over 90 percent of cases during this three-year period involved powered industrial material hauling and transport vehicles. The remainder involved tractors and power take-offs.

OSHA's data from the Severe Injury Reports (SIRs) mirror that of BLS. The SIRs recorded 1,238 incidents from January 1, 2015, through February 28, 2017, resulting in 1,123 hospitalizations and 193 amputations. Approximately 97 percent of the 1,238 incidents involved powered forklifts, order pickers, platform trucks, pallet jacks, airport utility vehicles, and other powered industrial material hauling and transport vehicles, not elsewhere classified, while the remainder involved tractors and power take-offs. 6

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

The Annual Boyne Thunder Poker Run is a charity marine event occurring in the month of July with a route that runs from Boyne City out to Lake Michigan and back to Boyne City. This event, occurring annually for the past 15 years, includes approximately 100 participants in offshore type power vessels. Round Lake and Pine River Channel are small restricted waterways that normally have a variety of recreational users and a commercial ferry that provides service to Beaver Island. This mix of vessels in close proximity to the event warrants additional safety measures.

The legal basis for this proposed rulemaking is found at 33 U.S.C. 1233; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

The Captain of the Port Sault Sainte Marie (COTP) has determined that adding the Annual Boyne City Poker Run to the list of Special Local Regulations in the navigable waters of Round Lake and Pine River Channel in Charlevoix, MI is the most practical way to ensure the safety of the boating public.

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-day for the Special Local Regulation. Vessel traffic will be able to safely transit through the regulated area which will impact a small designated area within the COTP zone for a short duration of time. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the special local area.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule prohibits vessels from entering, transiting through, or anchoring within the regulated area without the permission of the Coast Guard Patrol Commander. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal e-Rulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacynotice.

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

I. Background

On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO 2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. 1 See 75 FR 6474 (February 9, 2010). This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NO X ). NO 2 is the component of greatest concern and is used as the indicator for the larger group of NO X. Emissions that lead to the formation of NO 2 generally also lead to the formation of other NO X . Therefore, control measures that reduce NO 2 can generally be expected to reduce population exposures to all gaseous NO X which may have the co-benefit of reducing the formation of ozone and fine particles both of which pose significant public health threats. For comprehensive information on the 2010 1-hour NO 2 NAAQS, please refer to the February 9, 2010 Federal Register notice. See 75 FR 6474.

Whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. 2 This particular type of SIP submission is commonly referred to as an “infrastructure SIP.” These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. 3 Unless otherwise noted below, EPA is following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's SIP for compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 4 EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIPs. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). EPA sometimes refers to the prong 1 and prong 2 conjointly as the “good neighbor” provision of the CAA. The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) and from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

EPA's most recent infrastructure SIP guidance, the September 13, 2013, “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” did not explicitly include criteria for how the Agency would evaluate infrastructure SIP submissions intended to address section 110(a)(2)(D)(i)(I). 5 With respect to certain pollutants, such as ozone and particulate matter (PM), EPA has addressed interstate transport in eastern states in the context of regional rulemaking actions that quantify state emission reduction obligations. 6 For NO 2 , EPA has considered available information such as current air quality, emissions data and trends, and regulatory provisions that control source emissions to determine whether emissions from one state interfere with the attainment or maintenance of the NAAQS in another state. EPA's review and proposed action on Tennessee's CAA section 110(a)(2)(D)(i)(I) interstate transport SIP revisions for the 2010 NO 2 NAAQS is informed by these considerations.

Through this proposed action, EPA is proposing to approve Tennessee's May 14, 2018, SIP revision addressing prong 1 and prong 2 requirements for the 2010 1-hour NO 2 NAAQS. 7 The State addressed CAA section 110(a)(2)(D)(i)(I) by providing information supporting its conclusion that emissions from Tennessee do not significantly contribute to nonattainment or interfere with maintenance of the 2010 1-hour NO 2 NAAQS. All other applicable infrastructure SIP requirements for Tennessee for the 2010 1-hour NO 2 NAAQS have been addressed in separate rulemakings. See 80 FR 14019 (March 18, 2015) and 82 FR 27428 (June 15, 2017).

In Tennessee's May 14, 2018, SIP revision, the State concluded that its SIP adequately addresses prongs 1 and 2 with respect to the 2010 1-hour NO 2 NAAQS. Tennessee provides the following reasons for its determination: (1) The most recent valid design values for the 1-hour NO 2 standard in Tennessee and the neighboring states of Arkansas, Georgia, Kentucky, Missouri, North Carolina, South Carolina, and Virginia are below the 2010 standard; (2) total emissions of NO X in the State have trended downward since 2008; and (3) the SIP contains state regulations that directly or indirectly control NO X emissions. EPA preliminarily agrees with the State's conclusion based on the rationale discussed below.

First, EPA notes that there are no designated nonattainment areas for the 2010 1-hour NO 2 NAAQS in Tennessee or the neighboring states. On February 17, 2012 (77 FR 9532), EPA designated the entire country as “unclassifiable/attainment” for the 2010 1-hour NO 2 NAAQS, stating that “available information does not indicate that the air quality in these areas exceeds the 2010 1-hour NO 2 NAAQS.”

Second, the 2015-2017 NO 2 design values in Tennessee and neighboring states are well below the 2010 1-hour NO 2 NAAQS standard of 100 ppb. The highest monitored 2015-2017 valid design values for the neighboring states of Arkansas, Georgia, Kentucky, Missouri, North Carolina, South Carolina, and Virginia are below the 2010 standard (at 42, 56, 49, 49, 38, 42, and 45 ppb, respectively). 8 The design values in Tennessee, and neighboring states, during this time period were 44 to 62 percent below the NAAQS. During the 2015-2017 time period, Georgia recorded the highest monitored 98th percentile concentration value in the neighboring states (61.1 ppb in 2016).

Third, total NO X emissions data provided by the State shows that NO X emissions in Tennessee decreased from 430,384 tons in 2008 to 271,383 tons in 2014, a reduction of approximately 37 percent. 9 The area, nonroad, onroad, and point sources are all considered in the total emissions data provided by the State. Onroad vehicles continue to be the largest emitters of NO X in Tennessee, emitting 131,422 tons according to the 2014 data. Despite onroad mobile sources being the primary contributors to NO X emissions, the data from Tennessee's submittal shows a 35 percent decrease in onroad mobile emissions from 2008 to 2014.

Finally, Tennessee identifies the following SIP-approved State rules that directly or indirectly control NO X emissions: Rule 1200-03-09-.01— Construction Permits (regulating the construction of new sources and the modification of existing sources); Rule 1200-03-06-.03— General Provisions and Rule 1200-03-07-.07— General Provisions and Applicability for Process Gaseous Emission Standards (both regulating gaseous emissions from non-process and process emission sources); and Rule 1200-03-13-.01— Violation Statement (providing for enforcement actions for failure to comply with Tennessee air regulations).

For all the reasons discussed above, EPA has preliminarily determined that Tennessee does not contribute significantly to nonattainment or interfere with maintenance of the 2010 1-hour NO 2 NAAQS in any other state and that Tennessee's SIP includes adequate provisions to prevent emissions sources within the State from significantly contributing to nonattainment or interfering with maintenance of this standard in any other state.

