Under the USGSA (7 U.S.C. 71 et seq ), each OA in the United States is assigned a specific geographic area in which it performs all official grain inspection and weighing services for customers within that geographic area (7 U.S.C. 79(f)(2)(A)). This ensures effective and efficient delivery of official services to all customers within the OA's designated territory and enhances the orderly marketing of grain. The USGSA also provides that customers may obtain services from other OAs under certain circumstances. For instance, OAs may cross geographic boundaries to provide services to requesting customers if: (1) The designated OA for the customer's geographic area is unable to provide necessary services on a timely basis; (2) the customer requires probe inspection on barge-lot basis; or (3) the OA for the customer's geographic area agrees in writing with the adjacent official agency to waive the current geographic restriction at the customer's request (7 U.S.C. 79(f)(2)(B)(i),(iii), and (iv)). These allowances are considered exceptions to the USGSA's standard requirements regarding the use of designated OAs to perform inspection services within specified geographic areas. Exceptions must be approved on a case-by-case basis by AMS's Federal Grain Inspection Service (FGIS), which administers the regulations under the USGSA. 1 The regulations at 7 CFR part 800 provide the limitations for use of these exceptions.

A notable exception that has been implemented in the past is known as the “nonuse of service” exception. In that exception, a customer who had not obtained inspection services from the designated OA in the customer's geographic area for a specified length of time could obtain services from another OA. At times, the regulations required customers to have not used their designated OA for at least 90 consecutive days; at other times the regulations specified a 180-day nonuse period before the customer could request service from another OA. However, lack of clarity about how FGIS determined whether to grant “nonuse of service” exceptions fostered confusion and conflicts among involved parties and created a perception of inconsistency regarding the handling of such requests. Congress eliminated the “nonuse of service” exception from the USGSA in 2015;  2 FGIS subsequently removed that exception from the regulations. 3

Although the “nonuse of service” exception was eliminated from the USGSA in 2015, Congress reinstated authority to implement a “nonuse of service” exception through an amendment to the USGSA in the 2018 Farm Bill. 4 FGIS must now consider regulatory options related to the reinstatement of the “nonuse of service” exception (see 7 U.S.C. 79(f)(2)(B)(ii).

With this ANPR, AMS is requesting public input into the development of criteria FGIS could apply to determinations about whether to grant “timely service” or “nonuse of service” exceptions to requesting customers. Particularly, AMS seeks input from industry participants and OAs who use and provide official services and are familiar with grain inspection services under the USGSA. A list of criteria and/or questions commenters may address is provided below. AMS welcomes the submission of data and other information to support commenters' views.

Subsequent to the 2015 amendments to the USGSA and the 2016 changes to the FGIS regulations, a number of “nonuse of service” exceptions were terminated. The 2018 Farm Bill directed USDA to allow for restoration of those exceptions where appropriate. Interested parties were given an opportunity to submit restoration requests to FGIS, as described in a Notice to Trade published by AMS on March 5, 2019. 5

The amended USGSA provides that the “nonuse of service” exemption may only be terminated if all the parties to the exception jointly agree on the termination. 6 This means that the customer, the designated OA in the customer's geographic area, the OA that has been providing service under the exception, and FGIS must agree to terminate the exception. This ensures that: (1) All parties are aware of the change and (2) the designated OA for the assigned area will resume providing service to the customer.

The requirement for all parties to jointly agree on termination of the “nonuse of service” exception does not apply if the designation of an official agency is terminated. 7 If the designation of an official agency is renewed or restored after being terminated, the exceptions that were previously approved, under 7 U.S.C. 79(f)(2)(B), may be renewed or restored by requesting a determination from FGIS.

AMS is considering use of the following information for evaluating exceptions requests under 7 U.S.C. 79(f)(2)(B)(i) and (ii). We invite comments, as well as suggested alternative or additional criteria.

a. The requesting facility would submit a verbal or written request for a “timely service” exception.

b. The requesting facility would provide documentation that the designated OA cannot provide service within six (6) hours from the time of the request. Valid documentation may include voice mail message, text message, or email which shows the date and time of the request.

c. The services requested from the designated OA would be within the time frames established in the OA's approved fee schedule.

a. The requesting facility would submit a written request for a “nonuse of service” exception.

b. The requesting facility would demonstrate it has not had official sample-lot inspection or weighing services for 90-consecutive days from its designated OA.

c. The request would document, in writing, why the requesting facility has not received official sample-lot inspection or weighing services for 90-consecutive days from its designated OA. Reasons would be based on data and facts regarding the designated OA's operational capacity to provide requested service.

d. Prior to finalizing a decision for a “nonuse of service” exception, AMS would take the following into consideration:

1. The location of the specified service point(s);

2. Services offered/requested;

3. The ability of the alternate OA to take on additional customers;

4. The ability to staff an onsite laboratory;

5. Impact of weather conditions on the designated OA's ability to provide service; and

6. Whether the requesting facility has ever utilized the official system ( i.e., facilities that have never used the official system before do not automatically qualify for “nonuse of service”).

AMS received several questions from industry members regarding factors that could impact decisions on exceptions. We are sharing these questions to receive public input on whether and/or how these concerns should be included in the process for making decisions on geographic area exceptions under 7 U.S.C 79(f)(2)(B):

1. How should FGIS determine whether someone has not been receiving official services? Should FGIS use time ( e.g., 90 days or 180 days) as a basis for establishing “non-use?

2. How should FGIS determine if OA is unable to provide services in a timely manner? Should timely results be considered under the timely service exception? If so, what should the baseline for determining timeliness?

3. Should the approval under timely service be granted on a one-time basis or for a longer period of time? If longer, what should that timeframe be?

4. What process should be put in place to make sure all parties are aware of an exception?

5. Should there be baseline performance measures or qualifications established for an OA to be considered as a part of an exception request? If so, what should they be?

6. Should any of the following factors be considered in granting a “nonuse of service” exception request: (1) Distance between a facility and the closest office of each OA, (2) fees charged, (3) services offered, (4) number of exceptions already approved for an OA, (5) number of facilities already lost by exceptions to other OAs, (5) ability and willingness to staff an onsite lab? Why or why not?

7. Should requests for “nonuse of service” exceptions be restricted to OAs that only cross into an adjacent OA's designated geographic area? Why or why not?

8. Should customers be able to switch back and forth between official agencies when they have received a “nonuse of service” exception?

a. Why or why not?

b. If switching was allowed, should there be any restrictions and why?

9. Is it difficult to receive accurate, timely and effective service from your officially designated inspection agency?

a. If so, how does this impact your facility's operations?

b. How can this be corrected?

10. Should FGIS continue to grant “nonuse of service” exceptions to grain handling facilities that make the request? If so, what parameters should the agency use to base the decision upon?

11. Should revenue be a factor considered in evaluating and determining “nonuse of service” exceptions?

a. What is the rationale for using or not using such a factor?

b. What type of financial documentation should be required from a requesting facility to justify their claim?

c. Should the financial impact on the designated OA be taken into consideration? Why or why not?

Comments in response to any or all of the above criteria and questions should be submitted to the address provided in the ADDRESSES section of this notice and must be received by May 1, 2020 to ensure consideration.

The Board last revised its Rules Regarding Access to Personal Information under the Privacy Act (the Board's Privacy Act Rule), 12 CFR part 261a, in 2010. See75 FR 63703 (October 18, 2010). The Privacy Act Rule sets forth the procedures for individuals requesting to access or amend information about themselves contained in a system of records maintained by the Board. It also sets out the procedures by which an individual may appeal an adverse determination of a request for access or amendment and identifies the systems of records that are exempt from certain provisions of the Privacy Act.

The Board is establishing a new system of records, BGFRS-43, “FRB—Security Sharing Platform” published elsewhere in this issue of the Federal Register . The new system of records maintains records relating to the Security Sharing Platform that will allow the Board and the twelve Federal Reserve Banks (collectively, “the Federal Reserve System”) to share information regarding individuals who are involved in incidents or events that may affect the safety and security of the premises, grounds, property, personnel, and operations of the Federal Reserve System.

The Board proposes to amend its existing list of exempt system of records to add BGFRS-43, “FRB—Security Sharing Platform,” as an exempt system of records pursuant to 5 U.S.C. 552a(k)(2), which exempts the listed systems from certain provisions of the Privacy Act to the extent that the system contains investigatory material compiled for law enforcement purposes. The Security Sharing Platform system of records contains investigatory material compiled for law enforcement purposes as it will collect, maintain, and permit the sharing by Federal Reserve System law enforcement personnel of information necessary to protect the security and safety of the System's premises, grounds, property, personnel, and operations. Law enforcement personnel may use the collected information to conduct investigations, as appropriate, of suspected violations of civil or criminal laws. Therefore, to the extent BGFRS-43 contains investigatory materials compiled for law enforcement purposes, the system is appropriately designated as exempt pursuant to 5 U.S.C. 552a(k)(2).

Accordingly, the Board is proposing to amend 12 CFR 261a.12(b) to redesignate paragraph (b)(11) referencing BGFRS/OIG-1 Investigative Records as paragraph (b)(12) in order to maintain the Board's practice of listing OIG-specific SORNs after the general SORNs. The Board proposes to add BGFRS-43, “FRB—Security Sharing Platform” as new paragraph (b)(11).

The Privacy Act Regulation sets forth the procedures by which individuals may request access and amendment to records maintained in systems of records at the Board. The Board believes that this rule will not have a significant economic impact on a substantial number of small entities, because it does not apply to business entities.

For the reasons stated in the Supplementary Information, the Board proposes to amend 12 CFR part 261a as follows:

Enviro-Sports Productions, Inc. of Stinson Beach, CA, notified the Coast Guard that it will be conducting the Washington DC Sharkfest Swim event from 7:30 a.m. to 10:30 a.m. on June 20, 2020. The open water swim races consist of approximately 250 adult and youth participants competing on a designated course with three designated swim distances, including 1 km, 2 km, and 4 km. The course starts and finishes at the commercial pier at National Harbor, MD. Hazards from the swim competition include participants swimming within and adjacent to the designated navigation channel and interfering with vessels intending to operate within that channel, as well as swimming within approaches to local public and private marinas and public boat facilities. The Captain of the Port (COTP) Maryland-National Capital Region has determined that potential hazards associated with the swim event would be a safety concern for anyone intending to participate in this event or for vessels that operate within specified waters of the Upper Potomac River.

The purpose of this rulemaking is to protect event participants, non-participants and transiting vessels on certain waters of the Upper Potomac River before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The COTP Maryland-National Capital Region is proposing to establish a special local regulation from 7 a.m. through 11 a.m. on June 20, 2020. There is no alternate date planned for this event. The regulated area would cover all navigable waters of the Upper Potomac River, within an area bounded by a line connecting the following points: From the Rosilie Island shoreline at latitude 38°47′30.30″ N, longitude 077°01′26.70 W, thence west to latitude 38°47′30.00″ N, longitude 077°01′37.30″ W, thence south to latitude 38°47′08.20″ N, longitude 077°01′37.30″ W, thence east to latitude 38°47′09.00″ N, longitude 077°01′09.20″ W, thence southeast along the pier to latitude 38°47′06.30″ N, longitude 077°01′02.50 W, thence north along the shoreline and west along the southern extent of the Woodrow Wilson (I-95/I-495) Memorial Bridge and south and west along the shoreline to the point of origin, located at National Harbor, MD. The regulated area is approximately 1,210 yards in length and 740 yards in width.