As described above, EPA is proposing to approve Tennessee's May 14, 2018, SIP revision addressing prongs 1 and 2 of CAA section 110(a)(2)(D)(i) for the 2010 1-hour NO 2 NAAQS.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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. This action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• 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 SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO 2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. 1 See 75 FR 6474 (February 9, 2010). This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NO X ). NO 2 is the component of greatest concern and is used as the indicator for the larger group of NO X . Emissions that lead to the formation of NO 2 generally also lead to the formation of other NO X . Therefore, control measures that reduce NO 2 can generally be expected to reduce population exposures to all gaseous NO X which may have the co-benefit of reducing the formation of ozone and fine particles both of which pose significant public health threats. For comprehensive information on the 2010 1-hour NO 2 NAAQS, please refer to the February 9, 2010 Federal Register notice. See 75 FR 6474.

Whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. 2 This particular type of SIP submission is commonly referred to as an “infrastructure SIP.” These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. 3 Unless otherwise noted below, EPA is following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's implementation plan for compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 4 EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIPs. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). EPA sometimes refers to the prong 1 and prong 2 conjointly as the “good neighbor” provision of the CAA. The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) and from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

EPA's most recent infrastructure SIP guidance, the September 13, 2013, “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” did not explicitly include criteria for how the Agency would evaluate infrastructure SIP submissions intended to address section 110(a)(2)(D)(i)(I). 5 With respect to certain pollutants, such as ozone and particulate matter (PM), EPA has addressed interstate transport in eastern states in the context of regional rulemaking actions that quantify state emission reduction obligations. 6 For NO 2 , EPA has considered available information from states such as current air quality, emissions data and trends, and regulatory provisions that control source emissions to determine whether emissions from one state interfere with the attainment or maintenance of the NAAQS in another state. EPA's review and proposed action on Georgia's CAA section 110(a)(2)(D)(i)(I) interstate transport SIP revision for the 2010 NO 2 NAAQS is informed by these considerations.

Through this proposed action, EPA is proposing to approve Georgia's July 24, 2018, SIP revision addressing the prong 1 and prong 2 requirements for the 2010 1-hour NO 2 NAAQS. 7 The State addressed CAA section 110(a)(2)(D)(i)(I) by providing information supporting its conclusion that emissions from Georgia do not significantly contribute to nonattainment or interfere with maintenance of the 2010 1-hour NO 2 NAAQS. All other applicable infrastructure SIP requirements for Georgia for the 2010 1-hour NO 2 NAAQS have been addressed in separate rulemakings. See 80 FR 14019 (March 18, 2015), 81 FR 63106 (September 14, 2016), and 83 FR 19637 (May 4, 2018).

In Georgia's July 24, 2018, SIP revision, the State concluded that its SIP adequately addresses prongs 1 and 2 with respect to the 2010 1-hour NO 2 NAAQS. Georgia provides the following reasons for its determination: (1) There are SIP-approved and state-only regulations that directly or indirectly control NOx emissions; (2) all areas in the United States are designated as unclassifiable/attainment for the 2010 1-hour NO 2 NAAQS; (3) monitored 1-hour NO 2 design values in Georgia and surrounding states (Alabama, Florida, North Carolina, South Carolina, and Tennessee) are below the 2010 standard;  8 and (4) point source emissions of NOx in the State have trended downward. EPA preliminarily agrees with the State's conclusion based on the rationale discussed below.

First, Georgia identifies SIP-approved portions of the following State rules that directly or indirectly control NO X emissions: Georgia Rules for Air Quality Control 391-3-1-.03— Permits; 391-3-1-.02(7)— Prevention of Significant Deterioration (PSD); 391-3-1-.02(2)(yy)— Emissions of Nitrogen Oxides from Major Sources; 391-3-1-.02(2)(jjj)— NO X Emissions from Electric Utility Steam Generating Units; 391-3-1-.02(2)(lll)— NO X Emissions From Fuel Burning Equipment ; 391-3-1- .02(2)(rrr)— NO X Emissions From Small Fuel-Burning Equipment ; and 391-3-20— Enhanced Inspection and Maintenance. In addition to the SIP-approved rules mentioned above, Georgia also identifies Rule 391-3-1-.02(sss)— Multipollutant Control for Electric Utility Steam Generating Units, a rule that is not incorporated into the SIP, as a measure that targets NO X emissions.

Second, there are no designated nonattainment areas for the 2010 1-hour NO 2 NAAQS nationwide. On February 17, 2012 (77 FR 9532), EPA designated the entire country as “unclassifiable/attainment” for the 2010 1-hour NO 2 NAAQS, stating that “available information does not indicate that the air quality in these areas exceeds the 2010 1-hour NO 2 NAAQS.”

Third, the 2015-2017 NO 2 design values in Georgia are below the 2010 1-hour NO 2 NAAQS standard of 100 ppb. The highest monitored design value in the State is 56 ppb, which is 44 percent below the standard. Additionally, the highest monitored 2015-2017 valid design values for the neighboring states of Florida, North Carolina, South Carolina, and Tennessee are below the 2010 standard (at 42, 38, 42, and 53 ppb, respectively). 9 EPA notes that the trends in NO 2 design values for the southeast indicate a 42 percent decrease in measured NO 2 concentrations from 2000-2017. 10

Fourth, emissions data provided in the SIP submittal show that NO x emissions decreased from 1990 to 2017 by approximately 58 percent. In 2017, highway vehicles were the largest contributors with 153,635 tons per year (tpy), and off-highway vehicles were second with 56,872 tpy. 11

For all the reasons discussed above, EPA has preliminarily determined that Georgia does not contribute significantly to nonattainment or interfere with maintenance of the 2010 1-hour NO 2 NAAQS in any other state and that Georgia's SIP includes adequate provisions to prevent emissions sources within the State from significantly contributing to nonattainment or interfering with maintenance of this standard in any other state.

As described above, EPA is proposing to approve Georgia's July 24, 2018, SIP revision addressing prongs 1 and 2 of CAA section 110(a)(2)(D)(i) for the 2010 1-hour NO 2 NAAQS.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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. This action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• 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 SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

On October 26, 2015 (80 FR 65292) the EPA published a rule revising the 8-hour ozone NAAQS from 0.075 parts per million (ppm) to a new, more protective level of 0.070 ppm. Whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. This particular type of SIP submission is commonly referred to as an “infrastructure SIP.”

These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), EPA believes that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. 1 Unless otherwise noted below, we are following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, EPA evaluates the submitting state's SIP for facial compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 2 The EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

On September 21, 2018, the Oregon Department of Environmental Quality (ODEQ) submitted a SIP revision to meet the 2015 ozone NAAQS infrastructure requirements. 3 The EPA is proposing to approve ODEQ's submission as meeting certain 2015 ozone NAAQS infrastructure requirements.

CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA.

State submission: Oregon's submission cites multiple Oregon air quality laws and SIP-approved regulations to address this element for the 2015 ozone NAAQS. Oregon Revised Statutes (ORS) 468A.035 General Comprehensive Plan provides authority to the ODEQ to develop a general comprehensive plan for the control or abatement of air pollution. ORS 468.020 Rules and Standards gives the Oregon Environmental Quality Commission (EQC) authority to adopt rules and standards to perform functions vested by law. ORS 468A.025 Air Purity Standards provides the EQC with authority to set air quality standards, emission standards, and emission treatment and control provisions. ORS 468A.040 Permits; Rules provides that the EQC may require permits for specific sources, type of air contaminant or specific areas of the State. The Oregon submission also cites these other SIP-approved laws and regulations:

EPA analysis: The State regulations identified above were previously approved by the EPA into the Oregon SIP and demonstrate that the Oregon SIP includes enforceable emission limits and other control measures to implement the 2015 ozone NAAQS. We recently approved updates to the Oregon ambient air quality standards in Division 202 to account for the 2015 ozone NAAQS (83 FR 24034, May 24, 2018). Oregon has no areas designated nonattainment for the 2015 ozone NAAQS. We note, however, that the EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D, title I of the CAA to be governed by the submission deadline of CAA section 110(a)(1). Regulations and other control measures for purposes of attainment planning under part D, title I of the CAA are due on a different schedule than infrastructure SIPs.

Oregon regulates emissions of ozone precursors through its SIP-approved new source review (NSR) permitting program, in addition to provisions described below. Oregon's SIP-approved NSR program, in Division 224 New Source Review, is administered through Division 216 Air Contaminant Discharge Permits. The EPA most recently approved revisions to Oregon's NSR program as meeting Federal requirements on October 10, 2017 (82 FR 47122). The program regulates new and modified stationary sources of nitrogen oxides (NO X ) and Volatile Organic Compounds (VOC) as precursors to ozone.

In addition to permitting provisions, Oregon's SIP contains numerous rules that limit emissions of NO X and VOC as precursors to ozone formation. These rules (listed above) include requirements to reduce pollutants that reduce visibility and contribute to regional haze, emission standards for VOC point sources, emission limits for hot mix asphalt plants and other industries, industrial emission management rules that apply to the Portland area, and requirements that regulate motor vehicle fuel content specifications and certification of vehicle pollution control systems. As a result, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(A) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to the EPA upon request.

State submission: The Oregon submission references ORS 468.035(a-e, m) Functions of the Department which provides authority to conduct and supervise inquiries and programs to assess and communicate air conditions and to obtain necessary resources (assistance, materials, supplies, etc.) to meet these responsibilities and ORS 468A.070 Measurement and Testing of Contamination Sources; Rules which provides the authority to establish a measurement and testing program. In addition, ORS 468A.025 Air Purity Standards; Air Quality Standards; Treatment and Control of Emissions; Rules requires controls necessary to achieve ambient air quality standards and prevent significant impairment of visibility. The submission also references Division 212 Stationary Source Testing and Monitoring regulations which sets requirements, methods, and criteria for emission monitoring and reporting.

EPA analysis: A comprehensive air quality monitoring plan, intended to meet federal requirements, was originally submitted by Oregon on December 27, 1979 (40 CFR 52.1970) and approved by the EPA on March 4, 1981 (46 FR 15136). The plan includes statutory and regulatory authority to establish and operate an air quality monitoring network, including ozone monitoring. Oregon's SIP-approved regulations at Division 212 govern stationary source testing and monitoring in accordance with Federal reference methods. Every five years, Oregon assesses the adequacy of the State monitoring network and submits that assessment to the EPA for review. In practice, Oregon operates a comprehensive monitoring network, including ozone monitoring, compiles and analyzes collected data, and submits the data to the EPA's Air Quality System on a quarterly basis. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(C) requires each State to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources, including a program to meet PSD and nonattainment NSR requirements.

State submission: The Oregon submission refers to ORS 468.090-140 Enforcement which provides the ODEQ with authority to investigate complaints, investigate and inspect sources for compliance, access records, commence enforcement procedures, and impose civil penalties. In addition, ORS 468.035 Functions of the Department, paragraphs (j) and (k), provide the ODEQ with authority to enforce Oregon air pollution laws and compel compliance with any rule, standard, order, permit or condition. The submission also cites:

EPA analysis: The EPA is proposing to find that Oregon code provisions provide the ODEQ with authority applicable to the 2015 ozone standard to enforce the air quality laws, regulations, permits, and orders promulgated pursuant to ORS Chapters 468 and 468A. The ODEQ staffs and maintains an enforcement program to ensure compliance with SIP requirements. The ODEQ Director, at the direction of the Governor, may enter a cease and desist order for polluting activities that present an imminent and substantial danger to public health (ORS 468.115). Enforcement cases may be referred to the State Attorney General's office for civil or criminal enforcement.

To generally meet the requirements of CAA section 110(a)(2)(C) for regulation of construction of new or modified stationary sources, each State is required to have PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2015 ozone NAAQS. As explained above, we are not in this action evaluating nonattainment-related provisions, including the nonattainment NSR program required by part D, title I of the CAA.

Oregon's Federally-enforceable State operating permit program, at Division 216 Air Contaminant Discharge Permits, is also the administrative permit mechanism used to implement the SIP-approved NSR program. We most recently approved revisions to the NSR program (Divisions 200, 202, 209, 212, 216, 222, 224, 225, and 268) as meeting Federal requirements at 40 CFR 51.160 through 164 (minor NSR) and 40 CFR 51.166 (PSD) on October 11, 2017 (82 FR 47122). The Oregon minor NSR and PSD rules meet current requirements for all regulated NSR pollutants. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(C) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(D)(i) addresses four separate elements, or “prongs.” CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain adequate provisions prohibiting emissions which will contribute significantly to nonattainment of the NAAQS in any other State (prong 1), and adequate provisions prohibiting emissions which will interfere with maintenance of the NAAQS by any other State (prong 2). CAA section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions prohibiting emissions which will interfere with any other State's required measures to prevent significant deterioration (PSD) of its air quality (prong 3), and adequate provisions prohibiting emissions which will interfere with any other State's required measures to protect visibility (prong 4).

CAA section 110(a)(2)(D)(ii) states SIPs must include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). CAA section 126 requires notification to neighboring States of potential impacts from a new or modified major stationary source and specifies how a State may petition the EPA when a major source or group of stationary sources in a State is thought to contribute to certain pollution problems in another State. CAA section 115 governs the process for addressing air pollutants emitted in the United States that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare in a foreign country.

State submission: The Oregon submission addresses all interstate transport requirements of the CAA. This proposed action, however, addresses only the CAA sections 110(a)(2)(D)(i)(II), and 110(a)(2)(D)(ii). We intend to address the remainder of the interstate transport requirements in a separate, future action.

To meet the provisions of the CAA sections 110(a)(2)(D)(i)(II), and 110(a)(2)(D)(ii), the Oregon submission references the State's SIP-approved NSR program, the State's SIP-approved regional haze plan and the recently SIP-approved Oregon Regional Haze Progress Report (May 17, 2018, 83 FR 22853). The Oregon submission also references Division 209 Public Participation, approved as part of the Oregon NSR program, and asserts that Oregon regulations are consistent with Federal requirements in Appendix N of 40 CFR part 50 pertaining to the notification of interstate pollution abatement.