The proposed duration of the rule and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after the open water swim event, scheduled from 7:30 a.m. to 10:30 a.m. on June 20, 2020. The COTP and the Coast Guard Patrol Commander (PATCOM) would have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area.

Except for Washington DC Sharkfest Swim event participants and vessels already at berth, a vessel or person would be required to get permission from the COTP or PATCOM before entering the regulated area. Vessel operators can request permission to enter and transit through the regulated area by contacting the PATCOM on VHF-FM channel 16. Vessel traffic would be able to safely transit the regulated area once the PATCOM deems it safe to do so. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols would be considered a non-participant. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

If permission is granted by the COTP or PATCOM, a person or vessel would be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels would be required to operate at a safe speed that minimizes wake while within the regulated area. Official patrol vessels will direct non-participants while within the regulated area. Vessels would be prohibited from loitering within the navigable channel. Only participant vessels and official patrol vessels would be allowed to enter the swim race area.

The regulatory text we are proposing appears at the end of this document.

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 size, time of day and duration of the regulated area, which would impact a small designated area of the Upper Potomac River for 4 hours. The Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule would allow vessels to seek permission to enter the regulated area, and vessel traffic would be able to safely transit the regulated area once the PATCOM deems it safe to do so.

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 proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would 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 proposed 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 proposed rule or any policy or action of the Coast Guard.

This proposed rule would 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 proposed 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 would 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 Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a 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 involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area lasting for 4 hours. Normally such actions are categorically excluded from further review under paragraph L[61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed 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 eRulemaking 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 submissions in response to this docket, see DHS's Correspondence System of Records notice (85 FR 14226, March 11, 2020).

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 is proposing to amend 33 CFR part 100 as follows:

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

On October 1, 2015, EPA promulgated a revision to the ozone NAAQS (2015 ozone NAAQS), lowering the level of both the primary and secondary standards to 0.070 parts per million (ppm). 1 Section 110(a)(1) of the CAA requires states to submit, within 3 years after promulgation of a new or revised standard, SIPs meeting the applicable requirements of section 110(a)(2). 2 On November 19, 2019, the Vermont Air Quality and Climate Division (AQCD) of the Department of Environmental Conservation (DEC) submitted a revision to its State Implementation Plan (SIP). The SIP revision addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)—including the “Good Neighbor” or “transport” provisions—for the 2015 ozone NAAQS.

EPA is acting on the SIP submission from Vermont on the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS (including the transport provisions).

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. 3 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 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.

EPA highlighted the statutory requirement to submit infrastructure SIPs within 3 years of promulgation of a new NAAQS in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2007 memorandum). EPA has issued additional guidance documents and memoranda, including a September 13, 2013, guidance document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 memorandum). Additional guidance documents specifically addressing the interstate-transport (“good neighbor”) provisions of infrastructure SIPs (CAA Section 110(a)(2)(D)) are given under Section II.D. below.

In this notice of proposed rulemaking, EPA is proposing action on Vermont's November 19, 2019, infrastructure SIP submission for the 2015 ozone NAAQS, including the interstate transport provisions (CAA section 110(a)(2)(D)(i)). In Vermont's submission, a detailed list of Vermont Laws and previously SIP-approved Air Quality Regulations show precisely how the various components of its EPA-approved SIP meet each of the requirements of section 110(a)(2) of the CAA for the 2015 ozone NAAQS. The following review evaluates the state's submission in light of section 110(a)(2) requirements and relevant EPA guidance. For the state's November 2019 submission, we provide an evaluation of the applicable Section 110(a)(2) elements, including the transport provisions.

This section (also referred to in this action as an element) of the Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due. 5 In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

In its November 2019 submittal for the 2015 ozone NAAQS, Vermont cites a number of provisions of Vermont Statutes Annotated (V.S.A.) in satisfaction of element A: 10 V.S.A. § 554, “Powers,” authorizes the Secretary of the Vermont Agency of Natural Resources  6 (ANR) to “[a]dopt, amend and repeal rules, implementing the provisions” of Vermont's air pollution control laws set forth in 10 V.S.A. chapter 23. It also authorizes the Secretary to “conduct studies, investigations and research relating to air contamination and air pollution” and to “[d]etermine by appropriate means the degree of air contamination and air pollution in the state and the several parts thereof.” EPA approved 10 V.S.A. § 554 on June 27, 2017 (82 FR 29005). Vermont also cites 10 V.S.A. § 556, “Permits for the construction or modification of air contaminant sources,” which requires applicants to obtain permits for constructing or modifying air contaminant sources, and 10 V.S.A. § 558, “Emission control requirements,” which authorizes the Secretary “to establish emission control requirements . . . necessary to prevent, abate, or control air pollution.” In addition, Vermont cites 10 V.S.A. § 579 “Vehicle emissions labeling program for new motor vehicles” for model year 2010 and later vehicles.

Under Element A of the November 2019 submittal, the state also cites more than 20 Vermont Air Pollution Control Regulations (VT APCR) that it has adopted to control the emissions related to ozone and ozone precursors (nitrogen oxides (NO X ) and volatile organic compounds (VOCs)). A few, with their EPA approval citation  7 are listed here: § 5-502—Major Stationary Sources and Major Modifications (81 FR 50342; August 1, 2016); § 5-251—Control of Nitrogen Oxides Emissions (81 FR 50342; August 1, 2016); § 5-253.5—Stage I Vapor Recovery Controls at Gasoline Dispensing Facilities (81 FR 23164; April 20, 2016); 5-253.8—Industrial Adhesives (84 FR 65009; November 26, 2019); § 5-253.17—Industrial Cleaning Solvents (84 FR 65009; November 26, 2019).

EPA proposes that Vermont meets the infrastructure requirements of section 110(a)(2)(A) for the 2015 ozone NAAQS.

This section requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor, compile, and analyze ambient air quality data, and to make these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

State law authorizes the Secretary of ANR, or authorized representative, to “conduct studies, investigations and research relating to air contamination and air pollution” and to “[d]etermine by appropriate means the degree of air contamination and air pollution in the state and the several parts thereof.” See 10 V.S.A. § 554(8), (9). Vermont Department of Environmental Conservation (DEC), one of several departments within ANR, operates an air quality monitoring network, and EPA approved the state's 2019 Annual Air Monitoring Network Plan on August 15, 2019. 8 Furthermore, Vermont populates EPA's Air Quality System (AQS) with air-quality monitoring data in a timely manner and provides EPA with prior notification when considering a change to its monitoring network or plan. EPA proposes that Vermont has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2015 ozone NAAQS.

States are required to include a program providing for enforcement of all SIP measures and for the regulation of construction of new or modified stationary sources to meet new source review (NSR) requirements under prevention of significant deterioration (PSD) and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.

The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and (iii) a permit program for minor sources and minor modifications.

State law provides the Secretary of ANR with the authority to enforce air pollution control requirements, including SIP-approved 10 V.S.A. § 554, which authorizes the Secretary of ANR to “[i]ssue orders as may be necessary to effectuate the purposes of [the state's air pollution control laws] and enforce the same by all appropriate administrative and judicial proceedings.” In addition, Vermont's SIP-approved regulations VT APCR § 5-501, “Review of Construction or Modification of Air Contaminant Sources,” and VT APCR § 5-502, “Major Stationary Sources and Major Modifications,” establish requirements for permits to construct, modify or operate major air contaminant sources.

EPA proposes that Vermont has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.

PSD applies to new major sources or modifications made to major sources for pollutants where the area in which the source is located is in attainment of, or unclassifiable with regard to, the relevant NAAQS. EPA interprets the CAA as requiring each state to make an infrastructure SIP submission for a new or revised NAAQS demonstrating that the air agency has a complete PSD permitting program in place satisfying the current requirements for all regulated NSR pollutants. VT DEC's EPA-approved PSD rules, contained at VT APCR Subchapters I, IV, and V, contain provisions that address applicable requirements for all regulated NSR pollutants, including greenhouse gases (GHGs).

In 2018, EPA evaluated Vermont's PSD permitting program in the context of an infrastructure SIP submission under CAA § 110(a)(2)(C) and determined that it satisfies the current requirements for all regulated NSR pollutants. See 83 FR 45194 (September 6, 2018). For a detailed analysis, see EPA's proposal in that rulemaking. See 83 FR 30598 (June 29, 2018). No new or revised PSD permitting program requirements have become due since that time. Therefore, for the reasons provided in the June 29, 2018, notice, EPA proposes to approve Vermont's infrastructure SIP for the 2015 ozone NAAQS for the requirement in section 110(a)(2)(C) to include a PSD permitting program in the SIP that covers the requirements for all regulated NSR pollutants as required by part C of the Act.

To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulate emissions of the relevant NAAQS pollutants. On August 1, 2016, EPA approved revisions to Vermont's minor NSR program. See 81 FR 50342. Vermont and EPA rely on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs, VT APCR § 5-502, do not interfere with attainment and maintenance of the 2015 ozone NAAQS.

We are proposing to find that Vermont has met the requirement to have a SIP-approved minor new source review permit program as required under Section 110(a)(2)(C) for the 2015 ozone NAAQS.

This section contains a comprehensive set of air-quality-management elements pertaining to the transport of air pollution with which states must comply. It covers the following five topics, categorized as sub-elements: Sub-element 1, Significant contribution to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the four prongs discussed below. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.

Section 110(a)(2)(D)(i), known as the “good neighbor” provision, generally requires SIPs to contain adequate provisions to prohibit in-state emissions activities from having certain adverse air-quality effects on other states due to interstate transport of pollution. There are four so-called “prongs” within CAA section 110(a)(2)(D)(i): Section 110(a)(2)(D)(i)(I) contains prongs 1 and 2, while section 110(a)(2)(D)(i)(II) includes prongs 3 and 4. This sub-element addresses the first two prongs.

Under prongs 1 and 2 of the good neighbor provision, a SIP for a new or revised NAAQS must contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting air pollutants in amounts that will significantly contribute to nonattainment of the NAAQS in another state (prong 1) or from interfering with maintenance of the NAAQS in another state (prong 2). EPA and states must give independent significance to prong 1 and prong 2 when evaluating downwind air-quality problems under section 110(a)(2)(D)(i)(I). 9

We note that EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to prior ozone NAAQS in several regional regulatory actions, including the Cross-State Air Pollution Rule (CSAPR), which addressed interstate transport with respect to the 1997 ozone NAAQS as well as the 1997 and 2006 fine particulate matter (PM 2.5 ) standards, and the CSAPR Update for the 2008 ozone NAAQS (CSAPR Update). 10 These actions only addressed interstate transport in the eastern United States  11 and did not address the 2015 ozone NAAQS.

Through the development and implementation of CSAPR, the CSAPR Update and previous regional rulemakings pursuant to the good neighbor provision, 12 the EPA, working in partnership with states, developed the following four-step interstate transport framework to address the requirements of the good neighbor provision for the ozone NAAQS:  13 (1) Identify downwind air quality problems; (2) identify upwind states that impact those downwind air quality problems sufficiently such that they are considered “linked” and therefore warrant further review and analysis; (3) identify the emissions reductions necessary (if any), considering cost and air quality factors, to prevent linked upwind states identified in step 2 from contributing significantly to nonattainment or interfering with maintenance of the NAAQS at the locations of the downwind air quality problems; and (4) adopt permanent and enforceable measures needed to achieve those emissions reductions.