EPA analysis: The EPA believes that the PSD sub-element of CAA section 110(a)(2)(D)(i)(II) (prong 3) is satisfied where major new and modified stationary sources in attainment and unclassifiable areas are subject to a SIP-approved PSD program. The EPA most recently approved revisions to Oregon's NSR program as meeting Federal PSD requirements on October 11, 2017 (82 FR 47122). Therefore, we are proposing to approve the Oregon SIP as meeting CAA section 110(a)(2)(D)(i)(II) prong 3 with respect to PSD for the 2015 ozone NAAQS.

The EPA believes, as noted in the 2013 Guidance, where a State's regional haze plan has been approved as meeting all current obligations, a State may rely upon those provisions in support of its demonstration that it satisfies CAA section 110(a)(2)(D)(i)(II) as it relates to visibility (prong 4). On July 5, 2011, the EPA approved portions of the Oregon regional haze plan, including the requirements for best available retrofit technology (76 FR 38997). We approved the remaining elements of the Oregon regional haze plan on August 22, 2012 (77 FR 50611). In addition, on May 17, 2018, the EPA approved the Oregon Regional Haze Progress Report and determined the existing regional haze SIP adequate to meet the State's visibility goals and requires no substantive revisions at this time (83 FR 22853). Because we approved the Oregon plan as meeting regional haze requirements, we are proposing to approve the Oregon SIP as meeting CAA section 110(a)(2)(D)(i)(II) prong 4 visibility requirements with respect to the 2015 ozone NAAQS.

The Division 209 public notice provisions in Oregon's SIP-approved NSR program require that for major NSR permit actions, Oregon must provide notice to neighboring States, among other officials and agencies. This notice requirement is consistent with CAA section 126(a). In addition, Oregon has no pending obligations under section 115 or 126(b) of the CAA. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(E) requires each State to provide (i) necessary assurances that the State will have adequate personnel, funding, and authority under State law to carry out the SIP (and is not prohibited by any provision of Federal or State law from carrying out the SIP or portion thereof), (ii) requirements that the State comply with the State board provisions under CAA section 128 and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the State has responsibility for ensuring adequate implementation of such SIP provision.

State submission: With respect to sub-element (E)(i), the Oregon submission cites ORS 468.035 Functions of Department which provides the ODEQ authority to employ personnel, purchase supplies, enter into contracts, and to receive, appropriate, and expend Federal and other funds for purposes of air pollution research and control. In addition, ORS 468.045 Functions of Director; Delegation provides the ODEQ Director with authority to hire, assign, reassign, and coordinate personnel of the department and to administer and enforce the laws of the State concerning environmental quality. The ODEQ has an intergovernmental agreement to delegate its authority to implement the requirements of the CAA in Lane County, Oregon to the Lane Regional Air Protection Agency (LRAPA). In addition, the submission cites the CAA section 105 grants received from the EPA and matched through the Oregon General Fund.

Turning to sub-element (E)(ii), the submission cites OAR 340-200-0100 Purpose, OAR 340-200-0110 Public Interest Representation, and OAR 340-200-0120 Disclosure of Potential Conflicts of Interest. The submission states that the EPA approved the listed regulatory provisions as meeting the requirements of CAA section 128 on January 22, 2003 (68 FR 2891). In addition, the submission cites LRAPA Title 12, Section 025 (recodified to LRAPA Title 13, Section 025 Conflict of Interest ), approved by the EPA on March 1, 1989 (54 FR 8538), and notes it meets CAA section 128.

With respect to sub-element (E)(iii), the submission cites ORS 468.020 Rules and Standards which requires a public hearing on any proposed rule or standard prior to adoption. ORS 468.035(c) Functions of Department provides the ODEQ authority to advise, consult, and cooperate with other States, State and Federal agencies, or political subdivisions on all air quality control matters. ORS 468A.010 Policy calls for a coordinated Statewide program of air quality control with responsibility allocated between the State and the units of local government. ORS 468A.100-180 Regional Air Quality Control Authorities describes the establishment, role and function of regional air quality control authorities. State regulations in Division 200 specify LRAPA has authority in Lane County, defines the term Regional Agency and describes inclusion of LRAPA's actions into the SIP. Division 204 includes designation of control areas within Lane County. Division 216 Air Contaminant Discharge Permits includes permitting authority for LRAPA.

EPA analysis: We are proposing to find that the above-referenced provisions provide Oregon with adequate authority to carry out SIP obligations with respect to the 2015 ozone NAAQS as required by CAA section 110(a)(2)(E)(i). We are also proposing to approve the Oregon SIP as meeting CAA section 110(a)(2)(E)(ii) because we previously approved the SIP for purposes of CAA section 128. On January 22, 2003, we approved OAR 340-200-0100 through OAR 340-200-0120 as meeting CAA section 128 (68 FR 2891). In addition, we approved LRAPA Title 12, Section 025 (recodified at LRAPA Title 13, section 025) as meeting CAA section 128 on March 1, 1989 (54 FR 8538).

We are proposing to find that Oregon has provided necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the State has responsibility for ensuring adequate implementation of the SIP as required by CAA section 110(a)(2)(E)(iii). Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA sections 110(a)(2)(E) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(F) requires (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to the CAA, which reports shall be available at reasonable times for public inspection.

State submission: The Oregon submission refers to the following statutory and regulatory provisions for source emissions monitoring, reporting, and correlation with emission limits or standards:

EPA analysis: The Oregon statutory provisions listed above provide authority to establish a program for measurement and testing of sources, including requirements for sampling and testing with respect to the 2015 ozone NAAQS. The Oregon regulations cited above require facilities to monitor and report emissions, including requirements for monitoring methods and design, and monitoring and quality improvement plans. Oregon's stationary source reporting requirements include maintaining written records to demonstrate compliance with emission rules, limitations, or control measures, and requirements for reporting and recordkeeping. Information is made available to the public through public processes outlined at OAR 340-209 Public Participation.

Oregon submits emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. Oregon submits a comprehensive emission inventory every three years and reports emissions for certain larger sources annually through the EPA's online Emissions Inventory System. Oregon reports emissions data for the six criteria pollutants and voluntarily reports emissions of hazardous air pollutants. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the public through the website https://www.epa.gov/air-emissions-inventories.

Based on the analysis above, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(G) requires States to provide for authority to address activities causing imminent and substantial endangerment to public health, including adequate contingency plans to implement the emergency episode provisions in their SIPs.

State submission: The Oregon submission cites ORS 468-115 Enforcement in Cases of Emergency which authorizes the ODEQ Director, at the direction of the Governor, to enter a cease and desist order for polluting activities that present an imminent and substantial danger to public health. In addition, OAR 340-206 Air Pollution Emergencies authorizes the ODEQ Director to declare an air pollution alert or warning, or to issue an advisory to notify the public. OAR 340-214 Stationary Source Reporting Requirements governs reporting of emergencies and excess emissions and reporting requirements.

EPA analysis: Section 303 of the CAA provides authority to the EPA Administrator to restrain any source from causing or contribution to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” We find that ORS 468-115 Enforcement in Cases of Emergency provides emergency order authority comparable to CAA section 303.

We recently approved revisions to the Oregon air pollution emergency rules at OAR 340-206 Air Pollution Emergencies on October 11, 2017 (82 FR 47122). Oregon's rules are consistent with Federal emergency episode requirements for ozone (prevention of air pollution emergency episodes, 40 CFR part 51 subpart H; sections 51.150 through 51.153). Accordingly, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(H) requires that SIPs provide for revision of a State plan (i) from time to time as may be necessary to take account of revisions of a national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining the standard, and (ii), except as provided in paragraph 110(a)(3)(C), whenever the Administrator finds that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under the CAA.

State submission: The Oregon submission refers to ORS 468.020 Rules and Standards which requires public notice on any proposed rule or standard prior to adoption, and ORS 468A.035 “General Comprehensive Plan” which requires the ODEQ to develop a general comprehensive plan for the control or abatement of air pollution. The submission also refers to OAR 340-200-0040 State of Oregon Clean Air Act Implementation Plan which provides for revisions to the Oregon SIP and submission of revisions to the EPA, including standards submitted by a regional authority and adopted verbatim into State rules.

EPA analysis: As cited above, the Oregon SIP provides for revisions, and in practice, Oregon regularly submits SIP revisions to the EPA. On October 11, 2017, the EPA approved many revisions to the Oregon SIP (82 FR 47122). Other recent EPA actions on revisions to the Oregon SIP include but are not limited to: May 24, 2018 (83 FR 24034); May 17, 2018 (83 FR 22853); February 8, 2018 (83 FR 5537); October 21, 2016 (81 FR 72714); July 20, 2016 (81 FR 47029); June 6, 2016 (81 FR 36176); May 16, 2018 (81 FR 30181). Accordingly, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(H) for the 2015 ozone NAAQS.

There are two elements identified in CAA section 110(a)(2) not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are due on nonattainment area plan schedules pursuant to section 172 and the various pollutant-specific subparts 2 through 5 of part D. These are submissions required by: (i) CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA section 110(a)(2)(I).

CAA section 110(a)(2)(J) requires States to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to CAA section 121. CAA section 110(a)(2)(J) further requires States to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Lastly, CAA section 110(a)(2)(J) requires States to meet applicable requirements of part C, title I of the CAA related to prevention of significant deterioration and visibility protection.

State submission: The Oregon submission references specific laws and regulations relating to consultation, public notification, and PSD:

EPA analysis: The Oregon SIP includes specific provisions for consulting with local governments and Federal Land Managers as specified in CAA section 121, including the Oregon rules for PSD permitting. The EPA most recently approved revisions to the Oregon NSR program, which provides opportunity and procedures for public comment and notice to appropriate Federal, State and local agencies, on October 11, 2017 (82 FR 47122). In addition, we approved the Oregon rules that define transportation conformity consultation on October 4, 2012 (77 FR 60627) and regional haze interagency planning on July 5, 2011 (76 FR 38997).

In practice, the ODEQ routinely coordinates with local governments, States, Federal Land Managers and other stakeholders on air quality issues including transportation conformity and regional haze, and provides notice to appropriate agencies related to permitting actions. Oregon participates in regional planning processes including the Western Regional Air Partnership, which is a voluntary partnership of States, Tribes, Federal Land Managers, local air agencies and the EPA, whose purpose is to understand current and evolving regional air quality issues in the West. Based on the provisions above, we are proposing to find that the Oregon SIP meets the requirements of CAA section 110(a)(2)(J) for consultation with government officials for the 2015 ozone NAAQS.

Section 110(a)(2)(J) also requires States to notify the public if ambient air quality standards are exceeded in an area. States must advise the public of the health hazards associated with air pollution and what can be done to prevent exceedances. The EPA calculates an air quality index for five major air pollutants regulated by the CAA: Ground-level ozone, particulate matter, carbon monoxide, sulfur dioxide, and nitrogen dioxide. This air quality index (AQI) provides daily information to the public on air quality. Oregon actively participates and submits information to the EPA's AIRNOW and Enviroflash Air Quality Alert programs which provide information to the public on local air quality. Oregon also provides the AQI to the public at http://www.deq.state.or.us/aqi/. Therefore, we are proposing to find that the Oregon SIP meets the requirements of CAA section 110(a)(2)(J) for public notification for the 2015 ozone NAAQS.

Turning to the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C, title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C) and permitting. The EPA most recently approved revisions to Oregon's PSD program on October 11, 2017 (82 FR 47122), updating the program for current Federal requirements. Therefore, we are proposing to approve the Oregon SIP as meeting the requirements of CAA 110(a)(2)(J) with respect to PSD for the 2015 NAAQS.

With respect to visibility protection under element (J), the EPA recognizes that States are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, we find that there is no new applicable requirement relating to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective.

Based on the above analysis, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

State submission: The Oregon submission refers to ORS 468-020 Rules and Standards which requires public hearing on any proposed rule or standard prior to adoption, and ORS 468.035 Functions of Department which provides the ODEQ authority to conduct studies and investigations to determine air quality. The submission also references OAR 340-225 Air Quality Analysis Requirements which includes modeling requirements for analysis and demonstration of compliance with standards and increments in specified areas.

In addition, on December 11, 2018, Oregon submitted OAR 340-200-0035 Reference Materials as a related rule amendment associated with ODEQ's Cleaner Air Oregon program and rule submission. 4 Specifically, OAR 340-200-0035(1) was revised to incorporate the Code of Federal Regulations, July 1, 2018 edition, as the updated reference to be used throughout their rule.

EPA analysis: The EPA previously approved OAR 340-225 Air Quality Analysis Requirements on October 11, 2017 (82 FR 47122). These rules specify that modeled estimates of ambient concentrations be based on 40 CFR part 51, appendix W (Appendix W) (Guidelines on Air Quality Models). Oregon's SIP requires modeled estimates of ambient concentrations be based on the current version of Appendix W, consistent with the EPA's implementing regulations in 40 CFR part 51.

On December 11, 2018, the ODEQ submitted revised OAR 340-200-0035 Reference Materials as part of its Cleaner Air Oregon SIP submission. Specifically, the submission of OAR 340-200-0035(1) incorporates Appendix W, as of July 1, 2018 and therefore captures the EPA's recent changes to the Federal Guidelines on Air Quality Models codified in 40 CFR part 51, appendix W (January 17, 2017, 82 FR 5182). Any change or substitution from models specified in Appendix W is subject to notice and opportunity for public comment and must receive prior written approval from the ODEQ and the EPA.

Based on the above information, we are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(K) for the 2015 ozone NAAQS. We are also proposing to approve the revised OAR 340-200-0035(1) Reference Materials.

CAA section 110(a)(2)(L) directs SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit.

State submission: The Oregon submission refers to ORS 468.065 Issuance of Permits: Content; Fees; Use which provides the EQC authority to establish a schedule of fees for permits based on the costs of filing and investigating applications, issuing or denying permits, carrying out title V requirements and determining compliance. ORS 468A.040 Permits; Rules provides that the EQC may require permits for air contamination sources, type of air contaminant, or specific areas of the State. The submission also references OAR 340-216 Air Contaminant Discharge Permits which requires payment of permit fees based on a specified table of sources and fee schedule.