EPA has released several documents containing information relevant to evaluating interstate transport with respect to the 2015 ozone NAAQS. First, on January 6, 2017, EPA published a notice of data availability (NODA) with preliminary interstate ozone transport modeling with projected ozone design values for 2023, on which we requested comment. 14 The year 2023 was used as the analytic year for this preliminary modeling because that year aligns with the expected attainment year for Moderate ozone nonattainment areas. 15

On October 27, 2017, we released a memorandum (2017 memorandum) containing updated modeling data for 2023, which incorporated changes made in response to comments on the NODA. 16 Although the 2017 memorandum also released data for a 2023 modeling year, we specifically stated that the modeling may be useful for states developing SIPs to address remaining good neighbor obligations for the 2008 ozone NAAQS, but did not address the 2015 ozone NAAQS. On March 27, 2018, we issued a memorandum (March 2018 memorandum) indicating the same 2023 modeling data released in the 2017 memorandum would also be useful for evaluating potential downwind air-quality problems with respect to the 2015 ozone NAAQS (step 1 of the four-step framework).

The March 2018 memorandum included newly available contribution-modeling results to assist states in evaluating their impact on potential downwind air-quality problems (step 2 of the four-step framework) in their efforts to develop good neighbor SIPs for the 2015 ozone NAAQS to address their interstate transport obligations. 17 EPA subsequently issued two more memoranda in August and October 2018, providing guidance to states developing good neighbor SIPs for the 2015 ozone NAAQS concerning, respectively, potential contribution thresholds that may be appropriate to apply in step 2 and considerations for identifying downwind areas that may have problems maintaining the standard (under prong 2 of the good neighbor provision) at step 1 of the framework. 18

The March 2018 memorandum describes the process and results of the updated photochemical and source-apportionment modeling used to project ambient ozone concentrations for the year 2023 and the state-by-state impacts on those concentrations. The March 2018 memorandum also explains that the selection of the 2023 analytic year aligns with the 2015 ozone NAAQS attainment year for Moderate nonattainment areas. As described in the 2017 and March 2018 memoranda, EPA used the Comprehensive Air Quality Model with Extensions (CAMx version 6.40) to model average and maximum design values in 2023 to identify potential nonattainment and maintenance receptors ( i.e., monitoring sites that are projected to have problems attaining or maintaining the 2015 ozone NAAQS).

The March 2018 memorandum presents design values calculated in two ways: first, following the EPA's historic “3 x 3” approach  19 to evaluating all sites, and second, following a modified approach for coastal monitoring sites in which “overwater” modeling data were not included in the calculation of future-year design values (referred to as the “no water” approach).

For purposes of identifying potential nonattainment and maintenance receptors in 2023, EPA applied the same approach used in the CSAPR Update, wherein EPA considered a combination of monitoring data and modeling projections to identify monitoring sites that are projected to have problems attaining or maintaining the NAAQS. Specifically, EPA identified nonattainment receptors as those monitoring sites with measured values  20 exceeding the NAAQS that also have projected ( i.e., in 2023) average design values exceeding the NAAQS. EPA identified maintenance receptors as those monitoring sites with projected maximum design values exceeding the NAAQS. This included sites with measured values below the NAAQS, but with projected average and maximum design values exceeding the NAAQS, and monitoring sites with projected average design values below the NAAQS, but with projected maximum design values exceeding the NAAQS. EPA included the design values and monitoring data for all monitoring sites projected to be potential nonattainment or maintenance receptors based on the updated 2023 modeling in Attachment B to the March 2018 memorandum.

After identifying potential downwind nonattainment and maintenance receptors, EPA performed nationwide, state-level ozone source-apportionment modeling to estimate the expected impact from each state to each nonattainment and maintenance receptor. 21 EPA included contribution information resulting from the source-apportionment modeling in Attachment C to the March 2018 memorandum. For more information on the modeling and analysis, please see the 2017 and March 2018 memoranda, the NODA for the preliminary interstate transport assessment, and the supporting technical documents included in the docket for this action.

In the CSAPR and the CSAPR Update, the EPA used a threshold of one percent of the NAAQS to determine whether a given upwind state was “linked” at step 2 of the four-step framework and would, therefore, contribute to downwind nonattainment and maintenance sites identified in step 1. If a state's impact did not equal or exceed the one-percent threshold, the upwind state was not “linked” to a downwind air quality problem, and the EPA, therefore, concluded the state will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in the downwind states. However, if a state's impact equaled or exceeded the one-percent threshold, the state's emissions were further evaluated in step 3, taking into account both air-quality and cost considerations, to determine what, if any, emissions reductions might be necessary to address the good neighbor provision.

As noted previously, on August 31, 2018, the EPA issued a memorandum (the August 2018 memorandum) providing guidance concerning potential contribution thresholds that may be appropriate to apply with respect to the 2015 ozone NAAQS in step 2. Consistent with the process for selecting the one-percent threshold in CSAPR and the CSAPR Update, the memorandum included analytical information regarding the degree to which potential air-quality thresholds would capture the collective amount of upwind contribution from upwind states to downwind receptors for the 2015 ozone NAAQS. The August 2018 memorandum indicated that, based on the EPA's analysis of its most recent modeling data, the amount of upwind collective contribution captured using a 1 parts per billion (ppb) threshold is generally comparable, overall, to the amount captured using a threshold equivalent to one percent of the 2015 ozone NAAQS. Accordingly, the EPA indicated that it may be reasonable and appropriate for states to use a 1 ppb contribution threshold, as an alternative to the one-percent threshold, at step 2 of the four-step framework in developing their SIP revisions addressing the good neighbor provision for the 2015 ozone NAAQS. 22

While the March 2018 memorandum presented information regarding the EPA's latest analysis of ozone transport following the approaches the EPA has taken in prior regional rulemaking actions, the EPA has not made any final determinations regarding how states should identify downwind receptors with respect to the 2015 ozone NAAQS at step 1 of the four-step framework. Rather, the EPA noted that states have flexibility in developing their own SIPs to follow different analytical approaches than the EPA's, so long as their chosen approach has an adequate technical justification and is consistent with the requirements of the CAA.

On November 19, 2019, Vermont submitted a SIP revision addressing the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2015 ozone NAAQS. This “good neighbor SIP” was included as an enclosure in the state's infrastructure SIP for the same NAAQS.

Vermont relied on the results of the EPA's modeling for the 2015 ozone NAAQS contained in the March 2018 memorandum to identify downwind nonattainment and maintenance receptors that may be impacted by emissions from sources in Vermont. These results indicate Vermont's greatest impact on any potential downwind nonattainment or maintenance receptor would be 0.07 ppb. Vermont compared these values to a screening threshold of 0.70 ppb, representing one percent of the 2015 ozone NAAQS. Because Vermont's impacts to neighboring states are projected to be less than 0.70 ppb, Vermont concluded that emissions from sources within the state will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

Vermont also reviewed ozone concentrations and trends measured at the state's three ambient air-quality monitors and noted that no concentrations at these monitors has exceeded the 2015 ozone NAAQS since 2010. Vermont also looked at EPA's projected emissions of ozone precursors performed in support of the CSAPR Update. This modeling included annual total NOx and VOC emissions by state for the years 2011 through 2017 and projected emissions for 2023. 23 For Vermont, emissions of ozone precursors have decreased for the period 2011-2017 and are projected to be lower in 2023 than in 2017.

Vermont's November 2019 Good Neighbor submission also lists and discusses Vermont's regulations for controlling emissions of ozone precursors, and its regional emissions-control strategies, including those it has implemented as a member of the Ozone Transport Commission.

The EPA is proposing to rely on the 2023 modeling data identifying downwind receptors and upwind state contributions, as released in the March 2018 memorandum, to evaluate Vermont's good neighbor obligation with respect to the 2015 ozone NAAQS. On September 13, 2019, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued its decision in Wisconsin v. EPA addressing legal challenges to the CSAPR Update, in which the EPA partially addressed certain upwind states' good neighbor obligations for the 2008 ozone NAAQS. 938 F.3d 303. While the court generally upheld the rule as to most of the challenges raised in the litigation, the court remanded the CSAPR Update to the extent it failed to require upwind states to eliminate their significant contributions in accordance with the attainment dates found in CAA section 181 by which downwind states must come into compliance with the NAAQS. Id. at 313. In light of the court's decision, the EPA is providing further explanation regarding why it proposes to find that it is appropriate and consistent with the statute—as well as the legal precedent—to use the 2023 analytic year for assessing good neighbor obligations for the 2015 ozone NAAQS.

The EPA believes that 2023 is an appropriate year for analysis of good neighbor obligations for the 2015 ozone NAAQS because the 2023 ozone season is the last relevant ozone season during which achieved emissions reductions in linked upwind states could assist downwind states with meeting the August 2, 2024, Moderate area attainment date for the 2015 ozone NAAQS. The EPA recognizes that the attainment date for nonattainment areas classified as Marginal for the 2015 ozone NAAQS is August 2, 2021, which currently applies in several downwind nonattainment areas evaluated in the EPA's modeling. 24 However, as explained below, the EPA does not believe that either the statute or applicable case law requires the evaluation of good neighbor obligations in a future year aligned with the attainment date for nonattainment areas classified as Marginal.

The good neighbor provision instructs the EPA and states to apply its requirements “consistent with the provisions of” title I of the CAA. CAA section 110(a)(2)(D)(i); see also North Carolina v. EPA, 531 F.3d 896, 911-12 (D.C. Circuit 2008). This consistency instruction follows the requirement that plans “contain adequate provisions prohibiting” certain emissions in the good neighbor provision. As the D.C. Circuit held in North Carolina, and more recently in Wisconsin, the good neighbor provision must be applied in a manner consistent with the designation and planning requirements in title I that apply in downwind states and, in particular, the timeframe within which downwind states are required to implement specific emissions control measures in nonattainment areas and submit plans demonstrating how those areas will attain, relative to the applicable attainment dates. See North Carolina, 896 F.3d at 912 (holding that the good neighbor provision's reference to title I requires consideration of both procedural and substantive provisions in title I); Wisconsin, 938 F.3d at 313-18.

While the EPA recognizes, as the court held in North Carolina and Wisconsin, that upwind emissions-reduction obligations, therefore, must generally be aligned with downwind receptors' attainment dates, unique features of the statutory requirements associated with the Marginal area planning requirements and attainment date under CAA section 182 lead the EPA to conclude that it is more reasonable and appropriate to require the alignment of upwind good neighbor obligations with later attainment dates applicable for Moderate or higher classifications. Under the Clean Air Act, states with areas designated nonattainment are generally required to submit, as part of their state implementation plan, an “attainment demonstration” that shows, usually through air-quality modeling, how an area will attain the NAAQS by the applicable attainment date. See CAA section 172(c)(1). 25 Such plans must also include, among other things, the adoption of all “reasonably available” control measures on existing sources, a demonstration of “reasonable further progress” toward attainment, and contingency measures, which are specific controls that will take effect if the area fails to attain by its attainment date or fails to make reasonable further progress toward attainment. See, e.g., CAA section 172(c)(1); 172(c)(2); 172(c)(9).

Ozone nonattainment areas classified as Marginal are excepted from these general requirements under the CAA—unlike other areas designated nonattainment under the Act (including for other NAAQS pollutants), Marginal ozone nonattainment areas are specifically exempted from submitting an attainment demonstration and are not required to implement any specific emissions controls at existing sources in order to meet the planning requirements applicable to such areas. See CAA section 182(a): “The requirements of this subsection shall apply in lieu of any requirement that the State submit a demonstration that the applicable implementation plan provides for attainment of the ozone standard by the applicable attainment date in any Marginal Area.”  26 Marginal ozone nonattainment areas are also exempted from demonstrating reasonable further progress towards attainment and submitting contingency measures. See CAA section 182(a), which does not include a reasonable further progress requirement and specifically notes that “Section [172(c)(9)] of this title (relating to contingency measures) shall not apply to Marginal Areas.”

Existing regulations—either local, state, or federal—are typically part of the reason why “additional” local controls are not needed to bring Marginal nonattainment areas into attainment. As described in EPA's record for its final rule defining area classifications for the 2015 ozone NAAQS and establishing associated attainment dates, history has shown that most areas classified as Marginal for prior ozone standards attained the respective standards by the Marginal area attainment date ( i.e., without being re-classified to a Moderate designation). See 83 FR 10376.

As part of a historical lookback, EPA calculated that by the relevant attainment date for areas classified as Marginal, 85 percent of such areas attained the 1979 1-hour ozone NAAQS, and 64 percent attained the 2008 ozone NAAQS. See Response to Comments, section A.2.4. 27 Based on these historical data, EPA expects that many areas classified Marginal for the 2015 ozone NAAQS will also attain by the relevant attainment date as a result of emissions reductions that are already expected to occur through implementation of existing local, state, and federal emissions reduction programs. To the extent states have concerns about meeting their attainment date for a Marginal area, the CAA under section 181(b)(3) provides authority for them to voluntarily request a higher classification for individual areas, if needed.

Areas that are classified as Moderate typically have more pronounced air-quality problems than Marginal areas or have been unable to attain the NAAQS under the minimal requirements that apply to Marginal areas. See CAA sections 181(a)(1) (classifying areas based on the degree of nonattainment relative to the NAAQS), and 181(b)(2) (providing for reclassification to the next highest designation upon failure to attain the standard by the attainment date). Thus, unlike Marginal areas, the statute explicitly requires a state with an ozone nonattainment area classified as Moderate or higher to develop an attainment plan demonstrating how the state will address the more significant air-quality problem, which generally requires the application of various control measures to existing sources of emissions located in the nonattainment area. See generally CAA sections 172(c) and 182(b)-(e).

Given that downwind states are not required to demonstrate attainment by the attainment date or impose additional controls on existing sources in a Marginal nonattainment area, EPA believes that it would be inconsistent to interpret the good neighbor provision as requiring EPA to evaluate the necessity for upwind state emissions reductions based on air quality modeled in a future year aligned with the Marginal area attainment date. Rather, EPA believes it is more appropriate and consistent with the nonattainment planning provisions in title I to evaluate downwind air quality and upwind state contributions, and, therefore, the necessity for upwind state emissions reductions, in a year aligned with an area classification in connection with which downwind states are also required to demonstrate attainment and implement controls on existing sources— i.e., with the Moderate area attainment date, rather than the Marginal area date. With respect to the 2015 ozone NAAQS, the Moderate area attainment date will be in the summer of 2024, and the last full year of monitored ozone-season data that will inform attainment demonstrations is, therefore, 2023.

The EPA's interpretation of the good neighbor requirements in relation to the Marginal area attainment date is consistent with the Wisconsin opinion. For the reasons explained below, the court's holding does not contradict the EPA's view that 2023 is an appropriate analytic year in evaluating good neighbor SIPs for the 2015 ozone NAAQS. The court in Wisconsin was concerned that allowing upwind emission reductions to be implemented after the applicable attainment date would require downwind states to obtain more emissions reductions than the Act requires of them, to make up for the absence of sufficient emissions reductions from upwind states. See 938 F.3d at 316. As discussed previously, however, this equitable concern only arises for nonattainment areas classified as Moderate or higher for which downwind states are required by the CAA to develop attainment plans securing reductions from existing sources and demonstrating how such areas will attain by the attainment date. See, e.g., CAA section 182(b)(1) & (2) (establishing “reasonable further progress” and “reasonably available control technology” requirements for Moderate nonattainment areas). Ozone nonattainment areas classified as Marginal are not required to meet these same planning requirements, and thus the equitable concerns raised by the Wisconsin court do not arise with respect to downwind areas subject to the Marginal area attainment date.

The distinction between planning obligations for Marginal nonattainment areas and higher classifications was not before the court in Wisconsin . Rather, the court was considering whether the EPA, in implementing its obligation to promulgate federal implementation plans under CAA section 110(c), was required to fully resolve good neighbor obligations by the 2018 Moderate area attainment date for the 2008 ozone NAAQS. See 938 F.3d at 312-13. Although the court noted that petitioners had not “forfeited” an argument with respect to the Marginal area attainment date, see id. at 314, the court did not address whether its holding with respect to the 2018 Moderate area date would have applied with equal force to the Marginal area attainment date because that date had already passed. Thus, the court did not have the opportunity to consider these differential planning obligations in reaching its decision regarding the EPA's obligations relative to the then-applicable 2018 Moderate area attainment date, because such considerations were not applicable to the case before the court. 28 For the reasons discussed here, the equitable concerns supporting the Wisconsin court's holding as to upwind state obligations relative to the Moderate area attainment date also support the EPA's interpretation of the good neighbor provision relative to the Marginal area attainment date. Thus, EPA proposes to conclude that its reliance on an evaluation of air quality in the 2023 analytical year for purposes of assessing good neighbor obligations with respect to the 2015 ozone NAAQS is based on a reasonable interpretation of the CAA and legal precedent.

As previously discussed, the March 2018 memorandum identifies potential downwind nonattainment and maintenance receptors, using the definitions applied in the CSAPR Update and using both the “3 x 3” and the “no water” approaches to calculating future year design values. The March 2018 memorandum identifies 57 potential nonattainment and maintenance receptors in the West in Arizona (2), California (49), and Colorado (6). 29 The March 2018 memorandum also provides contribution data regarding the impact of other states on the potential receptors.

For purposes of evaluating Vermont's 2015 ozone NAAQS interstate transport SIP submission, given that the state contributes less than one percent to downwind nonattainment and maintenance sites, it is reasonable to conclude that the state's impact will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in any other state. This is consistent with our October 13, 2016, action on Vermont's SIP with respect to the 2008 ozone NAAQS (81 FR 70631) and with the EPA's approach to both the 1997 and 2008 ozone NAAQS in CSAPR and the CSAPR Update. EPA notes, nonetheless, that consistent with the August 2018 memorandum, it may be reasonable and appropriate for states to use a 1 ppb contribution threshold, as an alternative to a one-percent threshold, at step 2 of the four-step framework in developing their SIP revisions addressing the good neighbor provision for the 2015 ozone NAAQS. However, for the reasons discussed below, it is unnecessary for EPA to determine whether it may be appropriate to apply a 1 ppb threshold for purposes of this action.

The EPA's updated 2023 modeling discussed in the March 2018 memorandum indicates that Vermont's largest impact on any potential downwind nonattainment and maintenance receptor is 0.07 ppb. 30 This value is less than 0.70 ppb (one percent of the 2015 ozone NAAQS), 31 and demonstrates that emissions from Vermont are not linked to any 2023 downwind potential nonattainment and maintenance receptors identified in the March 2018 memorandum. Accordingly, we propose to conclude that emissions from Vermont will not contribute to any potential receptors, and, thus, the state will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in any other state.

To prevent significant deterioration of air quality, this sub-element requires SIPs to include provisions that prohibit any source or other type of emissions activity in one state from interfering with measures that are required in any other state's SIP under Part C of the CAA. As explained in the 2013 memorandum, a state may meet this requirement with respect to in-state sources and pollutants that are subject to PSD permitting through a comprehensive PSD permitting program that applies to all regulated NSR pollutants and that satisfies the requirements of EPA's PSD implementation rules. As discussed above under element C, Vermont has such a PSD permitting program. For in-state sources not subject to PSD, this requirement can be satisfied through a fully-approved nonattainment new source review (NNSR) program with respect to any previous NAAQS. EPA's latest approval of some revisions to Vermont's NNSR regulations was on August 1, 2016. See 81 FR 50342. Therefore, we are proposing to approve this sub-element for the 2015 ozone NAAQS.

With regard to applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 memorandum, 2011 memorandum, and 2013 memorandum recommend that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze. A fully approved regional haze SIP meeting the requirements of 40 CFR 51.308 will include all measures needed to achieve the state's apportionment of emission reduction obligations agreed upon through a regional planning process and will therefore ensure that emissions from sources under the air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility. EPA approved Vermont's Regional Haze SIP on May 22, 2012. See 77 FR 30212. Accordingly, EPA proposes that Vermont meets the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2015 ozone NAAQS.

This sub-element requires that each SIP contain provisions requiring compliance with requirements of section 126 relating to interstate pollution abatement. Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources.

On August 1, 2016 (81 FR 50342), EPA approved revisions to VT APCR § 5-501, which includes a provision that requires VT ANR to provide notice of a draft PSD permit to, among other entities, any state whose lands may be affected by emissions from the source. VT APCR § 5-501(7)(c). Vermont's public notice requirements are consistent with the Federal PSD program's public notice requirements for affected states under 40 CFR 51.166(q). Therefore, we propose to approve Vermont's compliance with the infrastructure SIP requirements of section 126(a) for the 2015 ozone NAAQS. Vermont has no obligations under any other provision of section 126, and no source or sources within the state are the subject of an active finding under section 126 of the CAA with respect to the 2015 ozone NAAQS.

This sub-element also requires each SIP to contain provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. Section 115 authorizes the Administrator to require a state to revise its SIP to alleviate international transport into another country where the Administrator has made a finding with respect to emissions of the particular NAAQS pollutant and its precursors, if applicable. There are no final findings under section 115 of the CAA against Vermont with respect to the 2015 ozone NAAQS. Therefore, EPA is proposing that Vermont has met the applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of the CAA for the 2015 ozone NAAQS.

Section 110(a)(2)(E)(i) requires each SIP to provide assurances that the state will have adequate personnel, funding, and legal authority under state law to carry out its SIP. In addition, section 110(a)(2)(E)(ii) requires each state to comply with the requirements for state boards in CAA section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring implementation of SIP obligations with respect to relevant NAAQS. Section 110(a)(2)(E)(iii), however, does not apply to this action because Vermont does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.