EPA analysis: On September 28, 1995, the EPA fully-approved Oregon's title V operating permit program (60 FR 50106). While Oregon's title V program is not formally approved into the SIP, it is a mechanism the State can use to ensure the ODEQ has sufficient resources to support the air program, consistent with the requirements of the SIP. Before the EPA can grant full approval, a State must demonstrate the ability to collect adequate fees. The Oregon title V program included a demonstration that fees would be adequate, and that the State would collect fees from title V sources above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). In addition, we note that Oregon SIP-approved regulations require fees for purposes of major and minor NSR permitting, as specified in OAR 340-216-0090 Sources Subject to ADCP and Fees, OAR 340-216-8010 Table 1—Activities and Sources, and OAR 340-216-8020 Table 2—Air Contaminant Discharge Permits (fee schedule). Therefore, we are proposing to conclude that Oregon has satisfied the requirements of CAA section 110(a)(2)(L) for the ozone NAAQS.

CAA section 110(a)(2)(M) requires States to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

State submission: The Oregon submission refers to the following laws and regulations:

EPA analysis: The regulations cited by Oregon were previously approved on December 27, 2011 (76 FR 80747) and provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. We are proposing to approve the Oregon SIP as meeting the requirements of CAA section 110(a)(2)(M) for the 2015 ozone NAAQS.

The EPA is proposing to find the Oregon SIP meets the following CAA section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). This proposed action addresses only the interstate transport requirements of CAA sections 110(a)(2)(D)(i)(II), and 110(a)(2)(D)(ii). We intend to address the remainder of the interstate transport requirements in a separate, future action. In addition, we are also proposing to approve into the Oregon SIP, and incorporate by reference at 40 CFR part 52, subpart MM, a revision to Oregon's Administrative Rule 340-200-0035(1) Reference Materials submitted as part of the Cleaner Air Oregon SIP on December 11, 2018.

In this document, we are proposing to include in a final rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are proposing to incorporate by reference the provisions described above in Section V. Proposed Action. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and in hard copy at the appropriate EPA office (see the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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 proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

On January 31, 2008, the State of North Carolina, through NCDENR, 1 submitted changes to the North Carolina SIP for EPA approval. EPA is proposing to approve changes to the following regulations under 15A North Carolina Administrative Code (NCAC) 02D, Section .0519, Control of Nitrogen Dioxide and Nitrogen Oxides Emissions; Section .0540, Particulates From Fugitive Non-Process Dust Emissions; and Section .1907, Multiple Violations Arising From a Single Episode. 2 These changes are a part of North Carolina's strategy to attain and maintain the NAAQS and are being proposed for approval pursuant to section 110 of the CAA. EPA has taken, will take, or, for various reasons, will not take separate action on all other changes submitted on January 31, 2008. 3

The revision that is the subject of this proposed rulemaking makes changes to emission control standard regulations under Subchapter 2D of the North Carolina SIP. These changes revise the applicability of nitrogen dioxide (NO 2 ) and nitrogen oxides emissions standards to nitric acid plants, amend definitions and expand the applicability of provisions related to fugitive dust emissions, and add a new open burning rule for multiple violations that can occur from a single open burning event. The changes either do not interfere with attainment and maintenance of the NAAQS or they have the effect of strengthening the North Carolina SIP. Detailed descriptions of the changes are below:

1. Section .0519, Control of Nitrogen Dioxide and Nitrogen Oxides Emissions is amended by removing the provision to limit NO 2 emissions from nitric acid manufacturing plants. This regulation covers existing nitric acid manufacturing plants only, and the provision limiting NO 2 emissions from sulfuric acid manufacturing plants remains unchanged. The provision limiting NO 2 emissions from existing nitric acid manufacturing plants is removed because at the time of the regulations changes there were no nitric acid plants in the State (nor are there any currently operating in the State). Section .0519 is also amended by adding a provision clarifying that boilers subject to emission standards under regulations under Subchapter 2D of the North Carolina SIP, Sections .0524, New Source Performance Standards or .1418, New Generating Units, Large Boilers and Internal Combustion Engines, must meet the requirements of those regulations instead of the requirements in Section .0519. To demonstrate that this change does not interfere with the maintenance and attainment of the NAAQS, North Carolina submitted a noninterference demonstration supporting this change to its SIP on April 11, 2017. 4 North Carolina confirmed in its noninterference demonstration that there are currently no nitric acid plants operating in the State, and any new nitric acid plants with affected boilers or engines will be required to comply with the New Source Performance Standards or new generating units, large boilers and internal combustion engines Sections at .0524 and .1418 that are more stringent than the standards being removed. EPA is proposing to find that the rationale in North Carolina's noninterference demonstration sufficiently establishes that the revisions to Section .0519 will not interfere with attainment and maintenance of the NAAQS pursuant to CAA section 110(l). 5

2. Section .0540, Particulates From Fugitive Non-Process Dust Emissions is amended to make the Section applicable to all fugitive dust emissions instead of only fugitive non-process dust emissions. Section .0540 requires that the owner or operator of a facility shall not cause or allow fugitive dust emissions to cause or contribute to substantive complaints or visible emissions in excess of prescribed levels. Preliminarily, EPA views the expanded applicability of Section .0540 as SIP strengthening. To effectuate this expanded applicability, the substitution of the term “fugitive non-process dust emissions” with “fugitive dust emissions” has been made throughout the Section to reflect this change. Other changes to this regulation are as follows:

• The title has been changed from “ Particulates From Fugitive Non-Process Dust Emissions” to “ Particulates From Fugitive Dust Emission Sources;”

• The term “fugitive non-process dust emissions” has been modified to eliminate “non-process,” and the corresponding definition has been modified;

• The terms “excess fugitive dust emissions,” “production of crops,” and “public parking,” along with definitions thereof, have been added, and the definitions have been renumbered to reflect these additions;

• A provision clearly identifying certain activities that are excluded from the regulation's expanded applicability has been added under paragraph (b). These activities include: Abrasive blasting covered under Subchapter 2D Section .0541; cotton ginning operations covered under Subchapter 2D Section .0542; non-production military base operations; land disturbing activities; and public roads, public parking, timber harvesting, or production of crops. As a preliminary matter, EPA believes the exclusion of these activities from the expanded applicability of .0540 does not result in the North Carolina SIP being less stringent. This is because, in the current North Carolina SIP, these activities are already not subject to the requirements of Section .0540 due to the fact that applicability of the current SIP-approved regulation is limited to non-process fugitive dust emissions from only four specified source categories and the activities now proposed for explicit exclusion in the new version of the regulation were effectively excluded under the old regulation.

• The requirements related to substantive complaints regarding fugitive dust emissions from facilities have been revised to provide clarity to the requirements that an owner or operator must meet in order to comply with the regulation. The regulation is amended by adding an objective method (reference method 22) for determining opacity at the property boundary to assist inspectors in application of the regulation. The regulation is also amended to include the processes that need to be followed when excess fugitive emissions substantive complaints are received.