Vermont, through its infrastructure SIP submittal, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. Vermont cites 10 V.S.A. § 553, which designates ANR as the air pollution control agency of the state, and 10 V.S.A. § 554, which provides the Secretary of ANR with the power to “[a]dopt, amend and repeal rules, implementing the provisions” of 10 V.S.A. Chapter 23, Air Pollution Control, and to “[a]ppoint and employ personnel and consultants as may be necessary for the administration of” 10 V.S.A. Chapter 23. Section 554 also authorizes the Secretary of ANR to “[a]ccept, receive and administer grants or other funds or gifts from public and private agencies, including the federal government, for the purposes of carrying out any of the functions of” 10 V.S.A. Chapter 23. Additionally, 3 V.S.A. § 2822 provides the Secretary of ANR with the authority to assess air permit and registration fees, which fund state air programs. In addition to Federal funding and permit and registration fees, Vermont notes that the Vermont DEC Air Quality and Climate Division (AQCD) receives state funding to implement its air programs. 32

EPA proposes that Vermont meets the infrastructure SIP requirements of this portion of section 110(a)(2)(E) for the 2015 ozone NAAQS.

Section 110(a)(2)(E)(ii) requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. Section 128 further provides that a state may adopt more stringent conflicts of interest requirements and requires EPA to approve any such requirements submitted as part of a SIP.

In Vermont, no board or body approves permits or enforcement orders; these are approved by the Secretary of Vermont ANR. Thus, with respect to this sub-element, Vermont is subject only to the requirements of paragraph (a)(2) of section 128 of the CAA (regarding conflicts of interest).

Vermont's November 19, 2019, infrastructure SIP included State of Vermont Executive Order (E.O.) 19-17, Executive Code of Ethics, and requested that we approve it into the SIP and remove E.O. 09-11, which E.O. 19-17 supersedes and replaces. EPA originally approved E.O. 09-11 into the SIP on June 27, 2017. See 82 FR 29005.

The submitted Order, E.O. 19-17, prohibits all Vermont executive branch appointees (including the ANR Secretary) from taking “any action in any matter in which he or she has either a Conflict of Interest or the appearance of a Conflict of Interest, until the Conflict is resolved.”  33 The Order also prohibits a full-time appointee from being “the owner of, or financially interested, directly or indirectly, in any Private Entity or private interest subject to the supervision of his or her respective Public Body, except as a policy holder in an insurance company or a depositor in a bank.”  34 Additionally, the Order requires an appointee to “take all reasonable steps to avoid any action or circumstances, including acts or circumstances which may not be specifically prohibited by th[e] Code [of Ethics], which might result in (1) [u]ndermining his or her independence or impartiality or action; (2) [t]aking official action based on unfair considerations; (3) [g]iving preferential treatment to any private interest or Private Entity based on unfair considerations; (4) [g]iving preferential treatment to any family member or member of the Appointee's household; (5) [u]sing public office for the advancement of personal interest; (6) [u]sing public office to secure special privileges or exemptions; (7) [a]dversely affecting the confidence of the public in the integrity of State government; or (8) undermining the climate of civility and respect required for every open, democratic government to thrive.”

The Order also includes specific disclosure requirements. Every appointee earning $30,000 or more per year, which includes the ANR Secretary, must file annually with the Vermont Secretary of Civil and Military Affairs an “Ethics Questionnaire” identifying “significant personal interests” that “might conflict with the best interests of the state.” Agency Secretaries must also disclose certain additional financial and contractual interests to the State Ethics Commission biennially. EPA proposes to find that E.O. 19-17 satisfies the CAA § 128 requirement applicable to Vermont that potential conflicts of interest by the head of an executive agency that approves permits or enforcement orders under the CAA be “adequately disclosed.” Consequently, EPA proposes to approve E.O. 19-17 into the Vermont SIP and, concurrently, to remove E.O. 09-11 from the Vermont SIP.

EPA proposes that Vermont meets the infrastructure SIP requirements of this portion of section 110(a)(2)(E) for the 2015 ozone NAAQS.

States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require 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. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards. Lastly, the reports shall be available at reasonable times for public inspection.

Vermont's infrastructure submittal references existing state regulations previously approved by EPA that require sources to monitor emissions and submit reports. In particular, VT APCR § 5-405, Required Air Monitoring, provides that ANR “may require the owner or operator of any air contaminant source to install, use and maintain such monitoring equipment and records, establish and maintain such records, and make such periodic emission reports as [ANR] shall prescribe.” See 45 FR 10775 (February 19, 1980). Moreover, section 5-402, Written Reports When Requested, authorizes ANR to “require written reports from the person operating or responsible for any proposed or existing air contaminant source, which reports shall contain,” among other things, information concerning the “nature and amount and time periods or durations of emissions and such other information as may be relevant to the air pollution potential of the source. These reports shall also include the results of such source testing as may be required under Section 5-404 herein.” See 81 FR 50342 (August 1, 2016).

Section 5-404, Methods for Sampling and Testing of Sources authorizes ANR to “require the owner or operator of [a] source to conduct tests to determine the quantity of particulate and/or gaseous matter being emitted” and requires a source to allow access, should ANR have reason to believe that emission limits are being violated by the source, and allows ANR “to conduct tests of [its] own to determine compliance.” See 45 FR 10775 (February 19, 1980). In addition, operators of sources that emit more than five tons of any and all air contaminants per year are required to register the source with the Secretary of ANR and to submit emissions data annually, pursuant to § 5-802, Requirement for Registration, and § 5-803, Registration Procedure. See 60 FR 2524 (January 10, 1995).

Vermont also certifies that nothing in its SIP would preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed. See 40 CFR 51.212(c).

Vermont provides for correlation by VT DEC of emissions reports by sources with applicable emission limitations or standards, as required by CAA § 110(a)(2)(F)(iii). Vermont receives emissions data through its annual registration program. Currently, VT DEC analyzes a portion of these data manually to correlate a facility's reported data with permit conditions, including hours of operation, fuel usage, and annual emissions limits for both criteria emissions and hazardous air contaminant emissions. VT DEC reports that it has finished the process of setting up an integrated electronic database that merges all air contaminant source information across permitting, compliance and registration programs, so that information concerning permit conditions, annual emissions data, and compliance data are accessible in one location for a particular air contaminant source. VT DEC further reports that it is working on a database function that would automatically correlate emissions data with permit conditions and other applicable standards electronically to enable VT DEC to complete correlation more efficiently and accurately.

Regarding the section 110(a)(2)(F) requirement that the SIP ensure that the public has availability to emission reports, Vermont certified in its November 19, 2019, submittal for the 2015 ozone NAAQS that the Vermont Public Records Act, 1 V.S.A. §§ 315-320, provides for the free and open examination of public records, including emissions reports. Furthermore, 10 V.S.A. § 563 specifically provides that the ANR “Secretary shall not withhold emissions data and emission monitoring data from public inspection or review” and “shall keep confidential any record or other information furnished to or obtained by the Secretary concerning an air contaminant source, other than emissions data and emission monitoring data, that qualifies as a trade secret pursuant to 1 V.S.A. § 317(c)(9).” (emphasis added). EPA approved section 563 into the Vermont SIP on June 27, 2017. See 82 FR 29005.

Consequently, EPA proposes that Vermont meets the infrastructure SIP requirements of section 110(a)(2)(F) for the 2015 ozone NAAQS.

This section requires that a plan provide for state authority analogous to that provided to the EPA Administrator in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”

On June 27, 2017, EPA approved a Vermont SIP revision addressing the requirement that the plan provide for state authority comparable to that in section 303 of the CAA. See 82 FR 29005. For a detailed analysis explaining how Vermont meets this requirement, see EPA's notice of proposed rulemaking for that action. See 82 FR 15671, 15679 (March 30, 2017). For the reasons provided in the March 2017 notice, we are proposing to approve the state's submittal for this requirement of Section 110(a)(2)(G) with respect to the 2015 ozone NAAQS.

Section 110(a)(2)(G) also requires that Vermont have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II for certain pollutants. See 40 CFR 51.150, 51.152(c). In general, contingency plans for Priority I, IA, and II areas must meet the applicable requirements of 40 CFR part 51, subpart H (40 CFR 51.150 through 51.153) (“Prevention of Air Pollution Emergency Episodes”) for the relevant NAAQS, if the NAAQS is covered by those regulations. Both AQCRs in Vermont are classified as Priority III for ozone, 40 CFR 52.2371, and, therefore, Vermont does not need to submit a contingency plan to implement its emergency episode authority. 35 Although not expected, if ozone conditions were to change, Vermont does have general authority, as noted previously ( i.e., 10 V.S.A. § 560 and 10 V.S.A. § 8009), to order a source to cease operations if it is determined that emissions from the source pose an imminent danger to human health or safety or an immediate threat of substantial harm to the environment.

In addition, as stated in Vermont's infrastructure SIP submittal under the discussion of public notification (Element J), Vermont posts near real-time air quality data, air quality predictions and a record of historical data on the VT DEC website and, when forecast or measured ozone concentrations exceed the level of the 2015 ozone NAAQS, distributes air quality alerts by email to many parties, including the media and the National Weather Service. Alerts include information about the health implications of elevated pollutant levels and list actions to reduce emissions and to reduce the public's exposure. In addition, daily forecasted ozone levels are also made available on the internet through the EPA AirNow and EnviroFlash systems. Information regarding these two systems is available on EPA's website at www.airnow.gov . Notices are sent out to EnviroFlash participants when levels are forecast to exceed the current ozone standard.

EPA proposes that Vermont meets the applicable infrastructure SIP requirements for section 110(a)(2)(G) with respect to contingency plans for the 2015 ozone NAAQS.

This section requires that a state's SIP provide for revision from time to time as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever EPA finds that the SIP is substantially inadequate. To address this requirement, Vermont's infrastructure submittal references 10 V.S.A. § 554, which provides the Secretary of Vermont ANR with the power to “[p]repare and develop a comprehensive plan or plans for the prevention, abatement and control of air pollution in this state” and to “[a]dopt, amend and repeal rules, implementing the provisions” of Vermont's air pollution control laws set forth in 10 V.S.A. chapter 23. EPA approved 10 V.S.A. § 554 into the SIP on June 27, 2017. See 82 FR 29005. EPA proposes that Vermont meets the infrastructure SIP requirements of CAA section 110(a)(2)(H) with respect to the 2015 ozone NAAQS.

Section 110(a)(2)(I) provides that each plan or plan revision for an area designated as a nonattainment area shall meet the applicable requirements of part D of the CAA. EPA interprets section 110(a)(2)(I) to be inapplicable to the infrastructure SIP process because specific SIP submissions for designated nonattainment areas, as required under part D, are subject to a different submission schedule under subparts 2 through 5 of part D, extending as far as 10 years following area designations for some elements, whereas infrastructure SIP submissions are due within three years after adoption or revision of a NAAQS. Accordingly, EPA takes action on part D attainment plans through separate processes.

Section 110(a)(2)(J) of the CAA requires that each SIP “meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of this title (relating to public notification), and part C of this subchapter (relating to PSD of air quality and visibility protection).” The evaluation of the submission from Vermont with respect to these requirements is described below.

Pursuant to CAA section 121, a state must provide a satisfactory process for consultation with local governments and Federal Land Managers (FLMs) in carrying out its NAAQS implementation requirements.

Vermont's 10 V.S.A. § 554 specifies that the Secretary of Vermont ANR shall have the power to “[a]dvise, consult, contract and cooperate with other agencies of the state, local governments, industries, other states, interstate or interlocal agencies, and the federal government, and with interested persons or groups.” EPA approved 10 V.S.A. § 554 into the SIP on June 27, 2017. See 82 FR 29005. In addition, VT APCR § 5-501(7)(c) requires VT ANR to provide notice to local governments and federal land managers of a determination by ANR to issue a draft PSD permit for a major stationary source or major modification. On August 1, 2016, EPA approved VT APCR § 5-501(7)(c) into Vermont's SIP. See 81 FR 50342. Therefore, EPA proposes that Vermont meets the infrastructure SIP requirements of this portion of section 110(a)(2)(J) for the 2015 ozone NAAQS.