As noted above, the current SIP-approved version of Section .0540 applies to only four source categories that reference regulation Section .0540 regarding control of non-process fugitive dust emissions: Section .0506, Hot Mix Asphalt Plants; Section .0509, Mica or Feldspar Processing Plants; Section .0510, Sand, Gravel, or Crushed Stone Operations; and Section .0511, Light Weight Aggregate Processes. The amendments to the regulation now expand its applicability to require sources with no permit, and that are not subject to one of the aforementioned four categories, to abate fugitive dust that is due to poor collection and/or control systems or non-process fugitive emissions. The focus of the regulation is no longer limited to non-process fugitive emissions, and the amendments eliminate any differentiation between fugitive non-process and fugitive process emissions.

The other major change to the regulation includes the addition of reference method 22 for visible emissions determination. Compliance with the regulation was previously determined by the presence of physical evidence to verify a complaint ( i.e., dust that must be attributed solely to a source). The addition of reference method 22 allows an inspector to determine compliance based on any opacity at the property boundary that occurs more than six minutes in an hour and includes all fugitive dust. The amendments also include the processes that need to be followed when excess fugitive emissions or two (or more) substantive complaints are received. The amendment requires immediate abatement measures for identified fugitive dust emission sources within 30 days and permanent plans for fugitive dust abatement within 90 days (60 days from the first report).

EPA has preliminarily determined that the changes to Section .0540 have the effect of strengthening the SIP by covering both process and non-process fugitive dust from facilities subject to an emission standard or a permit, whereas the current SIP-approved version of the regulation applies only to non-process fugitive dust from four source categories. EPA also believes, as a preliminary matter, that the amendments related to the specified exclusions do not make the SIP less stringent because the excluded activities were already effectively excluded under the old regulation. The changes also provide clarity to definitions, exclusions, and the requirements applicable to substantive complaints. For the reasons noted above, EPA is proposing approval of the changes to this regulation and proposing to find that these amendments to Section .0540 and the revisions to the SIP satisfy CAA section 110(l) and do not interfere with attainment and maintenance of the NAAQS or any other applicable requirement of the Act.

3. Section .1907, Multiple Violations Arising From a Single Episode is a new open burning regulation being added to the North Carolina SIP. North Carolina added this provision to allow assessment of multiple civil penalties with respect to a single open burning event because multiple violations may occur during a single episode. EPA believes, as a preliminary matter, that this new regulation is SIP-strengthening and on this basis EPA is proposing approval of North Carolina's request to add this regulation to its SIP.

In this document, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the North Carolina regulations under Subchapter 2D Air Pollution Control Requirements, Section .0519, Control of Nitrogen Dioxide and Nitrogen Oxides Emissions; Section .0540, Particulates From Fugitive Dust Emission Sources; and Section .1907, Multiple Violations Arising from a Single Episode, which had a state effective date of July 1, 2007. These changes are proposed to revise the applicability of NO 2 and nitrogen oxides emissions standards to nitric acid plants, amend definitions and the applicability of provisions related to fugitive dust emissions, and add a new open burning rule for multiple violations that can occur from a single open burning event. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

For the reasons described above, EPA is proposing to approve the aforementioned changes to the North Carolina SIP submitted by the State of North Carolina on January 31, 2008, pursuant to section 110 because these changes are consistent with 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. See 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. This action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• 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 SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

Submission of Comments: All submissions received must include the Agency file code CMS-9921-NC for this notice.

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments.

On October 12, 2017, President Trump issued Executive Order 13813, “Promoting Healthcare Choice and Competition Across the United States,” which states the policy of the Administration will be “to the extent consistent with law, to facilitate the purchase of insurance across State lines and the development and operation of a healthcare system that provides high-quality care at affordable prices for the American people.”  1 The Executive Order reflects the Administration's intention to put downward pressure on premiums by providing more meaningful choices for consumers and increasing competition. The Department of Health and Human Services (HHS) intends to work with states to innovate within the health insurance market by considering additional mechanisms for the purchase of individual health insurance coverage that are less burdened by regulatory requirements and will therefore simplify operations and lower costs for health insurance issuers, with the ultimate goal of lowering prices for coverage and increasing options for United States consumers.

Executive Order 13813 further directs the Secretary of HHS, in consultation with the Secretaries of the Treasury, Labor, and the Federal Trade Commission, within 180 days from the date of the Executive Order, and every 2 years thereafter, to provide a report to the President that details the extent to which existing state and federal laws, regulations, guidance, requirements, and policies fail to conform to the policies set forth in section 1 of the Executive Order, including the facilitation of the purchase of insurance across state lines, and identifies actions that states or the federal government could take in furtherance of the policies set forth in section 1 of the Executive Order. Comments provided in response to this Request for Information (RFI) may help to inform future reports.

While there is no federal law that generally prohibits the sale of health insurance coverage across state lines, the McCarran-Ferguson Act of 1945  2 establishes states as the primary regulators of insurance and declares that a federal law cannot preempt any state law that regulates the business of insurance, or that imposes a fee or tax upon such business, unless such federal law specifically relates to the business of insurance. While several mechanisms to facilitate the sale of individual health insurance coverage across state lines exist, such as Interstate Health Compacts enacted through state legislation and the allowance of the sale of insurance from out-of-state insurers by a state, this RFI primarily explores options related to Health Care Choice Compacts related to section 1333 of the Patient Protection and Affordable Care Act (PPACA) (Pub. L. 111-148) since section 1333 provides a specific role for the federal government.

Section 1333 of the PPACA provides for the establishment of a regulatory framework  3 that allows two or more states to enter into a Health Care Choice Compact. For plan years beginning on or after January 1, 2016, under a Health Care Choice Compact, a health insurance issuer could offer one or more qualified health plans (QHPs)  4 in the individual health insurance market in any state included in the compact. The QHP generally would only be subject to the laws and regulations of the state in which the health insurance coverage was written or issued. 5 Section 1333 of the PPACA does not address the sale of group health insurance coverage across state lines or the sale of individual market policies that are not QHPs. In order to enter into a Health Care Choice Compact, a state must pass legislation, after March 23, 2010, specifically authorizing it to do so. To date, no states have passed legislation authorizing the state to enter into a Health Care Choice Compact as contemplated by section 1333 of the PPACA or created a Health Care Choice Compact, and no issuer has offered health insurance coverage through a Health Care Choice Compact. However, four states (Georgia, Maine, Oklahoma, and Wyoming) have passed laws authorizing the sale of health insurance coverage across state lines. Under Georgia law, 6 insurers are authorized to offer individual accident and sickness insurance policies in Georgia that have been approved for issuance in other states, provided specified minimum criteria are met. Under Maine law, 7 domestic insurers or licensed health maintenance organizations that are authorized to transact individual health insurance in Maine are permitted to offer for sale in Maine an individual health insurance policy duly authorized for sale in Connecticut, Massachusetts, New Hampshire, Rhode Island, or Vermont by a parent or corporate affiliate, provided specified minimum criteria are met. Oklahoma law  8 allows issuers authorized to engage in the business of insurance in a state which has a legislatively approved compact with Oklahoma, and not so authorized in Oklahoma, to issue individual accident and health insurance policies in Oklahoma, provided specified minimum criteria are met. Wyoming law  9 allows insurers authorized to engage in the business of insurance in a state identified by the Commissioner as having insurance laws sufficiently consistent with Wyoming laws, and so authorized in Wyoming, to issue in Wyoming selected comprehensive individual medical and surgical insurance policies that have been approved in other such states, provided specified minimum criteria are met.

Three other states have passed laws to study the feasibility of selling insurance across state lines. 10 Since 2010, bills that would permit the purchase of health insurance coverage across state lines have been filed but not passed in an additional 11 states. 11

Separately, “Interstate Health Compacts,” also known as “Freedom Health Compacts,” are another type of compact, advocated by Competitive Governance Action and the American Legislative Exchange Council, which could provide broader interstate health markets than the Health Care Choice Compacts under section 1333 of the PPACA. Interstate Health Compacts include a provision allowing for the suspension of the operation of all federal laws, rules, regulations, and orders regarding health care that are inconsistent with the laws and regulations adopted by the member state pursuant to the compact and aim to secure federal funding that is not conditional on any action of the member states. 12 The creation of any such Interstate Health Compact requires formal Congressional approval pursuant to Article 1, Section 10, of the United States Constitution. As of January 2017, at least nine states  13 have enacted Interstate Health Compacts; however, no requests for Congressional approval of the Interstate Health Compacts have been submitted.

No health insurance issuers or consumers appear to have access to the increased flexibility that could be afforded by state laws related to the sale of health insurance coverage across state lines.

HHS solicits public comments about actions that could further facilitate selling individual health insurance coverage across state lines. Comments are requested in response to the questions below with respect to individual health insurance coverage. The Administration recognizes and strongly supports the fundamental role states play in regulating insurance. Providing states with flexibility to address the unique needs of their health insurance markets is a key component of achieving the goals stated in the Executive Order. This RFI is not intended to inform policy which will preempt state law or otherwise impede the role states play as the primary regulators of insurance.

1. What are the practical advantages and disadvantages of allowing health insurance issuers to sell individual health insurance coverage across state lines through Health Care Choice Compacts?

2. What actions could the federal government undertake to facilitate the state implementation of the sale of individual health insurance coverage across state lines pursuant to section 1333 of the PPACA?

3. While four states have passed laws specifically authorizing the sale of individual health insurance across state lines, we understand that no action to implement these laws has been taken. Additionally, nine states have enacted laws authorizing the creation of Interstate Health Compacts, yet we understand that no such Compact has been created. Why have states not taken advantage of these opportunities? Are there federal or state statutory and/or regulatory barriers that prevent states from doing so?

4. Should HHS promote the sale of QHPs through Health Care Choice Compacts across state lines and why?

5. How would the sale of individual health insurance coverage across state lines through Health Care Choice Compacts impact access to QHPs? We are particularly interested in the impact on counties that do not have many options for QHP coverage in their current markets and whether the sale of health insurance coverage across state lines would increase or decrease the number of issuers offering QHPs in these counties.

6. Are there mechanisms, such as memoranda of understanding or other contractual arrangements, other than Health Care Choice Compacts established pursuant to section 1333 of the PPACA, that states could utilize to facilitate the sale of individual health insurance coverage across state lines? Would selling health insurance coverage such as short-term, limited-duration insurance; state-regulated farm bureau coverage; or insurance licensed by a state as defined under section 2791(d)(14) of the Public Health Service Act (PHS Act) (to include each of the several states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands)  14 to individuals pursuant to such state agreements help facilitate the sale of individual health insurance coverage across state lines? Consider whether the type of coverage is relevant to, or would impact, the form or nature of the agreements utilized by states.

1. Is the structure of Health Care Choice Compacts contemplated by section 1333 of the PPACA effective in facilitating the sale of individual health insurance coverage across state lines? To date, no states have passed laws specifically authorizing the state to enter into a Health Care Choice Compact under section 1333 of the PPACA. Why have states not enacted such laws? Are there any necessary revisions to section to 1333 of the PPACA that would facilitate the sale of health insurance coverage across state lines?

2. How difficult is it for small and/or regional health insurance issuers to develop provider networks in multiple states that could be used for health insurance coverage sold pursuant to Health Care Choice Compacts, and what are the causes of any such difficulties? For individual market health insurance issuers that already have a national provider network, what are the challenges for selling individual health insurance coverage across state lines through Health Care Choice Compacts? In what ways could the federal government facilitate expanding and strengthening provider networks?

3. How would states allowing health insurance issuers to sell individual health insurance coverage across state lines through Health Care Choice Compacts (if the health insurance coverage only covers health benefits in accordance with federal law and the laws of the state where the coverage is written) impact access to and the utilization of medical services?

4. What new and existing consumer protections are needed to protect policyholders that reside in one state but purchase individual health insurance coverage from a health insurance issuer in another state pursuant to a Health Care Choice Compact? How would allowing health insurance issuers to sell individual health insurance coverage across state lines impact the ability of state regulators to assist consumers or impact the ability of state courts to resolve legal disputes when the policyholder resides in a state other than that in which the policy was written, pursuant to a Health Care Choice Compact?

5. To what extent, if any, would the sale of individual health insurance coverage across state lines pursuant to a Health Care Choice Compact positively or negatively impact the following populations: Persons with pre-existing conditions; persons with disabilities; persons with chronic physical health conditions; expectant mothers; newborns; American Indians and Alaska Natives and tribal entities; veterans; and persons with behavioral health conditions, including both mental health and substance use disorder conditions?

6. In general, which statutes or regulations of the issuing state should apply to an individual market policy sold in another state pursuant to a Health Care Choice Compact, and which statutes or regulations, if any, of the state in which the policy is sold should apply? To what extent should policies being sold in another state pursuant to a Health Care Choice Compact be required to cover the state-required benefits of that state, and to what extent should such policies be required to cover the state-required benefits of the issuing state?

1. What policies, including how premiums and rates are established and reviewed, and how risk is pooled, should be in place with respect to rating and pricing of health insurance coverage sold across state lines pursuant to Health Care Choice Compacts?

2. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on health insurance coverage premiums for purchasers of insurance across state lines and for policyholders purchasing in-state insurance in the state where the across-state-lines purchasers live or in the state in which the issuer is located? Would the impact be different for policyholders in different states?

3. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on policyholders' out-of-pocket expenses? Would the impact be different for different policyholders?

4. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compact have on a health insurance issuer's operating costs?

5. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on market participation in each state?

6. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on competition and the viability of health insurance issuers that elect not to sell health insurance coverage across state lines?

7. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on health care cost growth and medical inflation?

8. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on consolidation of health insurance issuers?

9. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on the market risk pools of the states where the health insurance issuer is domiciled and where the policyholder resides?

10. What impact would the sale of health insurance coverage across state lines pursuant to Health Care Choice Compacts have on the size and composition of the uninsured population?

This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. This RFI constitutes a general solicitation of comments. In accordance with the implementing regulations of the Paperwork Reduction Act (PRA) at 5 CFR 1320.3(h)(4), information subject to the PRA does not generally include “facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration of the comment.” Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ).

Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, in the event we issue a subsequent document, we will respond to the comments in the preamble to that document.