Pursuant to CAA section 127, states must notify the public if NAAQS are exceeded in an area, advise the public of health hazards associated with exceedances, and enhance public awareness of measures that can be taken to prevent exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality.

Vermont's 10 V.S.A. § 554 authorizes the Secretary of Vermont ANR to “[c]ollect and disseminate information and conduct educational and training programs relating to air contamination and air pollution.” In addition, the VT DEC Air Quality and Climate Division website includes near real-time air quality data, and a record of historical data. Air quality forecasts are distributed daily via email to interested parties. Air quality alerts are sent by email to a large number of affected parties, including the media. Alerts include information about the health implications of elevated pollutant levels and list actions to reduce emissions and to reduce the public's exposure. Also, Air Quality Data Summaries of the year's air quality monitoring results are issued annually and posted on the VT DEC Air Quality and Climate Division website. Vermont is also an active partner in EPA's AirNow and EnviroFlash air quality alert programs.

EPA proposes that Vermont meets the infrastructure SIP requirements of this portion of section 110(a)(2)(J) for the 2015 ozone NAAQS.

EPA has already discussed Vermont's PSD program in the context of infrastructure SIPs in the paragraphs addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II) and determined that it satisfies the requirements of EPA's PSD implementation rules. Therefore, the SIP also satisfies the PSD sub-element of section 110(a)(2)(J) for the 2015 ozone NAAQS.

With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, as noted in EPA's 2013 memorandum, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2015 ozone NAAQS.

Based on the above analysis, EPA proposes that Vermont meets the infrastructure SIP requirements of sub-elements 1-3 of section 110(a)(2)(J) for the 2015 ozone NAAQS. We are not proposing action on sub-element 4 because, as noted above, it is not germane to infrastructure SIPs.

Section 110(a)(2)(K) of the Act requires that a SIP provide for the performance of such air quality modeling as the EPA Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which EPA has established a NAAQS, and the submission, upon request, of data related to such air quality modeling. EPA has published modeling guidelines at 40 CFR part 51, Appendix W, for predicting the effects of emissions of criteria pollutants on ambient air quality. EPA also recommends in the 2013 memorandum that, to meet section 110(a)(2)(K), a state submit or reference the statutory or regulatory provisions that provide the air agency with the authority to conduct such air quality modeling and to provide such modeling data to EPA upon request.

In its submittal, Vermont cites to VT APCR § 5-406, Required Air Modeling, which authorizes “[t]he Air Pollution Control Officer [to] require the owner or operator of any proposed air contaminant source . . . to conduct . . . air quality modeling and to submit an air quality impact evaluation to demonstrate that operation of the proposed source . . . will not directly or indirectly result in a violation of any ambient air quality standard, interfere with the attainment of any ambient air quality standard, or violate any applicable prevention of significant deterioration increment . . . .” Vermont reviews the potential impact of such sources consistent with EPA's “Guidelines on Air Quality Models” at 40 CFR part 51, appendix W. See VT APCR § 5-406(2). Vermont also cites to VT APCR § 5-502, Major Stationary Sources and Major Modifications, which requires the submittal of an air quality impact evaluation or air quality modeling to ANR to demonstrate impacts of new and modified major sources, in accordance with VT APCR § 5-406. The modeling data are sent to EPA along with the draft major permit. As a result, the SIP provides for such air quality modeling as the Administrator has prescribed and for the submission, upon request, of data related to such modeling.

The state also collaborates with the Ozone Transport Commission (OTC) and the Mid-Atlantic Regional Air Management Association and EPA in order to perform large-scale urban air shed modeling for ozone and PM, if necessary. EPA proposes that Vermont meets the infrastructure SIP requirements of section 110(a)(2)(K) for the 2015 ozone NAAQS.

This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the costs of reviewing, approving, implementing, and enforcing a permit.

Vermont state law requires application fees for construction or modification permits for major stationary sources, 10 V.S.A. § 556; VT APCR § 5-504, and sets forth fee amounts, 3 V.S.A. § 2822(j)(1)(A)(ii)(I). State law also requires major stationary sources to pay annual registration renewal fees. Id. § 2822(j)(1)(B); VT APCR §§ 5-802, 5-806. Moreover, EPA fully approved Vermont's Title V permit program, see VT APCR subchapter X, on November 29, 2001. See 66 FR 59535; see also 40 CFR part 70, appendix A. To gain this approval, Vermont demonstrated that the annual fees required of Title V sources (which includes major stationary sources) under State law are sufficient to cover the costs of reviewing, approving, implementing, and enforcing the permits. See 61 FR 26145 (May 24, 1996).

Therefore, EPA proposes that Vermont meets the infrastructure SIP requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.

To satisfy Element M, states must provide for consultation with, and participation by, local political subdivisions affected by the SIP. Vermont's infrastructure submittal references 10 V.S.A. § 554, which was approved into the VT SIP on June 27, 2017. See 82 FR 29005. This statute authorizes the Secretary of Vermont ANR to “[a]dvise, consult, contract and cooperate with other agencies of the state, local governments, industries, other states, interstate or interlocal agencies, and the federal government, and with interested persons or groups.” In addition, VT APCR § 5-501(7) provides for notification to local officials and agencies about the opportunity for participating in permitting determinations for the construction or modification of major sources. EPA proposes that Vermont meets the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2015 ozone NAAQS.

Vermont's November 19, 2019, infrastructure SIP submittal for the 2015 ozone NAAQS included State of Vermont Executive Order (E.O.) 19-17, Executive Code of Ethics. As requested by Vermont, EPA is proposing to approve E.O. 19-17 into the Vermont SIP and, because E.O. 19-17 supersedes and replaces E.O. 09-11, to remove E.O. 09-11 from the Vermont SIP.

EPA is proposing to approve the elements of the infrastructure SIP submitted by Vermont on November 19, 2019, for the 2015 ozone NAAQS. Specifically, EPA's proposed action regarding each infrastructure SIP requirement is contained in Table 1 below.

In the above table, the key is as follows:

In addition, EPA is proposing to approve, and incorporate into the Vermont SIP, the following Executive Order, which was included for approval in Vermont's infrastructure SIP submittal:

State of Vermont Executive Order No. 19-17, Executive Code of Ethics, effective December 4, 2017.

EPA is also proposing to remove State of Vermont Executive Order No. 09-11, Executive Code of Ethics, which has been superseded and replaced by Executive Order No. 19-17.

EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In this rule, 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 Vermont executive order regarding the State's executive code of ethics discussed in Section II of this preamble. EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this 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 expected to be an Executive Order 13771 regulatory action because this action is not significant 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 Clean Air Act; and

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

In addition, 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 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).

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this proposed rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of the chemical substance (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This proposed rule may affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28 and must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to a SNUR must certify their compliance with the SNUR requirements. Any person who exports or intends to export the chemical substance that is the subject of a final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

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

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

EPA is proposing amendments to the SNURs for chemical substances in 40 CFR part 721, subpart E. A SNUR for a chemical substance designates certain activities as a significant new use. Persons who intend to manufacture or process the chemical substance for the significant new use must notify EPA at least 90 days before commencing that activity. The required notification would initiate EPA's evaluation of the intended use within the applicable review period. Manufacture and processing for the significant new use would be unable to commence until EPA conducted a review of the notice, made an appropriate determination on the notice, and took such actions as are required with that determination.

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors and may issue or modify a TSCA section 5(e) Order and/or amend the SNUR promulgated under TSCA section 5(a)(2). Procedures and criteria for modifying or revoking SNUR requirements appear at 40 CFR 721.185.

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining whether and how to amend the significant new uses for the chemical substances that are the subject of these SNURs EPA considered relevant information about the toxicity of the chemical substance, likely human exposures and environmental releases associated with possible uses, and the four TSCA section 5(a)(2) factors listed in this unit.

EPA is proposing to amend the significant new use and recordkeeping requirements for chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:

• PMN number and SNUN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) number (if assigned for non-confidential chemical identities).

• Federal Register publication date and reference for the final SNUR previously issued.

• Basis for the Proposed Amendment.

• Potentially Useful Information. This is information identified by EPA that would help characterize the potential health and/or environmental effects of the chemical substance in support of a request by the PMN submitter to modify the TSCA Order, or if a manufacturer or processor is considering submitting a SNUN for a significant new use designated by the SNUR.

• CFR citation assigned in the regulatory text section of this proposed rule.

Chemical name: 2-Propen-1-one, 1-(4- morpholinyl)-.

CAS number: 5117-12-4.

Federal Register publication date and reference: Jan. 5, 2000 (65 FR 354) (FRL-6055-2), amended May 13, 2011 (76 FR 27910) (FRL-8871-5), and amended June 30, 2015, (80 FR 37165) (FRL-9928-93).

Basis for the modified significant new use rule: P-95-169 is used as a diluent for ultraviolet and electron beam curable resins for coatings, inks, and curable adhesives, S-14-1 is used as a monomer in ultraviolet ink jet applications and S-08-7 is used in energy production. The proposed SNUR modification of April 9, 2015, (80 FR 19037) (FRL-9924-10) contains the basis of the current SNUR codified at 40 CFR 721.5185.

On June 12, 2017, EPA received a SNUN (S-17-10) involving the chemical substance for use as a monomer for use in stereolithography. The 90-day review period for the SNUN expired on February 6, 2018 and a TSCA section 5(e) Order was issued under TSCA sections 5(a)(3)(B)(ii)(I) and 5(e)(1)(A)(ii)(I), based on a determination that the use may present an unreasonable risk of injury to human health and the environment. EPA identified concerns, based on acute toxicity, neurotoxicity, eye irritation, sensitization, liver toxicity, and aquatic toxicity test data for the chemical substance. In addition to the dermal protection, hazard communication, use, and water release notification requirements under the SNUR, the TSCA section 5(e) Order for S-17-10 required respirators to prevent inhalation exposure during the use of the chemical substance as a monomer in stereolithography. The proposed amendment would remove the use described in the SNUN from the scope of the significant new use, except where that use does not include the protective measures described in the TSCA section 5(e) Order for S-17-10.

Potentially Useful Information: Certain information may be potentially useful to characterize the health and environmental effects of the chemical substance in support of a request to modify the TSCA section 5(e) Order, or if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. The results of specific organ toxicity and aquatic toxicity testing would help characterize the potential health and environmental effects of the chemical substance

CFR citation: 40 CFR 721.5185.

Chemical names: (P-10-136, Chemical A) Butanoic acid, 3-mercapto-, 1,1′-[2,2-bis[(substituted-1- oxoalkoxy)methyl]-1,3-propanediyl] ester (generic) and (P-10-136, Chemical B) Butanoic acid, 3-mercapto-,1,1′-[2- (hydroxymethyl)-2-(substituted-1- oxoalkoxy)methyl)-1,3-propanediyl] ester (generic).

CAS numbers: Not Available.

Federal Register publication date and reference: Apr. 27, 2012, (77 FR 25236) (FRL- 9343-4).

Basis for the modified significant new use rule: P-10-136 states that the chemical substances will be used as a monomer for acryl-based ultra-violet (UV)-curing coatings, inks, and adhesives. A SNUR was issued based on meeting the concern criteria at 40 CFR 721.170(b)(3)(i) and (b)(4)(i). EPA identified concerns for systemic toxicity, mutagenic effects, dermal sensitization and neurotoxicity, based on test data on the PMN substances. The SNUR required notification for domestic manufacture; for use other than as a monomer for acryl-based ultra-violet (UV)-curing coatings, inks, and adhesives; and for manufacturing, processing or use resulting in releases to surface waters exceeding 2 ppb.

On August 16, 2018, EPA received S-18-5 for the generic (non-confidential) use as a monomer for industrial adhesives, coatings and inks. The 90-day review period expired on September 25, 2019. Based on the activities described in the SNUN, EPA determined under TSCA section 5(a)(3)(C) that the use is not likely to present an unreasonable risk. The modified SNUR would retain the existing notification requirements and remove the new use described in S-18-5 from the scope of the significant new use.

Potentially Useful Information: Certain information may be potentially useful to characterize the health and environmental effects of the chemical substances if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. The results of specific target organ toxicity and aquatic toxicity testing would help characterize the potential health and environmental effects of the chemical substances.

CFR citations: 40 CFR 721.10371 and 40 CFR 721.10372.

Chemical name: Functionalized multi-walled carbon nanotubes (generic).

CAS number: None.

Federal Register publication date and reference: May 9, 2013, (78 FR 27056) (FRL-9384-8).

Basis for the modified significant new use rule: The generic (non-confidential) use for P-12-44 is an additive for rubber and batteries. The SNUR was issued based on meeting the concern criteria at 40 CFR 721.170(b)(3)(ii) and (b)(4)(ii). EPA identified concerns for lung effects to workers exposed to the PMN substance and for sublethal effects in fish at levels at 100 ppb. The SNUR required notification if the chemical substance was used other than for the confidential use described in the PMN, for manufacturing, processing or use as a powder, and for manufacturing, processing or use resulting in releases to surface waters.

On May 14, 2018, EPA received a SNUN, S-18-4 for the chemical substance for use as a chemical additive in epoxy compounds for transportation, marine and industrial coatings, paints and manufactured goods. The 90-day review period for the SNUN expired on February 22, 2019. Based on the activities described in the SNUN, an Order was issued under TSCA sections 5(a)(3)(B)(ii)(I) and 5(e)(1)(A)(ii)(I), based on determinations under sections 5(a)(3)(B)(i) and 5(e)(1)(A)(i) of TSCA that the use may present an unreasonable risk of injury to human health, and the information available to the Agency is insufficient to permit a reasoned evaluation of the environmental effects. EPA identified concerns for lung effects, carcinogenicity, immunotoxicity, and thymus toxicity.

Due to potential worker exposures, the TSCA Order for S-18-4 allows the use of the chemical substance as a chemical additive for use in epoxy compounds for transportation, marine and industrial coatings, paints and manufactured goods and requires personal protective equipment including respirators to prevent dermal and inhalation exposure. The TSCA Order also retains the same requirements as the SNUR for no water release, for no manufacturing, processing or use as a powder, and allowing the confidential use described in PMN P-12-44.

On May 20, 2019 EPA received a SNUN, S-19-5 for the chemical substance from the same submitter as S-18-4 for use in conductive ink. The 90-day review period for the SNUN expired on August 9, 2019. Based on the activities described in the SNUN, including the requirements of the TSCA Order for S-18-4, EPA determined under TSCA section 5(a)(3)(C) that the use is not likely to present an unreasonable risk. EPA modified the TSCA Order for S-18-4 to allow the use described in the SNUN.

The proposed amendment would (1) remove the new uses described in SNUN S-19-5 from the scope of the significant new use and (2) remove the new uses described in SNUN S-18-4 from the scope of the significant new use except where that use does not include the protective measures described in the TSCA Order for S-18-4.

Potentially Useful Information: Certain information may be potentially useful to characterize the health and environmental effects of the chemical substance in support of a request to modify the TSCA section 5(e) Order, or if a manufacturer or processor is considering submitting a SNUN. The results of particle size information, specific organ toxicity, carcinogenicity, and acute and chronic aquatic toxicity testing would help characterize the potential health and environmental effects of the chemical substance.

CFR citation: 40 CFR 721.10663.

Chemical name: Coke (coal), secondary pitch; a carbon-containing residue from the coking of air blown pitch coke oil and/or pitch distillate; composed primarily of isotropic carbon, it contains small amounts of sulfur and ash constituents.

CAS number: 94113-91-4.

Federal Register publication date and reference: November 17, 2016 (81 FR 81264) (FRL-9953-41).

Basis for the modified significant new use rule: P-12-292 states the generic (non-confidential) use of the chemical substance is in the carbon graphite industry. The SNUR issued under TSCA sections 5(e)(1)(A)(i) and 5(e)(1)(A)(ii)(I), was based on the chemical substance may present an unreasonable risk of injury to human health. EPA identified concerns for lung effects and cancer to workers exposed to the substance via inhalation based on SAR analysis of test data on analogous respirable, poorly soluble particulates, in the carbon black. The SNUR required notification for use without the personal protective equipment, including a NIOSH-certified respirator with an APF of at least 50 or compliance with a New Chemicals Exposure Limit (NCEL) of 0.0025 mg/m 3 ; use without establishment and use of a hazard communication program; domestic manufacture; use other than the confidential use specified in the TSCA Order; and exceeding an aggregate confidential production volume limit.

On January 19, 2017, EPA received PMN P-17-217 for the same chemical substance for use as an additive to increase the porosity in the manufacture of diesel particulate filters. The 90-day review period for the PMN expired on July 4, 2017. Based on the activities described in the PMN, an Order was issued under TSCA sections 5(a)(3)(B)(ii)(I) and 5(e)(1)(A)(ii)(I), based on a determination that the chemical substance may present an unreasonable risk of injury to human health. In addition to the restrictions identified for the SNUR, the TSCA Order for P-17-217 did not allow processing or use of the chemical substance involving an application method that generates a dust, vapor, mist, or aerosol; permitted use as an additive for diesel particulate filters manufacture to increase the porosity of the filter material for export only ( i.e., no use of the additive formulation within the United States); and required certain testing before exceeding an aggregate production volume limit of 2,500,000 kilograms.

On June 4, 2019, EPA received a SNUN, S-19-4 for use of the chemical substance as a lubricating agent in the production of automotive disc brakes. The 90-day review period for the SNUN expired on September 13, 2019. Based on the activities described in the SNUN, EPA determined under TSCA section 5(a)(3)(C) that the use is not likely to present an unreasonable risk.

The modified SNUR proposes to designate as a “significant new use” processing or use of the chemical substance involving an application method that generates a dust, vapor, mist, or aerosol, exceeding an aggregate production volume of 2,500,000 kilograms, and to allow the uses described in P-17-217 and S-19-4. It would also be a significant new use to use the substance in an additive formulation to produce diesel particulate filters within the United States.

Potentially Useful Information: Certain information may be potentially useful to characterize the health effects of the chemical substance in support of a request to modify the TSCA section 5(e) Order, or if a manufacturer or processor is considering submitting a SNUN for a significant new use that would be designated by this proposed SNUR. The results of pulmonary toxicity and carcinogenicity testing would help characterize the potential health effects of the chemical substance.

CFR citation: 40 CFR 721.10928.

In those instances where EPA expanded the scope of the significant new use, the Agency identified concerns, as discussed in Unit IV., associated with certain uses that are not current. EPA determined that those uses could result in changes in the type or form of exposure to the chemical substance and/or increased exposures to the chemical substance and/or changes in the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of the chemical substance, in addition to considering the factors discussed in Unit IV.

To establish a significant new use, EPA must determine that the use is not ongoing. EPA solicits comments on whether any of the uses that are not currently a significant new use under the current rule, but which would be regulated as a “significant new use” if this proposed rule is finalized are ongoing. These specific new uses are processing or use involving an application method that generates a dust, vapor, mist, or aerosol or exceeding an aggregate production volume of 2,500,000 kilograms for the SNUR for 40 CFR 721.10928, worker protection requirements for the SNUR for 40 CFR 721.10663, and the additional worker protection requirements for inhalation exposure for the SNUR for 40 CFR 721.5185. EPA designates April 1, 2020 as the cutoff date for determining whether the new use is ongoing. EPA has decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of public release of the proposed SNUR rather than as of the effective date of the final rule. If uses begun after public release were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements, because a person could defeat the SNUR by initiating the proposed significant new use before the rule became effective, and then argue that the use was ongoing as of the effective date of the final rule.

Thus, any persons who begin commercial manufacture or processing activities with the chemical substance that are not currently a significant new use under the current rule but which would be regulated as a “significant new use” if this proposed rule is finalized, must cease any such activity as of the effective date of the rule if and when finalized. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including all extensions, expires.

TSCA section 5 generally does not require developing any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, order or consent agreement under TSCA section 4 (15 U.S.C. 2603), then TSCA section 5(b)(1)(A) (15 U.S.C. 2604(b)(1)(A)) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known or reasonably ascertainable (40 CFR 720.50). Unit IV. lists potentially useful information for all SNURs in this rule. Descriptions of this information are provided for informational purposes. The potentially useful information identified in Unit IV. will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN.

EPA strongly encourages persons, before performing any testing, to consult with the Agency. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing on vertebrate animals, EPA encourages dialog with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h).

The potentially useful information listed in Unit IV. may not be the only means of providing information to evaluate the chemical substance. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 721.25 and 40 CFR 720.40. E-PMN software is available electronically at https://www.epa.gov/opptintr/newchems.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this proposed rule. The EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2019-0614.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations-and-executive-orders.

This proposed rule would modify SNURs for chemical substances that were the subject of a PMN and a SNUN. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993).

According to the PRA, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable. EPA is amending the table in 40 CFR part 9 to list the OMB approval number for the information collection requirements contained in this rule. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB's implementing regulations at 5 CFR part 1320. This Information Collection Request (ICR) was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), to amend this table without further notice and comment.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Regulatory Support Division, Office of Mission Support (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

Pursuant to RFA section 605(b) (5 U.S.C. 601 et seq. ), the Agency hereby certifies that promulgation of this proposed SNUR would not have a significant adverse economic impact on a substantial number of small entities. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was seven in Federal fiscal year (FY) 2013, 13 in FY2014, six in FY2015, 10 in FY2016, 14 in FY2017, and 18 in FY2018 and only a fraction of these were from small businesses. In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $16,000 to $2,800. This lower fee reduces the total reporting and recordkeeping of cost of submitting a SNUN to about $10,116 for qualifying small firms. Therefore, the potential economic impacts of complying with this proposed SNUR are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this final rule. As such, EPA has determined that this proposed rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq. ).

This action would not have a substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “ Federalism” (64 FR 43255, August 10, 1999).

This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “ Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this proposed rule.

This proposed rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.

This proposed rule does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

Therefore, it is proposed that 40 CFR part 721 be amended as follows:

You may be potentially affected by this action if you manufacture (including import), process, or use the chemical substance contained in this rule. Potentially affected entities may include, but are not limited to:

• Manufacturers or processors of the chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

This action may also affect certain entities through pre-existing export notification rules under TSCA. If this proposed SNUR revocation becomes effective, persons who export or intend to export the chemical that is the subject of this action would no longer be subject to the TSCA section 12(b)(15 U.S.C. 2611(b) export notification requirements at 40 CFR part 707 that are currently triggered by the SNUR.

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

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html .

In the Federal Register of April 5, 2019 (84 FR 13531) (FRL-9991-19), EPA promulgated a SNUR at 40 CFR 721.11193 for the chemical substance identified generically as alpha 1,3-polysaccharide (P-16-581). The SNUR designated certain activities as significant new uses. EPA has received new data on the biosolubility of the chemical substance. Based on its review of these data, EPA now proposes to revoke the SNUR pursuant to 40 CFR 721.185. In this unit, EPA provides a brief description of the chemical substance, including the PMN number, generic chemical name, the Federal Register publication date and reference, the docket number, the basis for revoking the SNUR under 40 CFR 721.185, and the CFR citation of the SNUR.

Chemical name: Alpha 1,3-polysaccharide (generic).

CAS number: Not available.

Federal Register publication date and reference: April 5, 2019 (84 FR 13531).

Basis for revocation of SNUR: EPA issued a SNUR for this substance that designated certain activities as significant new uses based on a finding that the substance may pose potential human health hazards. Specifically, EPA identified a concern that adverse lung effects ( i.e., lung overload) could occur if the chemical substance were manufactured, processed, or used in a manner that generated respirable particles. To address this hazard concern, EPA issued a SNUR under TSCA section 5(a)(2), which identified concerns for lung effects if the following protective measures were not followed: (1) No use of the substance other than the uses described in the PMN; and (2) no manufacture, processing, or use with particle size less than 10 micrometers. EPA also identified pulmonary effects toxicity testing as information potentially useful to characterize the health effects of the PMN substance. The PMN submitter performed biosolubility testing on the ground PMN substance and provided the test data to EPA on February 14, 2019. EPA initiated an internal review of these data; however, it moved forward with publishing the final SNUR on April 5, 2019 having not yet completed its review. The following are the results and conclusions of the Agency's review.

The biosolubility testing was conducted using a conservative respiratory tract fluid volume of 0.3 mL/kg bw (rounded down to 20 mL for a 70 kg individual). This equated to a loading concentration of 15 mg of the PMN substance per mL of simulated epithelial lung fluid (SELF). The SELF represented the intraluminal volume of respiratory tract fluid, without consideration of the daily turnover volume. The estimated average alveolar fluid volume is approximately 37 mL, nearly double the volume used for the biosolubility testing. In comparison, the normal reference range for extra vascular lung water (EVLW) index in humans is 7.3 ± 2.8 mL/kg bw (n = 534) or 511 mL for a 70 kg individual. EVLW index corresponds to the “sum of interstitial, intracellular, alveolar, and lymphatic fluid, not including pleural effusions.” Therefore, the solubility of the PMN substance in SELF represented a worst-case loading concentration for the PMN substance in the intraluminal compartment, assuming an equivalent static volume of 20 mL. Given that humans accumulate respirable, poorly soluble particles in the intra-alveolar, interstitial, subpleural, and broncho-vascular bundle compartments, with a predominance of particles eventually being found in the interstitium, the extrapolated in vitro to in vivo concentration of the PMN substance would equal a loading concentration of approximately 3 mg/mL of EVLW ( i.e., 1,500 mg/(511 mL for EVLW—37 mL for alveolar volume)) approximately 5 times lower than the loading concentration tested in the biosolubility study.

This information supports EPA's determination that the substance has inherently low toxicity and should not be considered a poorly soluble particle with the associated hazard concern for lung overload. Therefore, EPA proposes that the SNUR for this chemical substance be revoked pursuant to 40 CFR 721.185(a)(1).

Upon conclusion of the review for P-16-581, EPA designated certain activities as significant new uses. Under 40 CFR 721.185, EPA may at any time revoke a SNUR for a chemical substance which has been added to subpart E of 40 CFR part 721 if EPA makes one of the determinations set forth in 40 CFR 721.185(a)(1) through (a)(6). Revocation may occur on EPA's initiative or in response to a written request. Under 40 CFR 721.185(b)(3), if EPA concludes that a SNUR should be revoked, the Agency will propose the changes in the Federal Register , briefly describe the grounds for the action, and provide interested parties an opportunity to comment.

EPA has determined that the criteria set forth in 40 CFR 721.185(a)(1) have been satisfied for the chemical substance. Therefore, EPA is proposing to revoke the SNUR for this chemical substance. The significant new use notification and the recordkeeping requirements at 40 CFR 721.11193 would terminate when this proposed revocation becomes effective. In addition, export notification under TSCA section 12(b) and 40 CFR part 707, subpart D triggered by the SNUR would no longer be required.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations-and-executive-orders .

This proposed rule would revoke or eliminate an existing regulatory requirement and does not contain any new or amended requirements. As such, the Agency has determined that this proposed SNUR revocation would not have any adverse impacts, economic or otherwise.

The Office of Management and Budget (OMB) has exempted these types of regulatory actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563, entitled (76 FR 3821, January 21, 2011).

This proposed rule does not contain any information collections subject to approval under the PRA, (44 U.S.C. 3501 et seq. ).

Pursuant to the RFA section 605(b), 5 U.S.C. 601 et seq., the Agency hereby that this SNUR revocation would not have a significant economic impact on a substantial number of small entities. This proposed rule would eliminate a reporting requirement.

For the same reasons, this action does not require any action under Title II of UMRA (2 U.S.C. 1531-1538 et seq. ).

This proposed rule does not have Federalism implications, because it would not have substantial direct effects on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

This proposed rule does not have Tribal implications, because it would not have substantial direct effects 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, as specified in Executive Order (65 FR 67249, November 9, 2000).

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined under Executive Order 12866, and it does not address environmental health or safety risks disproportionately affecting children.

This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

In addition, since this action does not involve any technical standards, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

Therefore, it is proposed that 40 CFR part 721 be amended as follows:

I. Background

DoD, GSA, and NASA are proposing to amend the FAR to implement section 855 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232, 15 U.S.C. 644(w)). Section 855 requires Federal agencies to provide a notice, along with solicitations for construction contracts anticipated to be awarded to small businesses, to prospective offerors including information about the agency's policies or practices in complying with FAR requirements related to the timely definitization of requests for equitable adjustment on construction contracts. The notice must include data regarding the time it took the agency to definitize requests for equitable adjustment on construction contracts for the three-year period preceding the issuance of the notice.

The proposed changes to the FAR are summarized in the following paragraphs.

A. Solicitation notice regarding administration of change orders for construction. New text is proposed in FAR part 36, Construction and Architect-Engineer Contracts, subpart 36.5, Contract Clauses, to add coverage of the requirement for a new solicitation notice to be included in solicitations for construction. Specifically, new section 36.524, Notice to offerors regarding administration of change orders for construction, contains the prescription for the use of new solicitation provision 52.236-XX, Notice Regarding Administration of Change Orders for Construction. New section 36.524 also includes guidance for contracting officers regarding the information to be inserted in the provision. This new solicitation provision, which is proposed to be added in FAR part 52, Solicitation Provisions and Contract Clauses, will provide a standardized way for contracting officers to provide the notice required by section 855 of the NDAA for FY 2019.

Additional coverage related to the requirement for the new solicitation notice is proposed in FAR part 43, Contract Modifications, subpart 43.2, Change Orders. A new paragraph is proposed for section 43.204, Administration, to instruct contracting offices and contract administration offices to use a specific Federal system to collect data on the time required to definitize unpriced change orders for construction contracts. The data will be used in new solicitation provision 52.236-XX.

In FAR part 12, Acquisition of Commercial Items, subpart 12.5, Applicability of Certain Laws to the Acquisition of Commercial Items and Commercially Available Off-The-Shelf Items, a new paragraph is added to note that 15 U.S.C. 644(w), Solicitation Notice Regarding Administration of Change Orders for Construction, is not applicable to Executive agency contracts for the acquisition of commercial items.

B. Cross reference to coverage of new solicitation notice.

Section 19.502, Setting aside acquisitions, is amended to add a cross reference to the new section 36.524.

This rule proposes to implement a statutory requirement for Federal agencies to provide a notice, along with solicitations for construction contracts anticipated to be awarded to small businesses, to prospective offerors regarding agency policies or practices, and agency past performance, in complying with FAR requirements related to the timely definitization of requests for equitable adjustments resulting from change orders under construction contracts. The Federal Acquisition Regulatory Council (FAR Council) intends to apply the new provision 52.236-XX, Notice Regarding Administration of Change Orders for Construction, to contracts at or below the simplified acquisition threshold (SAT), but does not intend to apply the new provision to contracts for the acquisition of commercial items including COTS items.

A. Applicability to Contracts at or below the SAT. Pursuant to 41 U.S.C. 1905, a provision of law is not applicable to acquisitions at or below the SAT unless the law (i) contains criminal or civil penalties; (ii) specifically refers to 41 U.S.C. 1905 and states that the law applies to acquisitions at or below the SAT; or (iii) the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT. If none of these conditions are met, the FAR is required to include the statutory requirement(s) on a list of provisions of law that are inapplicable to acquisitions at or below the SAT.

The purpose of this rule is to implement section 855 of the NDAA for FY 2019. Section 855 requires Federal agencies to provide a notice, along with solicitations for construction contracts anticipated to be awarded to small businesses, to prospective offerors regarding agency policies or practices, and agency past performance, in complying with FAR requirements related to the timely definitization of requests for equitable adjustments resulting from change orders under construction contracts. Section 855 is silent on the applicability of these requirements for acquisitions at or below the SAT and does not independently provide for criminal or civil penalties; nor does it include terms making express reference to 41 U.S.C. 1905 and its application to acquisitions at or below the SAT. Therefore, it does not apply to acquisitions at or below the SAT unless the FAR Council makes a written determination as provided at 41 U.S.C. 1905.

Application of section 855 to acquisitions at or below the SAT will maximize the number of small entities who would benefit from the information to be provided regarding definitization of requests for equitable adjustment resulting from change orders under construction contracts. Approximately one third of construction contracts awarded in FY 2016 through FY 2018 were valued at or below the SAT. Not applying this rule to acquisitions at or below the SAT would exclude acquisitions intended to be covered by section 855.

For these reasons, it is in the best interest of the Federal Government to apply the requirements of the rule to acquisitions at or below the SAT.

B. Applicability to Contracts for the Acquisition of Commercial Items, Including COTS Items.

41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. governs the applicability of laws to COTS items, with the Administrator for Federal Procurement Policy the decision authority to determine that it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. The FAR Council and the Administrator for Federal Procurement Policy have not made such determination, therefore this rule does not apply to commercial items.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This proposed rule is not subject to E.O. 13771, Reducing Regulation and controlling Regulatory Costs, because this rule is not expected to be a significant regulatory action under E.O. 12866.

DoD, GSA, and NASA do not expect this change to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the SBA. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit comments separately and should cite 5 U.S.C. 610 (FAR case 2018-020) in correspondence.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part(s) 12, 19, 36, 43, and 52 as set forth below: