The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1490; Project Identifier MCAI-2022-01177-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Jared Hyman, Aerospace Engineer, Boston ACO Branch, Compliance & Airworthiness Division, FAA, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7799; email 9-AVS-AIR-BACO-COS@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of EASA ADs with the most recent being EASA AD 2022-0180, dated August 29, 2022 (EASA AD 2022-0180), to correct an unsafe condition for Airbus Helicopters, formerly Eurocopter, Eurocopter France, Aerospatiale, Model AS 355 E, AS 355 F, AS 355 F1, AS 355 F2, and AS 355 N helicopters, all serial numbers.

This proposed AD was prompted by a report of a partially broken right-hand side (RH) fan support and a completely broken left-hand side (LH) fan support found during scheduled maintenance on a Model AS355 helicopter. The FAA is proposing this AD to detect a cracked or broken fan support leg. The unsafe condition, if not addressed, could result in loss of main gearbox and engine oil cooling function, loss of tail rotor drive, and subsequent loss of control of the helicopter. See EASA AD 2022-0180 for additional background information.

EASA AD 2022-0180 requires repetitively inspecting certain part-numbered RH and LH fan supports for a crack and broken leg and, if there is any crack or broken leg, replacing the affected fan support with a serviceable fan support. If the replacement is not required as a result of the inspection, EASA AD 2022-0180 requires the replacement at a longer compliance time. EASA AD 2022-0180 also states that the replacement constitutes terminating action for the repetitive inspections and prohibits installing an affected part on any helicopter.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA also reviewed Airbus Helicopters Alert Service Bulletin No. AS355-05.00.88, Revision 1, dated July 20, 2022. This service information specifies procedures for inspecting the RH and LH fan supports for a crack and failure (broken leg), replacing an affected part with a serviceable part, and performing a balancing of the tail rotor drive shaft.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of these same type designs.

This proposed AD would require accomplishing the actions specified in the EASA AD, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0180 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0180 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0180 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0180. Service information referenced in EASA AD 2022-0180 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1490 after the FAA final rule is published.

EASA AD 2022-0180 requires replacing each affected part with a serviceable part if any crack or broken leg is found during any required inspection or if the replacement was not previously performed as a result of an inspection, whereas this proposed AD would require removing each affected part from service and replacing with a serviceable part if any crack or broken leg is found during any required inspection or if the replacement was not previously performed as a result of an inspection.

The FAA estimates that this AD, if adopted as proposed, would affect 31 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Visually inspecting a fan support for a crack and broken leg would take about 1 work-hour for an estimated cost of $170 per helicopter (2 fan supports per helicopter) per inspection cycle and up to $5,270 for the U.S. fleet per inspection cycle.

Replacing a fan support would take about 8 work-hours and parts would cost about $600 for an estimated cost of $1,280 per replacement and up to $39,680 for the U.S. fleet.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have 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.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would establish and amend airspace in Dallas, GA, to support IFR operations in the area.

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

Communications should identify both docket numbers (Docket No. FAA-2022-1505 and Airspace Docket No. 22-ASO-26) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for the address and phone number). You may also submit comments through the internet at www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2022-1505; Airspace Docket No. 22-ASO-26.” The postcard will be dated/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except for federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350,1701 Columbia Avenue, College Park, GA 30337.

This document proposes to amend FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to establish Class E surface airspace for Paulding Northwest Atlanta Airport, Dallas, GA, to accommodate aircraft landing and departing this airport. Also, this action would amend Class E airspace extending upward from 700 feet above the surface for Paulding Northwest Atlanta Airport (formerly Paulding County Regional Airport) by increasing the radius to 7 miles (from 6.5 miles) and updating the airport's name.

Class E airspace designations are published in Paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

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

This proposed rule is published in exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs (Assistant Secretary; AS-IA) by 209 Departmental Manual (DM) 8.

Congress granted the Assistant Secretary—Indian Affairs (then, the Commissioner of Indian Affairs) authority to “have management of all Indian affairs and of all matters arising out of Indian relations.”  1 Through section 5 of the Indian Reorganization Act of 1934 (IRA), Congress further empowered the Department of the Interior (Department) to acquire, in its discretion, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments for the purpose of providing land for tribal governments and individual Indians. 2

This proposed rule would update regulations at 25 CFR part 151 that address how the Bureau of Indian Affairs (BIA) considers and processes applications for the discretionary acquisition of land into trust for the benefit of tribal governments and individual Indians, often referred to in shorthand as fee-to-trust or land into trust. The BIA has processed thousands of applications placing over a million acres of land into trust for tribes and individual Indians since the passage of the IRA in 1934. Holding land in trust greatly benefits tribes and individual Indians in various ways, including through exemption from state and local taxation and clearer tribal jurisdiction over the land. The revisions proposed here should allow BIA to process applications more quickly and with less expense to applicants.

These revisions also reflect input and recommendations provided by tribes during tribal consultations hosted by the Department. On March 28, 2022, the Department published a Dear Tribal Leader Letter announcing tribal consultation regarding proposed changes to 25 CFR part 151. The Department held two listening sessions and four formal consultation sessions. The Department also accepted written comments until June 30, 2022.

The Dear Tribal Leader Letter included a Consultation Draft of the proposed revisions to 25 CFR part 151; a Consultation Summary Sheet of Draft Revisions to Part 151; and a redline reflecting proposed changes. The Dear Tribal Leader Letter asked for comments on the Consultation Draft as well as responses to seven consultation questions. The Department received comments from tribal leaders.

In general, the proposed rule seeks to make the process of acquiring land into trust for the benefit of tribal governments and individual Indians more efficient, simpler, and less expensive. The BIA has attempted to do so here through extensive changes to the regulation, best explained in a section-by-section review as provided below in section IV. However, we summarize the major, overarching changes briefly here.

First, BIA affirms that it is the Secretary of the Interior's (Secretary) policy to take land into trust for many reasons supporting tribal and Indian welfare. The prior regulation lacked any affirmative policy in favor of acquisition; it will now be clear Departmental policy to support land into trust, subject to the discretion provided by the IRA. Second, BIA seeks to speed the decision-making process by requiring a decision within 120 days of assembling a complete application package. Third, the proposed rule streamlines the process for the four different forms of acquisitions—on-reservation, contiguous to reservations, off-reservation, and initial Indian acquisitions. For each form, the proposed rule eliminates certain former criteria, and establishes certain presumptions designed to make the process more efficient, based on BIA's longstanding practice and experience in trust acquisitions. We have also developed a new fourth category of acquisition, “initial Indian acquisitions,” designed to ease the process of acquiring first trust lands for those tribes who do not currently possess any land in trust. Fourth, the revised rule lays out in regulatory text the process for determining whether a tribe was “under federal jurisdiction” in 1934, as required by Carcieri v. Salazar, 555 U.S. 379 (2009). The revised Carcieri analysis should make assessing statutory authority here simpler and faster. Fifth, BIA has made many minor changes throughout the rule intended to solve problems and remove obstacles that tribes and individual Indians have faced in the trust acquisition process. For example, many applicants have conducted Phase I Environmental Site Assessments multiple times to keep those assessments valid while their application is pending. The proposed rule would anticipate only one such assessment at the beginning of the process, and allow for a single update, if necessary, after the notice of decision has been signed.

The proposed revision clarifies that this regulation does not govern acquisitions mandated by Congress or a Federal court order. The agency has issued guidance concerning such mandatory acquisitions, including the guidance found in BIA's Fee-to-Trust Handbook, and does not believe regulations are necessary at this time. This is because there are many, varying authorities for mandatory acquisitions, and it is difficult to draft regulations that would be consistent with all current and future mandatory acquisitions. We avoid the risk of creating inconsistency with statutory and judicial orders mandating acquisitions by employing simple guidance on how we approach such acquisitions rather than one-size-fits-all regulations.

The BIA proposes adding or revising many definitions for important terms, including terms used in the previous version of the regulations as well as new terms used in the proposed revision.

The proposed rule adds new definitions for the following terms: contiguous, fee interest, fractionated tract, Indian land, Indian landowner, initial Indian acquisition, interested party, marketable title, preliminary title opinion, preliminary title report, and undivided interest. Definitions are also now listed in alphabetical order.

Among the new definitions, we note that initial Indian acquisition refers to a new category of acquisitions provided under new § 151.12. The BIA wishes to support acquisitions for tribes that do not currently have land held in trust, furthering the BIA's policy of supporting restoration of homelands. Initial Indian acquisitions provide a new, more supportive process for tribes without trust land, as discussed further regarding the new § 151.12. Tribal consultation commenters expressed concern that the consultation draft of this revision used the word “yet” rather than “currently” when referring to land held in trust status. Commenters wanted to ensure that tribes which may have had land in trust in the past but do not have land in trust now would be covered by the initial tribal acquisition provision and asked that “yet” be changed to “currently” to clarify that approach. We have done so here in the proposed rule. We clarify, in response to these comments, that the proposed rule's intention is to treat tribes that previously held land in trust but do not currently hold land in trust in the same manner as tribes which have never held land in trust.

Tribal consultation commenters also expressed concern regarding the term marketable title, and so we have added a clarifying definition for that term to the proposed rule. Commenters believed that requiring marketable title was inappropriate because land held in trust will not likely ever be sold on the market again, and tribes may seek to acquire land for cultural, conservation, spiritual, or other reasons that are entirely separate from commercial concerns. The BIA appreciates and supports those purposes for an acquisition but notes that the term marketable title is used here in a strictly legal sense rather than a commercial sense, referring to title that a reasonable buyer would accept because it is sufficiently free from substantial defects and covers the entire property that the seller purports to sell.

The definition of individual Indian has been modified to remove paragraph (g)(4), which covered acquisitions outside of Alaska by an Alaska Native. This definition implied that acquisitions of land in trust within Alaska was not permissible under these regulations. By removing paragraph (g)(4), BIA clarifies that these regulations do not address that issue. As an additional clarification, the removal of paragraph (g)(4) does not limit trust acquisition by Alaska Natives in any way. Rather, such individuals qualify for individual Indian trust acquisitions in the same manner and to the same extent as any eligible individual Indian under these regulations.

We also clarify here that a person possessing a total of one-half or more degree of Indian blood of a tribe under paragraph (g)(3) may possess such degree of Indian blood through combined heritage from more than one tribe.

The definition of tribe has been modified such that an Indian tribe is any tribe listed under section 102 of the Federally Recognized Indian Tribe List Act of 1994. The List Act was not in place when these regulations were first promulgated but should be used now as it is the official record of federally recognized tribes.

The definition of Indian reservation has been modified slightly to ensure a comprehensive understanding of reservation status in Oklahoma after McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). The new definition provides that in the State of Oklahoma “wherever historic reservations have not yet been reaffirmed” the term Indian reservation means land constituting the former reservation of the tribe as defined by the Secretary. By including this phrase, we make clear that the Secretary will consider all historic Oklahoma reservations consistent with McGirt and its progeny as Indian reservations for purposes of this regulation, regardless of whether courts have concluded reaffirmation litigation addressing such historic reservations.

Finally, we removed the definition of tribal consolidation area. This term was used only once in the existing rule regarding the Department's land acquisition policy. The proposed rule's expansive understanding of the Department's land acquisition policy will cover any acquisitions in such an area.

The existing rule does not express any policy clearly in favor of trust acquisition for tribes and individual Indians. The proposed revision makes plain that the Secretary's policy is to support acquisitions of land in trust for the benefits of tribes and individual Indians. The prior technical introductory language has been moved to new paragraph (a).

In paragraph (b)(3), BIA proposes adding an expansive list of policy reasons that would support an acquisition on behalf of a tribe, including any reason the Secretary determines will support tribal welfare. We note, however, that none of these policy reasons are required if the subject land is within a reservation (per paragraph (b)(1)) or if the tribe already owns an interest in the land, such as a fee interest (per paragraph (b)(2)). We received comment during the tribal consultation encouraging us not to use the word “establish” in regard to homelands, and therefore we have changed language to use the word “protect.” We also included the policy goal of establishing a tribal land base and providing for climate change-related acquisitions. Commenters also suggested adding “cultural practices” to the list of policy reasons in addition to “cultural resources,” and we have done so.

In paragraph (c), several tribal consultation commenters pointed out that the word “adjacent” is used where the intended meaning was “contiguous.” We have changed the text to read “contiguous,” consistent with commenters' recommendations and our understanding of the existing rule's meaning.

This new section lays out in regulatory text the Department's approach to determining statutory authority for acquisitions in trust as required by the Supreme Court's opinion in Carcieri v. Salazar, 555 U.S. 379 (2009), which determined that the IRA only authorized acquisitions for tribes that were under Federal jurisdiction at the time of the IRA's passage, June 18, 1934. The proposed approach incorporates caselaw and analysis by the Office of the Solicitor interpreting the Department's statutory authority as guided by Carcieri.

The proposed rule identifies three categories of evidence. Conclusive evidence establishes in and of itself both that a tribe was placed under Federal jurisdiction and that this jurisdiction persisted in 1934. If conclusive evidence exists, no further analysis is required. Presumptive evidence indicates that a tribe was placed under Federal jurisdiction and may indicate that such jurisdiction persisted in 1934. Where presumptive evidence exists, further analysis must focus only on whether there is evidence indicating that Federal jurisdiction did not exist or did not exist in 1934, such as a statute expressly removing Federal jurisdiction. If neither conclusive nor presumptive evidence exists, the Department will consider available probative evidence, a comprehensive category for which many examples are listed in paragraph (a)(3)(i).

In response to tribal consultation comments, we have added paragraph (a)(4) to clarify that Federal executive officials cannot disavow a government-to-government relationship with a tribe, as that power belongs solely to Congress.

We note that paragraph (c) explains that, if the Office of the Solicitor has previously issued a favorable Carcieri analysis for a tribe, no additional analysis is needed. Such prior determinations remain valid under the proposed revision, which is broader and more inclusive than previous guidance governing the Solicitor's analyses.

Paragraph (e) clarifies that where a statute other than the IRA has authorized trust land acquisitions, the Carcieri -based IRA analysis provided for in paragraphs (a) through (d) is not relevant, and the Secretary may acquire land in trust as permitted by the other Federal law.

Finally, we note that existing § 151.4, “Acquisitions in trust of lands owned in fee by an Indian,” has been deleted in the proposed rule as unnecessary. The rule already provides for such acquisitions, and this section adds no additional information or process regarding such acquisitions.

Minor stylistic changes have been proposed to this section.

This section, § 151.7 in the existing regulation, has been modified to clarify how its provisions are consistent with 25 U.S.C. 2216(c), a provision of the Indian Lands Consolidation Act. Section 2216(c) allows for mandatory acquisitions of fractional interests of a parcel at least a portion of which was in trust or restricted status on November 7, 2000, and is located within a reservation. Tribal consultation commenters were concerned that existing § 151.6 requires use of the discretionary process for such acquisitions, in contravention of past practice and section 2216(c). We assure commenters this is not the case; where section 2216(c) provides for mandatory acquisitions of fractional interests, the Department will continue to employ that statutory authority. However, where a fractional interest is off-reservation or trust or restricted status of another fractional interest in the same parcel did not exist on November 7, 2000, section 2216(c) does not provide authority for mandatory trust acquisitions and, thus, the Department must typically rely on the discretionary acquisition authority provided by the IRA and developed in these regulations. Consistent clarifying language has been added to the introduction of this section.

The proposed revision also replaces the term “buyer” with “applicant.” The term “buyer” is inapposite here; the individual or tribe is not typically buying any property, but rather applying to the Department to take the individual or tribe's fractional interest into trust for the individual or tribe's benefit.

No changes are proposed to this section, numbered in the existing regulations as § 151.8.

This section expands substantially upon existing § 151.9, “Requests for approval of acquisitions.” The new section describes all the pieces of information necessary for the Department to assemble a complete trust acquisition package. Once a complete package is assembled, the proposed rule requires the Department to notify the applicant and then make a decision on the application within 120 days. Many tribal consultation commenters were concerned that no timing deadline was applied to the Department's responsibility to notify applicants of a complete acquisition package; therefore, this proposed revision requires such notification within 30 days.

Tribal consultation commenters also pointed out that this section may be confusing in that some pieces of a complete application package are provided by the applicant, while some are developed by the Department. The following chart clarifies how the Department and applicants work together to develop a complete application package.

Regarding the requirement in § 151.8(a)(3) that the Department concur that a description is legally sufficient, many commenters were concerned that this adds a novel requirement to the land into trust process that may present obstacles. The BIA clarifies that concurrence with the land description presented by the applicant was and has always been a necessary part of the acquisition process. The BIA has always reviewed land descriptions to ensure they are accurate, that the parcel “closes,” and that, generally, the description describes with sufficient specificity what land is to be acquired. It is listed in new § 151.8 primarily to be comprehensive in the requirements for a complete acquisition package. Without such a provision, a flawed or otherwise insufficient land description could be construed as completing an acquisition package, forcing the Department to deny a request if not resolved before the 120-day deadline.

This section is the first of four sections providing the process for the Secretary's consideration of different types of acquisition applications based on the location of the subject land related to an Indian reservation or, in the case of initial Indian acquisitions, the fact that the tribe has no land currently in trust.

The on-reservation acquisition process has been simplified and designed to result in faster acquisitions in several ways. First, under paragraph (a), the Secretary is no longer required to consider the need for a tribal government's acquisition, the impact on state and local government tax rolls, and jurisdictional problems or conflicts of land use which may arise. Given that the subject land is within an Indian reservation set aside by the United States Government for the use and welfare of a tribe and based on the long experience of BIA in processing such applications and then administering land placed into trust, these considerations are not necessary.

We note that some commenters wished to eliminate the purpose criterion in paragraph (a) as well. Because an understanding of purpose is necessary to comply with the National Environmental Policy Act (NEPA) and to support the approach described in paragraph (b), BIA is retaining this criterion.

Second, under paragraph (b), the Secretary will apply great weight to applications pursuing certain important purposes for tribal welfare, including, for instance, the need to protect tribal homelands. This approach recognizes and incorporates the Secretary's policy to support acquisition of land in trust for the benefit of tribes. In applying great weight, the Secretary will expressly consider and closely scrutinize the importance of the listed tribal purposes for land acquisition, and in the holistic consideration applied to land into trust acquisitions under the discretionary authority of the IRA, if reaching a disapproval decision, explain in detail why an acquisition for such purposes should not be approved.

Third, under paragraph (c), the Secretary will now apply a presumption of approval for on-reservation acquisitions. Given that the subject land is within an Indian reservation set aside by the United States Government for the use and welfare of a tribe and given the long history of such lands being removed from tribal ownership through improper sale or the Government's efforts to allot land originally held by the tribal government, a presumption of approval restoring reservation lands to trust status is appropriate and consistent with the proposed rule's policy on land into trust acquisitions.

Fourth, under paragraph (d), while the Secretary will notify state and local governments of a request to have land acquired in trust, the Secretary will no longer invite comment regarding on-reservation acquisitions.

The process for approving acquisitions contiguous to an Indian reservation has also been simplified and designed to result in faster review and decision-making. Paragraphs (a) through (c) are the same for contiguous and on-reservation acquisitions. Under paragraph (a), the Secretary is no longer required to consider the need for a tribal government's acquisition. Under paragraph (b), granting great weight to important tribal purposes will be applied. The Secretary also presumes, based on decades of experience in acquiring and administering contiguous trust lands, that the tribal community will benefit from the acquisition. Under paragraph (c), the Secretary will now apply a presumption of approval for on-reservation acquisitions. Given that the subject land is contiguous to an Indian reservation set aside by the United States Government for the use and welfare of a tribe, and would, after acquisition, form a contiguous parcel of the tribal nation, and based on the long experience of BIA in processing such applications and then administering land placed into trust, these considerations applied under the existing regulations are warranted. However, the proposed rule retains notice and an invitation to state and local governments to comment on the acquisition's potential impact on regulatory jurisdiction, real property taxes, and special assessments. If such comments are received, the Secretary will consider them in her holistic analysis of the application. If no such comments are received, no consideration of these factors is required by the proposed rule.

Off-reservation acquisitions have been streamlined and designed to result in faster review and decision-making through the same reductions in review criteria described for on-reservation and contiguous acquisitions appearing in paragraph (a), and by applying the same great weight standard to important tribal purposes in new paragraph (b).

In addition, existing paragraph (b) applied a “bungee cord” approach, increasing the difficulty of approving an acquisition as distance from a tribe's reservation increased. The proposed rule abandons this approach, providing in new paragraph (c) that the Secretary presumes community benefits without regard to distance of the land from a tribe's reservation boundaries or trust lands. This understanding fits with the BIA's long experience in implementing the land into trust authorities under the IRA. Where a tribe takes off-reservation land into trust, that land nearly always serves an important economic, cultural, self-determination, or sovereignty purpose that supports tribal welfare. Tribal governments are rational actors that make acquisition decisions carefully based on available resources, planning, and purposes valued by the tribe. Accordingly, the Secretary will no longer apply a limiting understanding of distance from a tribal reservation, but will instead consider the location of the land in her holistic analysis of the application as she considers comments received from state and local governments.

This new section is designed to support and speed review and decision-making for acquisitions for tribes which do not currently have land in trust. In the past, initial Indian acquisitions would have been processed under the existing rule's off-reservation provisions. The proposed rule removes any consideration of the location of the land, except if such consideration is necessary given state and local comments, while also providing the reduced criteria for analysis in paragraph (a) and great weight granted to important purposes in paragraph (b). The proposed rule also establishes a presumption of approval for such requests in paragraph (c).

Minor clarifying changes to language were made in this section, including the use of “Office of the Secretary” rather than “Secretary” in paragraphs (c) and (d). Because this rule uses the defined term Secretary in its inclusive sense to mean all Department staff with delegated authority from the Secretary, here in § 151.12 where we refer to the unusual instance where the Secretary herself and her immediate office have taken over review of an application, we specify that circumstance by using “Office of the Secretary.”

In addition, the proposed rule adds new § 151.15, regarding environmental review, to the steps that occur after a decision to take land into trust but before signature on the acceptance of conveyance document, described in paragraph (c)(2)(iii). This change is explained in detail below regarding the new § 151.15.

Two significant changes were made to the Secretary's title review process. First, our understanding is that in certain jurisdictions, including California, many title insurance companies decline to provide abstracts of title to tribal applicants. This market failure has created substantial obstacles for such applicants to bring land into trust. New paragraph (a)(2)(ii) is designed to address that issue by allowing applicants who cannot obtain an abstract of title to instead provide evidence of a title insurance company's declination, and a policy of title insurance less than five years old. In such cases the Secretary shall accept the applicant's preliminary title report in place of an abstract of title as sufficient proof of good title under this section. Evidence of declination may be provided as a letter or email from the applicant's title insurance company declining to provide an abstract based on their business practices.

Second, in paragraph (b) the proposed rule allows the Secretary to seek additional action, if necessary, to address liens, encumbrances, or infirmities on title. The existing rule mandates disapproval if the Secretary determines title is unmarketable. The new rule makes this choice discretionary by replacing “shall” with “may.” While we expect the Department will need to disapprove if title is so deficient as to be unmarketable, the Secretary retains discretion here.

We note also that many tribal consultation commenters were concerned that encumbrances on the land which cannot be conveniently eliminated may prevent acquisition in trust. We clarify here that the Department may accept, in its discretion, some encumbrances on title and, should those encumbrances have the potential to impose costs in the future, the Department may enter into indemnification agreements with the applicant to facilitate the processing of fee-to-trust applications. Under the Checklist for Solicitor's Office Review of Fee-to-Trust Applications, issued by Solicitor Tompkins on January 5, 2017, an indemnification agreement between the BIA and a Tribal applicant to address a responsibility that runs with the land may be appropriate if the Tribal applicant is willing to enter into the indemnification agreement, the risk of liability for the responsibility is low, and the indemnification agreement is the only device that will allow the Department to continue processing the land into trust application. The Department has completed many such agreements and is willing to consider them whenever necessary to further an acquisition.

New § 151.15 covers the Department's environmental responsibilities under NEPA and the Departmental Manual at 602 DM 2, Land Acquisitions: Hazardous Substances Determinations. Paragraph (a) simply states that the Department will comply with NEPA; no changes to BIA's practices are created through this paragraph. Paragraph (b) creates a new process in relation to 602 DM 2. That Departmental policy helps ensure that the Department does not acquire land that has been contaminated by hazardous substances, or that if it does acquire such land unknowingly, its due diligence in examining the property will ensure an innocent landowner defense to liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The innocent landowner defense is only available where environmental site assessments developed pursuant to 602 DM 2 are performed or updated within 180 days of an acquisition. Under the existing regulations, many applicants have, therefore, needed to continually update their environmental site assessments while waiting for a decision on their application. Environmental consultant fees in performing this work added significantly to the cost of an acquisition. To address this problem, the proposed revisions anticipate a maximum of two environmental site assessments. One assessment should be prepared to develop a complete application package. Section 151.15(b) provides that, if this assessment will be more than 180 days old at the time of acquisition and, thus, an update is needed, then a single additional update may be performed after the Secretary issues her notice of decision approving the acquisition, but before the acceptance of conveyance document is signed. Based on lengthy experience in such acquisitions, if no recognized environmental conditions are identified in the first environmental site assessment, the chances are low that any such conditions will have emerged by the time of acceptance. Repeated updates are, therefore, an unnecessary expense for the applicant that will be avoided through new § 151.15(b). We note that § 151.15(b) states that this single additional update “may” be required by the Secretary; we use the term “may” because if the original environmental site assessment was performed less than six months before the acceptance of conveyance, there is no need to perform an update.

Proposed § 151.16 explains in greater detail how the final process of accepting land into trust occurs and when. This section replaces existing § 151.14 and expands on its description of formalization of acceptance.

In brief, this section explains that after all procedural steps are completed, including notice of intent to acquire the land in trust, title review, environmental review, and the expiration of the appeal period, the Secretary will sign an instrument of conveyance. That signature places the land into trust for the benefit of the applicant.

Paragraph (a) of proposed § 151.17 addresses pending applications, offering a choice to applicants. By default, the Department will continue processing such applications under the existing regulations, with the understanding that altering the applicable applications midstream might be an unnecessary disruption, especially for applications that are near the end of the process or awaiting decision.

However, if an applicant wishes to apply the new regulations to its pending application, the applicant may do so by informing us of their choice, with the single exception that the 120-day timeline created in new § 151.8(b)(2) will not apply. Given the number of pending applications before the Department, if a large number of such applications were placed at once under the 120-day timeline, the volume could potentially cause serious problems for agency decision-making.

Paragraph (b) explains that any decisions already made under the existing regulations are not altered by the new regulation.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is significant.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). It would not change current funding requirements and would not impose any economic effects on small governmental entities because it makes no change to the status quo.

This rule is not a major rule under 5 U.S.C. 804(2). This rule:

(a) Would not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule would not have a significant or unique effect on State, local, or tribal governments or the private sector because this rule affects only individual Indians and tribal governments that petition the Department to take land into trust for their benefit. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rule would not affect a taking of private property or otherwise have taking implications under E.O. 12630. A takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, this rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule: (a) meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department will conduct two virtual session, one in-person consultation, and will accept oral and written comments. The consultations sessions will be open to tribal leadership and representatives of federally recognized Indian Tribes and Alaska Native Corporations.

• In-Person Session: The in-person consultation will be held on January 13, 2023, from 9 a.m. to 12 p.m. MST, at the BLM National Training Center (NTC), 9828 N 31st Ave. Phoenix, AZ 85051.

• 1st Virtual Session: The first virtual consultation session will be held on January 19, 2023, from 1 p.m. to 4 p.m. EST. Please visit https://www.zoomgov.com/meeting/register/vJIsd-2qrjwiH2bVXpLvS2VPUZESt2HgtKk to register in advance.

• 2nd Virtual Session: The second virtual consultation will be held on January 30, 2023, from 2 p.m. to 5 p.m. EST. Please visit https://www.zoomgov.com/meeting/register/vJIsduGtqzgtE1hw9EIFrDf3-X_1gy5wGR0 to register in advance.

• Comment Deadline: Please see DATES and ADDRESSES for submission instructions.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have hosted extensive consultation with federally recognized Indian Tribes in preparation of this proposed rule, including through a Dear Tribal Leader letter delivered to every federally-recognized tribe in the country, and through three consultation sessions held on May 9, 13, and 23, 2022.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) is not required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This rule would not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i).) We have also determined that the rule would not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(l)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, and so forth.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is proposing to amend its regulations at 33 CFR part 334 to modify an existing danger zone in the Potomac River for the Naval Surface Warfare Center, Dahlgren Division (NSWCDD) near Dahlgren, Virginia. In a memorandum dated April 27, 2022, the NSWCDD requested that the Corps modify section 334.230(a)(1)(ii) to expand the existing middle danger zone to ensure safe Navy operations on the Potomac River Test Range and to extend the NSWCDD's legal authority to engage civilian watercraft for safe transit instructions in the Potomac River within the expanded middle danger zone. All vessels may transit the expanded middle danger zone area at the conclusion of hazardous operations without the permission of the Commander, NSWCDD and such agencies as they may designate.

a. Regulatory Planning and Review. This proposed rule is not a “significant regulatory action” under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011) and it was not submitted to the Office of Management and Budget for review.

b. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. This rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities ( i.e., small businesses and small governments).

This proposed rule has been reviewed under the Regulatory Flexibility Act. The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis for any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities ( i.e., small businesses and small governments). The expansion of the middle danger zone is necessary to protect public safety and satisfy the Navy's requirements for weapons training. Small entities can utilize navigable waters outside of the danger zone when the danger zone is activated. Small entities can use the navigable waters within the danger zone when it is inactive. Unless information is obtained to the contrary during the comment period, the Corps certifies that the proposed rule would have no significant economic impact on the public.

c. Review under the National Environmental Policy Act. Due to the administrative nature of this action and because there is no significant intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered.

d. Unfunded Mandates Act. This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

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

For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

Pursuant to its authorities in section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps of Engineers is proposing amendments to its regulations at 33 CFR part 334 for the establishment of three danger zones in the waters of Carr Creek and Whitehall Bay near Annapolis, Maryland. In a memorandum dated June 10, 2022, the Naval Support Activity Annapolis requested that the Corps establish these three danger zones. The proposed danger zones are necessary to ensure the safe operation of the United States Naval Academy firing range.

The proposed danger zone in Carr Creek is needed to enable the safe operation of the United States Naval Academy firing range. The firing range is used for training sailors, midshipmen, and law enforcement personnel on an irregular daily schedule, including weekends. The firing range faces Carr Creek and, during times of operation, may present a danger to vessels located within the proposed danger zone. When firing is in progress, a flashing red light and warning sign at the boundary of the danger zone will warn persons, vessels, or other watercraft of danger.

The two proposed danger zones in Whitehall Bay are also needed to enable the safe operation of the United States Naval Academy firing range. During operation of the firing range in a manner that affects these proposed danger zones, persons, vessels, or other watercraft will be notified of closure of these two danger zones by a Local Notice to Mariners.

a. Regulatory Planning and Review. This proposed rule is not a “significant regulatory action” under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011) and it was not submitted to the Office of Management and Budget for review.

b. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities ( i.e., small businesses and small governments).

The Corps 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. The proposed danger zones are necessary for the safe operation of the United States Naval Academy firing range and the safety of persons, vessels, or other watercraft in the vicinity of Carr Creek and Whitehall Bay. When the firing range is in operational use, small entities can utilize navigable waters outside of the three danger zones. Small entities that need to transit the danger zones may do so as long as the vessel operator obtains permission from the Superintendent, U.S. Naval Academy or their designated representatives. This determination is based on the proposed rule governing the danger zones, including the ability for vessel operators to obtain permission from the Superintendent, U.S. Naval Academy or their designated representatives to transit the danger zones. Unless information is obtained to the contrary during the comment period, the Corps expects that the economic impact of the proposed danger zones would have practically no impact on the public, any anticipated navigational hazard or interference with existing waterway traffic. After considering the economic impacts of this danger zone regulation on small entities, I certify that this proposed rule would not have a significant impact on a substantial number of small entities.

c. Review under the National Environmental Policy Act. Due to the administrative nature of this action and because there is no significant intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered.

d. Unfunded Mandates Act. This proposed rule does not impose an enforceable duty among the private sector and, therefore, it is not a federal private sector mandate and it is not subject to the requirements of either section 202 or section 205 of the Unfunded Mandates Act. We have also found under section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.

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

For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334 as follows:

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

The EPA is acting on SIP submittals from Arizona that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) with respect to the 2015 ozone NAAQS. Under section 110(a)(1), states are required to submit infrastructure SIPs within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof). The infrastructure SIP submittals required under section 110(a)(1) are intended to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submittals, and the requirement to make the submittals is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific “elements” that each such infrastructure SIP submittal must address.

The EPA has historically referred to these SIP submittals made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as infrastructure SIP submittals. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submittal from submittals that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment SIP” submittals to address the nonattainment planning requirements of CAA title I part D, “regional haze SIP” submittals required by the EPA rule to address the visibility protection requirements of section 169A, and nonattainment new source review (NSR) permit program submittals to address the permit requirements of CAA title I part D.

CAA section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submittals, and section 110(a)(2) provides more details concerning the required contents of these submittals. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions. 1 The EPA therefore believes that, while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, the EPA believes that the list of required elements for infrastructure SIP submittals provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submittal.

The following examples of ambiguities illustrate the need for the EPA to interpret some CAA section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submittals for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submittal must meet the list of requirements therein, while the EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in CAA title I part D, which specifically address nonattainment SIP requirements. 2 Section 110(a)(2)(I) pertains to nonattainment SIP requirements, and part D addresses when attainment plan SIP submittals to address nonattainment area requirements are due. For example, section 172(b) requires the EPA to establish a schedule for submittal of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated. 3 This ambiguity illustrates that, rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, the EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submittal. Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submittal and whether the EPA must act upon such SIP submittal in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, the EPA interprets the CAA to allow states to make multiple SIP submittals separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submittals to meet the infrastructure SIP requirements, the EPA can elect to act on such submittals either individually or in a larger combined action. 4 Similarly, the EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submittal for a given NAAQS without concurrent action on the entire submittal. For example, the EPA has sometimes elected to act at different times on various elements and subelements of the same infrastructure SIP submittal. 5

Ambiguities within CAA sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submittal requirements for different NAAQS. Thus, the EPA notes that not every element of section 110(a)(2) would be relevant, as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submittals for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submittal for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example, because the content and scope of a state's infrastructure SIP submittal to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS. 6

The EPA notes that interpretation of CAA section 110(a)(2) is also necessary when the EPA reviews other types of SIP submittals required under the CAA. Therefore, as with infrastructure SIP submittals, the EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submittals. For example, section 172(c)(7) requires that attainment plan SIP submittals required by part D meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submittals must meet the requirements of section 110(a)(2)(A) regarding enforceable emissions limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submittals required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the air quality prevention of significant deterioration (PSD) program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submittal may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), the EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submittal. In other words, the EPA assumes that Congress could not have intended that each and every SIP submittal, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, the EPA has adopted an approach under which it reviews infrastructure SIP submittals against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, the EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submittals for particular elements. 7 The EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (“2013 Infrastructure SIP Guidance”). 8 The EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, the EPA describes the duty of states to make infrastructure SIP submittals to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. The EPA also made recommendations about many specific subsections of CAA section 110(a)(2) that are relevant in the context of infrastructure SIP submittals. 9 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, the EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submittals need to address certain issues and need not address others. Accordingly, the EPA reviews each infrastructure SIP submittal for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, CAA section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submittals. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, the EPA reviews infrastructure SIP submittals to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Infrastructure SIP Guidance explains the EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in the EPA's evaluation of infrastructure SIP submittals because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, the EPA's review of infrastructure SIP submittals with respect to the PSD program requirements in CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) focuses on the structural PSD program requirements contained in CAA title I part C and the EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and regulated NSR pollutants, including greenhouse gases (GHG). By contrast, structural PSD program requirements do not include provisions that are not required under the EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 NAAQS for particulate matter of 2.5 micrometers or less (PM 2.5 ). Accordingly, the latter optional provisions are types of provisions the EPA considers irrelevant in the context of an infrastructure SIP action.

For other CAA section 110(a)(2) elements, however, the EPA's review of a state's infrastructure SIP submittal focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate new minor sources. Thus, the EPA evaluates whether the state has a SIP-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submittal, however, the EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program ( i.e., already in the existing SIP) for compliance with the requirements of the CAA and the EPA's regulations that pertain to such programs.

With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submittal is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule.”  10 Thus, the EPA believes it may approve an infrastructure SIP submittal without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submittal even if it is aware of such existing provisions. 11 It is important to note that the EPA's approval of a state's infrastructure SIP submittal should not be construed as explicit or implicit reapproval of any existing potentially deficient provisions that relate to the three specific issues just described.

The EPA's approach to reviewing infrastructure SIP submittals is to identify the CAA requirements that are logically applicable to that submittal. The EPA believes that this approach to the review of a particular infrastructure SIP submittal is appropriate because it would not be reasonable to read the general requirements of CAA section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when the EPA evaluates adequacy of the infrastructure SIP submittal. The EPA believes that a better approach is for states and the EPA to focus attention on those elements of section 110(a)(2) most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, the 2013 Infrastructure SIP Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of CAA section 110(a)(2)(D)(i)(II) because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submittal for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, the EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of CAA sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 12 Section 110(k)(6) authorizes the EPA to correct errors in past actions, such as past approvals of SIP submittals. 13 Significantly, the EPA's determination that an action on a state's infrastructure SIP submittal is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude the EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submittal, the EPA believes that section 110(a)(2)(A) may be among the statutory bases that the EPA relies upon in the course of addressing such deficiency in a subsequent action. 14

As described in the previous section, CAA section 110(a)(1) requires states to make a SIP submittal within three years after the promulgation of a new or revised primary NAAQS. Section 110(a)(2) includes a list of specific elements that each infrastructure SIP submittal must include. These infrastructure SIP elements required by section 110(a)(2) are as follows:

• Section 110(a)(2)(A): Emission limits and other control measures.

• Section 110(a)(2)(B): Ambient air quality monitoring/data system.

• Section 110(a)(2)(C): Program for enforcement of control measures and regulation of new and modified stationary sources.

• Section 110(a)(2)(D)(i): Interstate pollution transport.

• Section 110(a)(2)(D)(ii): Interstate and international pollution abatement.

• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.

• Section 110(a)(2)(F): Stationary source monitoring and reporting.

• Section 110(a)(2)(G): Emergency episodes.

• Section 110(a)(2)(H): SIP revisions.

• Section 110(a)(2)(J): Consultation with government officials, public notification, PSD, and visibility protection.

• Section 110(a)(2)(K): Air quality modeling and submittal of modeling data.

• Section 110(a)(2)(L): Permitting fees.

• Section 110(a)(2)(M): Consultation/participation by affected local entities.

Two elements identified in CAA section 110(a)(2) are not governed by the three-year submittal deadline of section 110(a)(1) and are therefore not addressed in this action. These two elements are section 110(a)(2)(C), to the extent that it refers to permit programs required under part D (nonattainment NSR), and section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure requirements for the nonattainment NSR portion of section 110(a)(2)(C) or the entirety of section 110(a)(2)(I). Additionally, this action does not address the interstate transport requirements under section 110(a)(2)(D)(i)(I), referred to as “prongs 1 and 2” of section 110(a)(2)(D)(i), or the requirements of section 110(a)(2)(D)(i)(II) pertaining to interference with visibility protection in other states, referred to as “prong 4” of section 110(a)(2)(D)(i). The EPA proposed action on Arizona's SIP with respect to prongs 1 and 2 of section 110(a)(2)(D)(i) for the 2015 ozone NAAQS in a prior rulemaking, 15 and the EPA will take action on Arizona's SIP with respect to prong 4 of section 110(a)(2)(D)(i) in a separate, future rulemaking.

In 2015, the EPA promulgated revised NAAQS for 8-hour ozone, triggering a requirement for states to submit infrastructure SIPs. The 2015 ozone NAAQS revised the 2008 8-hour ozone NAAQS by lowering the primary and secondary 8-hour ozone standards from 75 parts per billion (ppb) to 70 ppb.

The Arizona Department of Environmental Quality (ADEQ) submitted two SIP revisions to address the infrastructure SIP requirements in CAA sections 110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS. On September 24, 2018, ADEQ submitted the “Arizona State Implementation Plan Revision under Clean Air Act Sections 110(a)(1) and 110(a)(2) for the 2015 Ozone National Ambient Air Quality Standards” (“2018 Ozone I-SIP submittal”). 16 On February 10, 2022, ADEQ submitted the “State Implementation Plan Revision: Clean Air Act Section 110(a)(2) for the 2012 Fine Particulate & 2015 Ozone NAAQS” (“2022 I-SIP supplement”). 17 The 2018 Ozone I-SIP submittal and the portion of the 2022 I-SIP supplement addressing the 2015 Ozone NAAQS collectively address the infrastructure SIP requirements for the 2015 ozone NAAQS as described by this proposed rule. We refer to them collectively herein as “Arizona's Ozone I-SIP submittals.”

We find that Arizona's Ozone I-SIP submittals meet the procedural requirements for public participation under CAA section 110(a)(2) and 40 CFR 51.102. We also find that they meet the applicable completeness criteria in Appendix V to 40 CFR part 51. We are proposing to act on these submittals with respect to the 2015 ozone NAAQS except for those portions of the 2018 Ozone I-SIP Submittal addressing prongs 1, 2, and 4 of the interstate transport requirements under CAA section 110(a)(2)(D)(i). We are not taking action on the portions of the 2022 I-SIP supplement addressing the 2012 PM 2.5 NAAQS in this rulemaking.

We have evaluated Arizona's Ozone I-SIP submittals and the existing provisions of the Arizona SIP for compliance with the infrastructure SIP requirements of CAA section 110(a)(2) and the applicable regulations in 40 CFR part 51 (“Requirements for Preparation, Adoption, and Submittal of State Implementation Plans”). The technical support document (TSD) for this rulemaking is available in the docket and includes our evaluation for these infrastructure SIP elements as well as our evaluation of various statutory and regulatory provisions identified and submitted by Arizona.

Based on the evaluation presented in this notice and in the accompanying TSD, the EPA proposes to approve Arizona's Ozone I-SIP submittals with respect to the 2015 ozone NAAQS for the following CAA requirements. Proposed partial approvals are indicated by the parenthetical “(in part).”

• 110(a)(2)(A)—Emission limits and other control measures.

• 110(a)(2)(B)—Ambient air quality monitoring/data system.

• 110(a)(2)(C)—Program for enforcement of control measures and regulation of new stationary sources (in part).

• 110(a)(2)(D)(i)(II)—Interference with maintenance, or “prong 3” (in part).

• 110(a)(2)(D)(ii)—Interstate pollution abatement, CAA section 126 (in part).

• 110(a)(2)(D)(ii)—International pollution abatement, CAA section 115.

• 110(a)(2)(E)—Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.

• 110(a)(2)(F)—Stationary source monitoring and reporting.

• 110(a)(2)(G)—Emergency episodes.

• 110(a)(2)(H)—Consultation with government officials.

• 110(a)(2)(J)—Consultation with government officials, public notification, PSD, and visibility protection (in part).

• 110(a)(2)(K)—Air quality modeling and submission of modeling data.

• 110(a)(2)(L)—Permitting fees.

• 110(a)(2)(M)—Consultation/participation by affected local entities.

Details about the partial approvals noted in this section are provided in Section IV.B of this notice regarding proposed partial disapprovals. The EPA is taking no action on prongs 1, 2, and 4 of CAA section 110(a)(2)(D)(i) in this rulemaking. In addition to our proposed partial approval and partial disapproval of Arizona's infrastructure SIP, we are proposing to approve Arizona Revised Statute (ARS) 49-432 and Pima County Code (PCC) 17.24.010 for incorporation into the Arizona SIP.

The EPA proposes to partially disapprove Arizona's Ozone I-SIP submittals with respect to the 2015 ozone NAAQS for the following Clean Air Act requirements.

• 110(a)(2)(C)—Program for enforcement of control measures and regulation of new stationary sources (in part).

• 110(a)(2)(D)(i)(II)—Interference with maintenance, or “prong 3” (in part).

• 110(a)(2)(D)(ii)—Interstate pollution abatement, CAA section 126 (in part).

• 110(a)(2)(J)—PSD and visibility protection (in part).

The EPA is proposing to partially disapprove Arizona's Ozone I-SIP submittals with respect to the 2015 ozone NAAQS for these CAA requirements due to deficiencies with PSD permitting of GHG in all permitting jurisdictions in Arizona and with PSD permitting of all NSR-regulated pollutants in Pima County. The EPA's proposed disapprovals apply only to the portions of these requirements that relate to PSD permitting programs in Arizona, and they apply only with respect to PSD permitting of GHG in all areas of Arizona and with respect to PSD permitting of all NSR-regulated pollutants in Pima County.

Arizona's SIP does not fully satisfy the statutory and regulatory requirements for PSD permit programs under CAA title I, part C, and thus Pima County currently implements the federal PSD program in 40 CFR 52.21 for all regulated NSR pollutants, pursuant to a delegation agreement with the EPA, and all Arizona jurisdictions implement the federal PSD program in 40 CFR 52.21, pursuant to delegation agreements with the EPA, for GHG because Arizona is prohibited by state law from regulating emissions of GHG. Although the Arizona SIP remains deficient with respect to PSD permitting for certain pollutants in certain areas of Arizona as described, these deficiencies are adequately addressed in both areas by existing federal implementation plans (FIPs). If finalized, these partial disapprovals of Arizona's SIP would not create any new consequences for Arizona, the relevant county agencies, or the EPA, as Arizona and the county agencies already implement the EPA's federal PSD program at 40 CFR 52.21, pursuant to delegation agreements, for all regulated NSR pollutants. If finalized, these partial disapprovals would also not result in any offset or highway sanctions, because sanctions are not triggered by disapprovals of infrastructure SIPs submittals.

Under CAA section 110(a)(2)(F), SIPs must require the installation and maintenance of emissions monitoring by stationary sources, periodic emissions reports from such sources, and correlation of such reports with applicable emissions limitations or standards established under the CAA. The stationary source emissions reports required pursuant to section 110(a)(2)(F) must be made available at reasonable times for public inspection.

The 2022 I-SIP supplement includes the submittal of the following two rules for incorporation into the Arizona SIP to meet the requirements of CAA section 110(a)(2)(F) for the 2015 ozone NAAQS: Arizona Revised Statute (ARS) 49-432 and Pima County Code (PCC) 17.24.010. Specifically, ARS 49-432 and PCC 17.24.010 address the provisions of section 110(a)(2)(F) requiring the public availability of stationary source emissions reports. ARS 49-432 requires that ADEQ make available to the public any records, reports, or information obtained pursuant to ARS Title 49, Chapter 3, “AIR QUALITY.” Similarly, PCC 17.24.010 requires that the Pima County Department of Environmental Quality make available to the public any records, reports, or information obtained pursuant to PCC Title 17, Chapter 17.24, “EMISSION SOURCE RECORDKEEPING AND REPORTING.” ARS 49-432 and PCC 17.24.010 each include exemptions to public availability requirements related to business confidentiality, ongoing criminal investigations, and civil enforcement actions.

We find that ARS 49-432 and PCC 17.24.010 provide for the public availability of stationary source emissions reports consistent with the requirements of CAA section 110(a)(2)(F). We therefore propose to approve ARS 49-432 and PCC 17.24.010 into the Arizona SIP. Arizona's Ozone I-SIP submittals include numerous other state and county provisions and a narrative description of how these provisions satisfy CAA section 110(a)(2)(F). We are proposing to approve Arizona's SIP as meeting the requirements of section 110(a)(2)(F); our evaluation of the provisions cited in the Arizona's Ozone I-SIP submittals against the requirements of section 110(a)(2)(F) is included in the TSD for this proposed rule.

The priority thresholds for classification of air quality control regions are listed at 40 CFR 51.150, and the specific classifications of air quality control regions in Arizona are listed at 40 CFR 52.121. Consistent with the provisions of 40 CFR 51.153, reclassification of an air quality control region must rely on the most recent three years of air quality data. Under 40 CFR 51.151 and 51.152, regions classified Priority I, IA, or II are required to have SIP-approved emergency episode contingency plans, while those classified Priority III are not required to have plans. We interpret 40 CFR 51.153 as establishing the means for states to review air quality data and request a higher or lower classification for any given region and as providing the regulatory basis for the EPA to reclassify such regions, as appropriate, under the authorities of CAA sections 110(a)(2)(G) and 301(a)(1).

The priority classification threshold for ozone under 40 CFR 51.150 is 195 micrograms per cubic meter, equivalent to 0.10 parts per million (ppm), calculated as a one-hour maximum. Regions with one-hour ozone concentrations greater than 0.10 ppm are classified as Priority I for ozone under 40 CFR 51.150. All other regions are classified as Priority III for ozone. Arizona's regional priority classifications for ozone under 40 CFR 51.150 are located at 40 CFR 52.121. Currently, the Maricopa Intrastate air quality control region (AQCR) and the Pima Intrastate AQCR are classified as Priority I for ozone.

Air quality data from 2019-2021 indicate that the maximum one-hour ozone concentrations monitored in two Arizona regions exceed the Priority I threshold for one-hour ozone. The maximum one-hour ozone concentration measured in the Maricopa Intrastate AQCR in this period was 0.14 ppm; the maximum one-hour ozone concentration measured in the Central Arizona Intrastate AQCR in this period was 0.11 ppm. We are proposing to retain the classification of the Maricopa Intrastate AQCR as Priority I and to reclassify the Central Arizona Intrastate AQCR from Priority III to Priority I for ozone.

Air quality data from 2019-2021 also indicate that the maximum one-hour ozone concentration monitored in the Pima Intrastate AQCR does not exceed the Priority I threshold for one-hour ozone. The maximum one-hour ozone concentration monitored in this region from 2019-2021 was 0.09 ppm. We are therefore proposing to reclassify the Pima Intrastate AQCR from Priority I to Priority III for ozone.

If finalized, the reclassification of the Central Arizona Intrastate AQCR from Priority III to Priority I for ozone will not generate new requirements for Arizona to submit an emergency episode contingency plans for this area because the provisions in Arizona's existing emergency episode plan apply uniformly statewide. Thus, our proposed reclassification of the Central Arizona Intrastate AQCR for ozone also does not affect our proposed approval of the Arizona SIP with respect CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state plans 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);

• 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); and

• 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.

The State did not evaluate environmental justice considerations as part of its SIP submittal. There is no information in the record inconsistent with the stated goals of Executive Order 12898 (59 FR 7629, February 16, 1994) of achieving environmental justice for people of color, low-income populations, and indigenous peoples.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed 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).

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

This document proposes to approve EKAPCD Rule 210.1A into the EKAPCD portion of the California SIP. This rule was submitted to the EPA by the California Air Resources Board (CARB) on October 5, 2022 by a letter of the same date. We find that CARB's October 5, 2022 SIP submittal for EKAPCD Rule 210.1A meets the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We have published a direct final rule to approve the submitted rule into the EKAPCD portion of the California SIP in the “Rules and Regulations” section of this issue of the Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

Chapter 1200-3-14 of TAPCR regulates SO 2 emissions within the State. Under the General Provisions of this chapter, TAPCR 1200-03-14-.01(6) requires every owner or operator of certain large fuel burning installations and process emission sources to: (1) demonstrate to the satisfaction of the Technical Secretary that their SO 2 emissions will not interfere with attainment and maintenance of any air quality standard, and (2) install and maintain air quality sensors to monitor attainment and maintenance of ambient air quality standards in the areas influenced by their SO 2 emissions. This rule also allows owners or operators to petition the Technical Secretary to terminate ambient monitoring previously commenced provided certain conditions are met.

As explained in more detail below, TDEC's June 1, 2021, SIP submittal proposes changes to paragraph 1200-03-14-.01(6), which is related to the control of SO 2 emissions in the State of Tennessee. Specifically, the submission proposes changes to Tennessee's ambient SO 2 monitoring requirements for affected emission sources, including adding a provision to require the use of permitted allowable SO 2 emissions for the demonstration that subject sources are required to make to show that their SO 2 emissions will not cause interference with attainment and maintenance of any air quality standard, the removal of a less than 20,000 tons per year (tpy) threshold to qualify for the termination of monitors, the addition of a data completeness requirement for the two years of ambient data collected prior to termination of monitoring, and the addition of an exemption for any fuel burning installation or process emission source located in an area in which the Technical Secretary operates one or more ambient SO 2 air quality monitors in the area under the influence of the source's emissions. Tennessee's SIP submittal also provides a CAA section 110( l ) non-interference demonstration to show that the proposed changes to paragraph 1200-03-14-.01(6) will not interfere with any applicable requirement concerning attainment of any NAAQS and reasonable further progress (RFP), or any other applicable CAA requirement. Lastly, the SIP includes clarifying administrative changes to the regulatory language at paragraph 1200-03-14-.01(6).

EPA is proposing to approve Tennessee's June 1, 2021, SIP revision  1 adopting changes to the General Provisions (Section 1200-03-14-.01) of TAPCR Chapter 1200-03-14, Control of Sulfur Dioxide Emissions, which were adopted on June 3, 2009, and May 31, 2021. The SIP submission proposes to revise Tennessee's general provisions for characterizing SO 2 emissions through ambient air monitoring near fuel burning installations  2 with a specific rated capacity or process emission sources that emit a specific emission level of SO 2 . EPA proposes to approve this SIP revision because the Agency preliminarily finds that the changes to paragraph 1200-03-14-.01(6) are consistent with the CAA and will not interfere with any applicable requirement concerning attainment of the SO 2 NAAQS and RFP or any other applicable CAA requirement.

The current SIP-approved version of paragraph 1200-03-14-.01(6) applies to owners or operators of large fuel burning installations with a total rated capacity greater than 1,000 million British thermal units per hour (MMBtu/hr) or process emission sources that emit greater than 1,000 tpy of SO 2, starting in 1972 and thereafter. The following three subparagraphs of the rule describe the requirements these facilities must meet.

As described in subparagraph (a) of paragraph 1200-03-14-.01(6), these sources are required to demonstrate that they will not interfere with attainment or maintenance of the SO 2 NAAQS, either alone or in combination with other SO 2 sources in the area.

Subparagraph (b) of paragraph 1200-03-14-.01(6) requires subject sources to install and maintain ambient air SO 2 monitors in areas influenced by their emissions. This subparagraph also allows sources to petition the Tennessee Technical Secretary  3 to shut down these industrial SO 2 monitors based on two years of air quality data within the area of influence of the source's emissions under certain conditions. As described in subparagraph 1200-03-14-.01(6)(b), such petitions may be granted only if the following three conditions are met: (1) the actual SO 2 emissions from a fuel burning installation do not exceed 20,000 tpy; (2) the source is not located in a nonattainment area, and does not significantly impact a nonattainment area; and (3) the monitored SO 2 concentrations in the vicinity of the source do not exceed 75 percent of the Tennessee Ambient Air Quality Standards.

Finally, subparagraph (c) of paragraph 1200-03-14-.01(6) requires that any calculations performed to demonstrate that sources, either alone or in contribution to other sources, will not interfere with attainment and maintenance of any primary or secondary air quality standard must be based on the assumption that the source is operating at maximum rated capacity.

Sources in Tennessee that meet applicability requirements of paragraph 1200-03-14-.01(6) include large fuel burning installations (identified by Tennessee as electric generating units (EGUs)) and process or manufacturing emission sources (non-EGUs). The existing subject sources consist of seven EGUs operated by the Tennessee Valley Authority (TVA) and three non-EGU sources. Tennessee includes in its submission a list of the EGUs and non-EGUs in the State that meet the applicability criteria of paragraph 1200-03-14-.01(6). 4 The list includes the SO 2 attainment status for each area where these sources are located and each facility's ambient monitoring status.

Tennessee's June 1, 2021, SIP submission proposes to amend Chapter 1200-03-14, Control of Sulfur Dioxide Emissions, by modifying paragraph (6) of Section 1200-03-14-.01, General Provisions. The submission also includes a CAA section 110( l ) non-interference demonstration, discussed in more detail in Section III.C of this preamble, to show that the proposed changes to paragraph 1200-03-14-.01(6) in the Tennessee SIP will not interfere with any applicable requirement concerning attainment of the SO 2 NAAQS and RFP or any other applicable CAA requirement. The following paragraphs discuss these revisions more specifically.

Paragraph 1200-03-14-.01(6) is revised to replace “calendar year 1972 or any other calendar year thereafter” with “any calendar year.” This change simply removes the obsolete year 1972 for which an affected source would have to reach the required rated capacity or the 1,000 tpy emission threshold in order to be covered under this rule. Additionally, minor administrative changes were applied to this paragraph and a reference is added to point to the new applicability exception under subparagraph 1200-03-14-.01(6)(d) described below.

As noted in Section III.A of this preamble, subparagraph (a) of paragraph 1200-03-14-.01(6) requires affected sources subject to this rule to demonstrate that SO 2 emissions from these sources will not interfere with attainment or maintenance of the SO 2 NAAQS, either alone or in combination with other SO 2 sources. The June 1, 2021, SIP submission adds a sentence to subparagraph (a) stating that “Any such demonstration must be based on the allowable emission rate specified in the source's construction or operating permit(s) and the source's maximum rated capacity.” The requirement that the demonstration will be based on maximum rated capacity is moved from SIP-approved subparagraph (c) which is now deleted and reserved. Subparagraph (a) adds language that provides that any such demonstrations will be based on a source's allowable emissions, which is limited by the source's maximum rated capacity and any enforceable emission limits. The latter is determined by either requirements for new or modified sources under construction permit programs or by applicable requirements incorporated into title V operating permits for the sources covered under Rule 1200-03-14-.01(6). 5

As noted in Section III.A of this preamble, subparagraph (b) of paragraph 1200-03-14-.01(6) establishes the requirement for owners and operators of affected sources to install and maintain SO 2 air quality monitors, provides the criteria for reporting monitored SO 2 data to the state air agency, and states that owners and operators may petition the Technical Secretary to terminate operation of a SO 2 monitor based on two calendar years of air quality data and compliance with other specific criteria. See TAPCR 1200-03-14-.01(6)(b). The proposed amendments at subparagraph (b) clarify that owners or operators must provide two complete calendar years of data from the cited monitor in the area of influence of the SO 2 source. The revision also defines the term “complete” for the purpose of this subparagraph to mean that all data was collected in accordance with the collection, completeness, and quality assurance requirements specified in the affected source's title V operating permit.

As noted in Section III.A of this preamble, subparagraph (b) of paragraph 1200-03-14-.01(6) also allows source owners or operators to petition to terminate operation of an SO 2 monitor in the source's area of influence. The Technical Secretary may grant the petition if three criteria are met: (1) Actual SO 2 emissions from a fuel burning installation do not exceed 20,000 tpy; (2) the source is located in an attainment area and does not significantly impact a sulfur dioxide nonattainment area; and (3) measurements of air quality in the vicinity of the source demonstrate that ambient SO 2 levels do not exceed 75 percent of the Tennessee Ambient Air Quality Standards. The June 1, 2021, proposed amendment removes the first criterion, that actual SO 2 emissions for fuel burning installations do not exceed 20,000 tpy, as a mandatory prerequisite to granting a petition to terminate operation of a monitor. 6

The proposed amendments to the rule also add a new provision at subparagraph 1200-03-14-.01(6)(d) that exempts owners or operators from the requirement to install and maintain an SO 2 ambient air monitor in the area under the influence of the applicable source, as required by 1200-03-14-.01(b), if the Technical Secretary operates one or more ambient SO 2 air quality monitors in the area under the influence of the source's emissions.

Tennessee explains in its section 110( l ) non-interference demonstration that SO 2 emission levels in the State have decreased significantly over the last ten years due to several air quality improvements such that the SIP revision will not interfere with attainment or maintenance of any NAAQS. See section III.C, below, for EPA's review and analysis of Tennessee's SIP submission, including its non-interference demonstration.

Section 110( l ) of the CAA prohibits approval of a SIP revision if the revision would interfere with any applicable requirement concerning attainment and RFP, or any other applicable requirement of the CAA. Tennessee's June 1, 2021, SIP revision includes a CAA section 110( l ) non-interference demonstration for the removal of item (1) of subparagraph 1200-03-14-.01(6)(b), which eliminates one of three criteria required for terminating operation of an industrial SO 2 monitor, and for adding a new subparagraph 1200-03-14-.01(6)(d), which would exempt subject sources from the requirement to install an SO 2 monitor if the state air agency operates one or more SO 2 monitors in the area under the influence of the source. Tennessee's section 110( l ) demonstration is intended to show that the changes to Rule 1200-03-14-.01(6) will not interfere with attainment or maintenance, RFP, or any other applicable CAA requirement. Because Rule 1200-03-14-.01(6) is part of the Tennessee SIP, the requirements of CAA section 110( l ) must be satisfied before EPA can approve changes to the existing ambient monitoring requirements. EPA has reviewed Tennessee's SIP revision and preliminarily finds the submission consistent with CAA section 110( l ). EPA's review and assessment of Tennessee's CAA 110( l ) demonstration is provided in Sections III.C.1 and 2.

Tennessee's June 1, 2021, submission includes a demonstration to show that removing the 20,000 tpy emission threshold criterion at item (1) of subparagraph 1200-03-14-.01(6)(b), which is one of three required conditions that must be met for the Technical Secretary to grant approval of a petition to terminate operation of the SO 2 monitor, is consistent with CAA section 110( l ). Tennessee's section 110( l ) demonstration indicates that SO 2 levels in the State have dropped markedly over the last decade due to enforceable control measures and retirement of coal-burning installations, which have resulted in a significant reduction in SO 2 emissions such that the removal of the 20,000 tpy threshold in item (1) of subparagraph 1200-03-14-.01(6)(b) will not interfere with attainment or maintenance of the SO 2 standard in the State.

Table 1 of the section 110( l ) demonstration identifies seven EGUs and three non-EGU SO 2 emitting sources in Tennessee as sources affected by the proposed changes to the requirements of paragraph 1200-03-14-.01(6). Some of these facilities petitioned the Technical Secretary to terminate the operation of their respective SO 2 industrial monitors, and those petitions were granted. Table 1 indicates that a petition to terminate the operation of SO 2 monitors was granted to six facilities in 2008 and to one facility in 2019. Table 1 identifies two facilities, Eastman Chemical Company (Eastman) and Nyrstar Clarksville, Inc. (Nyrstar), as operating monitors, and the 110( l ) demonstration also states that these are the only sources currently required to perform ambient monitoring pursuant to 1200-03-14-.01(6)(b). 7

This proposed rule is organized as follows:

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

You may be potentially affected by this action if you manufacture, process, or otherwise use listed PFAS or any chemicals listed under 40 CFR 372.28. The following list of North American Industry Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this action applies to them. Potentially affected entities may include:

• Facilities included in the following NAICS manufacturing codes (corresponding to Standard Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 211130*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191, 511199, 512230*, 512250*, 519130*, 541713*, 541715* or 811490*. *Exceptions and/or limitations exist for these NAICS codes.

• Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20 through 39): 211130 (corresponds to SIC code SIC 1321, Natural Gas Liquids and SIC 2819, Industrial Inorganic Chemicals, Not Elsewhere Classified); or 212111, 212112, 212113 (corresponds to SIC code 12, Coal Mining (except 1241)); or 212221, 212222, 212230, 212299 (corresponds to SIC code 10, Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 221118, 221121, 221122, 221330 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC codes 4911, 4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); or 562112 (limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC code 7389, Business Services, NEC)); or 562211, 562212, 562213, 562219, 562920 (limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq. ) (corresponds to SIC code 4953, Refuse Systems).

• Federal facilities.

A more detailed description of the types of facilities covered by the NAICS codes subject to reporting under EPCRA section 313 can be found at: https://www.epa.gov/toxics-release-inventory-tri-program/tri-covered-industry-sectors. To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372, subpart B of title 40 of the Code of Federal Regulations. Federal facilities are required to report under Executive Order 14008 ( https://www.govinfo.gov/content/pkg/FR-2021-02-01/pdf/2021-02177.pdf ), as explained in the Council on Environmental Quality's 2021 memorandum to Chief Sustainability Officers ( http://www.epa.gov/sites/default/files/2021-04/documents/final_ceq_memo_on_tri_april_2021.pdf ). If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

EPA is proposing to add all PFAS included on the Toxics Release Inventory (TRI) pursuant to sections 7321(b) and 7321(c) of the 2020 NDAA to the list of chemicals of special concern (40 CFR 372.28). (EPA maintains a list of PFAS added to the TRI list pursuant to the NDAA: https://www.epa.gov/toxics-release-inventory-tri-program/list-pfas-added-tri-ndaa. ) The addition of these PFAS to the list of chemicals of special concern will align reporting requirements for these PFAS with other chemicals of special concern. This will likely result in additional Form R reports being filed for these PFAS due to the removal of the availability of the de minimis exemption and the option to use Form A. It will also limit the use of range reporting, which will capture more specific information for PFAS added pursuant to sections 7321(b) and 7321(c) of the NDAA.

In addition, EPA is proposing to remove the availability of the de minimis exemption under the Supplier Notification Requirements (40 CFR 372.45) for facilities that manufacture or process any chemicals included on the list of chemicals of special concern.

This action is issued under EPCRA sections 313, 42 U.S.C. 11023 and 328, 42 U.S.C. 11048. EPCRA is also referred to as Title III of the Superfund Amendments and Reauthorization Act of 1986.

EPA is taking this action to increase the data collected for PFAS. Removing the availability of certain burden-reduction reporting options will result in a more complete picture of the releases and waste management quantities for PFAS. This proposed change would increase the number of TRI reports on listed PFAS and the amount of information provided on such reports, resulting in more information on the waste management of these chemicals available to the Agency, as well as to the public. In addition, this action will increase data collected for all chemicals of special concern by eliminating the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern. The elimination of this exemption from Supplier Notification Requirements will ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase.

EPA prepared an economic analysis for this action entitled, “Economic Analysis for the Proposed Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications Requirements for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting,” which presents an analysis of the costs of the proposed reporting changes for PFAS and other chemicals of special concern (Ref. 1). EPA estimates that this action would result in an additional 605 to 1,997 Form R reports being filed annually. EPA estimates that the costs of this action will be approximately $3,064,271 and $10,114,734 in the first year of reporting and approximately $1,459,215 and $4,816,518 in the subsequent years. In addition, EPA has determined that, of the 467 to 1,313 small businesses affected by this action, none are estimated to incur annualized cost impacts of more than 1% of revenues. Thus, this action is not expected to have a significant adverse economic impact on a substantial number of small entities.

1. Submitting CBI. Do not submit CBI information to EPA through https://www.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 https://www.epa.gov/dockets/commenting-epa-dockets#tips

EPCRA section 313, 42 U.S.C. 11023 (also known as the Toxics Release Inventory (TRI)), requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to PPA section 6607, 42 U.S.C. 13106. Note that TRI does not cover all chemicals, facilities, or types of pollution (see https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory for information on which chemicals and facilities are regulated under TRI).

TRI provides information about releases of toxic chemicals from covered facilities throughout the United States; however, TRI data do not reveal whether or to what degree the public is exposed to listed chemicals. TRI data can, in conjunction with other information, be used as a starting point in evaluating such exposures and the risks posed by such exposures. The determination of potential risk to human health and/or the environment depends upon many factors, including the toxicity of the chemical, the fate of the chemical in the environment, and the amount and duration of human or other exposure to the chemical.

For more information on TRI, visit the TRI website at www.epa.gov/tri. Additionally, via this website, EPA provides a Factors to Consider When Using Toxics Release Inventory Data document ( https://www.epa.gov/system/files/documents/2022-02/factorstoconsider_approved-by-opa_1.25.22-copy.pdf ), which helps explain some of the uses, as well as limitations, of data TRI collects.

PFAS are synthetic organic compounds that do not occur naturally in the environment. PFAS contain an alkyl carbon chain on which the hydrogen atoms have been partially or completely replaced by fluorine atoms. In general, the strong carbon-fluorine bonds of PFAS make them resistant to degradation and thus highly persistent in the environment (Refs. 2 and 3). Some of these chemicals have been used for decades in a wide variety of consumer and industrial products (Refs. 2 and 3). Some PFAS have been detected in wildlife indicating that at least some PFAS have the ability to bioaccumulate (Ref. 3). Because of the widespread use of PFAS in commerce and their tendency to persist in the environment, most people in the United States have been exposed to PFAS (Refs. 2, 4 and 5). Some PFAS can accumulate in humans and remain in the human body for long periods of time ( e.g., months to years) (Refs. 2 and 3), as a result, several PFAS have been detected in human blood serum (Refs. 2, 3, 4, and 5).

On December 20, 2019, the NDAA was signed into law (Pub. L. 116-92, https://www.congress.gov/public-laws/116th-congress ). The NDAA included two provisions that automatically add PFAS to the TRI list. First, section 7321(b) of the NDAA added to the TRI list, effective January 1, 2020, 14 chemicals by name and/or Chemical Abstracts Service Registry Number (CASRN) and additional PFAS that meet specific criteria. On June 22, 2020 (85 FR 37354) (FRL-10008-09), EPA updated the TRI list in the CFR to reflect the 172 non-CBI PFAS added to TRI by section 7321(b).

Additional PFAS are added to the TRI list on an annual basis by the NDAA. Specifically, PFAS that meet the criteria in section 7321(c) of the NDAA are deemed added to the TRI list on January 1 of the year after specific criteria are met. Through this provision, the NDAA will continue to add PFAS to the TRI list over time as additional PFAS meet the criteria outlined in 7321(c). The criteria of section 7321(c) require the addition to the TRI list of certain PFAS after any one of the following dates:

• Final Toxicity Value. The date on which the Administrator finalizes a toxicity value for the PFAS or class of PFAS;

• Significant New Use Rule. The date on which the Administrator makes a covered determination for the PFAS or class of PFAS;

• Addition to Existing Significant New Use Rule. The date on which the PFAS or class of PFAS is added to a list of substances covered by a covered determination;

• Addition as an Active Chemical Substance. The date on which the PFAS or class of PFAS to which a covered determination applies is:

—Added to the list published under section 8(b)(1) of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2601 et seq. ) and designated as an active chemical substance under TSCA section 8(b)(5)(A); or

—Designated as an active chemical substance under TSCA section 8(b)(5)(B) on the list published under TSCA section 8(b)(1).

EPA updates the TRI list in the CFR to reflect the PFAS added to TRI by section 7321(c) of the NDAA. The first update rule identifying PFAS that met the 7321(c) criteria during 2020 was published on June 3, 2021 (86 FR 29698) (FRL-10022-25).

To date, section 7321 of the NDAA has added a total of 180 PFAS to the TRI list ( https://www.epa.gov/tri/PFAS ). A complete list of the PFAS added to the TRI list can be found at: https://www.epa.gov/toxics-release-inventory-tri-program/list-pfas-added-tri-ndaa. In addition, the NDAA established a manufacture, processing, or otherwise use reporting threshold of 100 pounds for each of the PFAS added to the TRI list by sections 7321(b) and 7321(c) of the NDAA. In the first year of reporting for the initial 172 listed PFAS, EPA only received 89 reports from 38 facilities covering 43 different PFAS.

EPA is proposing to add all PFAS included on the TRI list pursuant to sections 7321(b) and 7321(c) of the NDAA (see 40 CFR 372.65(d) and (e)) to the list of chemicals of special concern at 40 CFR 372.28. EPA first created the list of chemicals of special concern to increase the utility of TRI data by ensuring that the data collected and shared through TRI are relevant and topical (64 FR 58666, 58668 October 29, 1999 (FRL-6389-11)). EPA lowered the reporting thresholds for chemicals of special concern because even small quantities of releases of these chemicals can be of concern. The first chemicals that were added to the list of chemicals of special concern were those identified as persistent, bioaccumulative and toxic (PBT) chemicals which, except for the dioxin and dioxin-like compounds category, have reporting thresholds of either 10 or 100 pounds depending on their persistent and bioaccumulative properties (64 FR 58666, October 29, 1999 (FRL-6389-11)). Chemicals of special concern are also excluded from the de minimis exemption, may not be reported on Form A (Alternate Threshold Certification Statement), and have limits on the use of range reporting.

The de minimis exemption allows facilities to disregard small concentrations of TRI chemicals not classified as chemicals of special concern in mixtures or other trade name products when making threshold determinations and release and other waste management calculations. The de minimis exemption does not apply to the manufacture of a TRI chemical except if that chemical is manufactured as an impurity and remains in the product distributed in commerce, or if the chemical is imported below the appropriate de minimis level. The de minimis exemption does not apply to a byproduct manufactured coincidentally as a result of manufacturing, processing, otherwise use, or any waste management activities.

The Form A provides facilities that otherwise meet TRI-reporting thresholds the option of certifying on a simplified reporting form provided that they do not exceed 500 pounds for the total annual reportable amount (subsequently in this document) for that chemical, and that their amounts manufactured, processed, or otherwise used do not exceed 1 million pounds. All chemicals of special concern (except certain instances of reporting lead in stainless steel, brass, or bronze alloys) are excluded from Form A eligibility. Form A does not include any information on releases or other waste management. Nor does it include source reduction information or any other chemical-specific information other than the identity of the chemical.

For certain data elements (Part II, Sections 5, 6.1, and 6.2 of Form R), for chemicals not classified as chemicals of special concern, the reportable quantity may be reported either as an estimate or by using the range codes that have been developed. Currently, TRI reporting provides three reporting ranges: 1-10 pounds, 11-499 pounds, and 500-999 pounds.

The availability of these burden reduction tools is inconsistent with a concern for small quantities of the chemicals and the expanded reporting that was sought for chemicals with lower reporting thresholds. In the preamble to the 1999 rule, EPA outlined the reasons for promulgating the de minimis exemption ( e.g., that facilities had limited access to information and that low concentrations would not contribute to the activity threshold) and determined that those rationales did not apply to chemicals of special concern. Id. at 58670. Among the reasons provided, EPA explained that even minimal releases of persistent bioaccumulative chemicals may result in significant adverse effects and can reasonably be expected to significantly contribute to exceeding the proposed lower threshold. Id. EPA also determined that facilities reporting on chemicals of special concern could not avail themselves of Form A reporting because the information provided on Form As is “insufficient for conducting analyses” on chemicals of special concern and would be “virtually useless for communities interested in assessing risk from releases and other waste management” of such chemicals ( i.e., the Form A does not include estimated release and other waste management quantities). Id. Lastly, EPA eliminated range reporting for chemicals of special concern because the use of ranges could misrepresent data accuracy for PBT chemicals because the low or the high-end range numbers may not really be that close to the estimated value. Id. For the full discussion, see Persistent Bioaccumulative Toxic (PBT) Chemicals; Lowering of Reporting Thresholds for Certain PBT Chemicals; Addition of Certain PBT Chemicals; Community Right-to-Know Toxic Chemical Reporting (Proposed rule January 5, 1999, 64 FR 688 (FRL-6032-3) and Final rule October 29, 1999, 64 FR 58666, (FRL-6389-11)).

EPA is proposing to determine that PFAS added to EPCRA section 313 by sections 7321(b) and 7321(c) of the NDAA should be categorized as chemicals of special concern and added to the list in 40 CFR 372.28. The NDAA set a 100-pound reporting threshold for PFAS added by sections 7321(b) and 7321(c), which indicates a concern for small quantities of such PFAS. EPA is therefore proposing to determine that the availability of certain burden reduction tools ( i.e., de minimis levels, Form A, and range reporting) are not justified for these chemicals as the availability of these tools is inconsistent with a concern for small quantities.

Further, due to the strength of the carbon-fluorine bonds, many PFAS can be very persistent in the environment (Refs. 2, 3, and 6). Persistence in the environment allows PFAS concentrations to build up over time; thus, even small releases can be of concern. As with PBT chemicals, permitting reporting facilities to continue to rely on the burden reduction tools ( de minimis levels, Form A, and range reporting) would eliminate reporting on potentially significant quantities of the listed PFAS. As explained in more detail below, EPA's rationale for eliminating these burden reduction tools for PBT chemicals (January 5, 1999, 64 FR 714-716) applies equally well to PFAS.

The de minimis exemption allows facilities to disregard concentrations of TRI listed chemicals below 1% (0.1% for carcinogens) in mixtures or other trade name products they import, process, or otherwise use in making threshold calculations and release and other waste management determinations. Since the de minimis level is based on relative concentration rather than a specific amount, the application of this exemption to PFAS listed under sections 7321(b) and 7321(c) could allow significant quantities of such PFAS to be excluded from TRI reporting by facilities. For example, if a facility imports, processes, or otherwise uses 100,000 pounds of a mixture or trade name product that contains 0.5% of a listed PFAS, then 500 pounds (or five times the reporting threshold) would be disregarded. This exclusion is inconsistent with a concern for small quantities of PFAS. Many PFAS are used in products below the established de minimis levels (Refs. 4 and 7), and the continued availability of the exemption for PFAS would permit facilities to discount those uses when determining whether an applicable threshold has been met to trigger reporting.

The Form A provides certain covered facilities the option of submitting a substantially shorter form with a reduced reporting burden (Ref. 8). For example, the Form A does not require facilities to report any information on releases ( e.g., releases through fugitive or non-point air emissions, discharges to streams or water bodies) or waste management quantities. Facilities can qualify to file a Form A if the total annual reportable amount for the listed chemical does not exceed 500 pounds, and the amounts manufactured, processed, or otherwise used do not exceed 1 million pounds. The reportable amounts include amounts released at the facility (including disposed of within the facility), treated at the facility (as represented by amounts destroyed or converted by treatment processes), recovered at the facility as a result of recycling operations, combusted for the purpose of energy recovery at the facility, and amounts transferred from the facility to off-site locations for the purpose of recycling, energy recovery, treatment, and/or disposal. This means that facilities that are required to report data on PFAS and also qualify to file a Form A will not be providing specific quantity data on up to 500 pounds of a listed PFAS (five times the reporting threshold). For reporting year 2020, approximately 10% of the reporting forms submitted for the listed PFAS were Form As ( i.e., reporting for TRI reflects 93 active reporting forms of which 84 were Form Rs and 9 were Form As).

While the Form A does provide some general information on the quantities of the chemical that the facility manages as waste, this information may be insufficient for conducting analyses on PFAS and may be less meaningful for communities interested in assessing risk from releases of PFAS. The threshold category for amounts managed as waste does not include quantities released to the environment as a result of remedial actions or catastrophic events not associated with production processes (section 8.8 of Form R). Thus, the waste threshold category in Form A does not include all releases. Given that even small quantities of PFAS may result in elevated concentrations in the environment, EPA believes it would be inappropriate to allow a reporting option that would exclude information on some releases. Thus, removing the availability of the use of Form A for PFAS is consistent with a concern for understanding small quantities of PFAS.

For TRI-listed chemicals, other than chemicals of special concern, releases and off-site transfers for further waste management of less than 1,000 pounds can be reported using ranges or as a whole number. The reporting ranges are: 1-10 pounds; 11-499 pounds; and 500-999 pounds. For larger releases and offsite transfers for further waste management of the toxic chemical, the facility must report the whole number. Use of ranges could reduce data accuracy because the low or the high-end range numbers may not be that close to the estimated value, even taking into account inherent data errors ( i.e., errors in measurements and developing estimates). For PFAS, it is important to have accurate data regarding the amount released even when the quantities are relatively small, since concern may be tied to even small quantities of a substance. This issue was apparent for PFAS for reporting year 2020 since much of the data reported was for less than 1,000 pounds.

EPA anticipates that the elimination of these burden reduction tools will increase the amount and quality of data collected for PFAS and is consistent with the concern for small quantities of PFAS (Ref. 1).

EPA is also proposing to eliminate the use of the de minimis exemption under the Supplier Notification Requirements at 40 CFR 372.45(d)(1) for all substances on the list of chemicals of special concern. EPA extended the de minimis exemption to the supplier notification requirement in its initial TRI reporting rule (February 16, 1988, 53 FR 4500) (FRL-3298-2). The revised text would read as follows:

The de minimis exemption to the Supplier Notification Requirements allows suppliers to not provide notifications for mixtures or trade name products containing the listed toxic chemicals if the chemicals are present at concentrations below 1% of the mixture (0.1% for carcinogens). The de minimis exemption is not a small quantity exemption, it is a small concentration exemption. Therefore, it is possible that significant quantities of chemicals of special concern can be overlooked by reporting facilities if suppliers can use the de minimis exemption. For example, if a mixture or trade name product contains 0.9% of a listed PFAS and 100,000 pounds of the product is purchased, the supplier need not provide notification and the purchaser could be unaware of and not account for 900 pounds of PFAS. The impact of this exemption for the PBT chemicals with 10-pound reporting thresholds is even greater. Using the same 100,000-pound example, if mercury were present at 0.9% then that same 900 pounds would be 90 times the mercury reporting threshold.

It is also possible that quantities of chemicals of special concern would be included in supplier notifications by reporting facilities if suppliers cannot use the de minimis exemption. For example, if a mixture or trade name product contains 0.9% of a listed PFAS and 1,000 pounds of the product is purchased, the supplier would need to provide notification for 9 pounds of PFAS. This would also impact PBT chemicals with 10-pound reporting thresholds. Using the same 1,000-pound example, if mercury was present at 0.9% then that same 9 pounds would be below the mercury reporting threshold. However, such quantities may become reportable, in aggregate, if a reporting entity receives multiple shipments (including from multiple suppliers) of a given product in a year and performs a threshold activity in excess of the TRI reporting threshold. Further, TRI supplier notification regulations do not require a person to consider the total quantity of the chemical being supplied but rather require the person to consider the concentration of the chemical in the product or mixture. Including a consideration of quantity rather than concentration shipped would complicate as well as reduce the ability of supplier notifications to inform downstream recipients of products and mixtures containing a TRI-listed chemical.

EPA considered whether to include a small quantity exemption in lieu of a de minimis exemption for supplier notification. However, EPA is concerned that such an exemption would not provide adequate information to facilities receiving multiple shipments over the course of a year to address TRI reporting requirements that may apply to them, based on the total aggregated quantity received. Without such information on the TRI-listed chemical, the receiving facility may not have sufficient data to inform potential TRI reporting obligations.

Many PFAS are used in products below the established de minimis levels (Refs. 4 and 7) which results in users of those products not knowing they are receiving a product that contains a TRI reportable PFAS. PFAS reports received for the TRI 2020 reporting year were mostly from manufacturers and waste disposal facilities which suggests that the de minimis exemption may have been used by most users and processors ( https://www.epa.gov/toxics-release-inventory-tri-program/find-understand-and-use-tri ). EPA has concluded that it is important and necessary to eliminate the supplier notification de minimis exemption for PFAS added to the TRI list pursuant to sections 7321(b) and 7321(c) of the NDAA because if that exemption were to remain in place the Agency may fail to collect information on amounts of PFAS that significantly exceed the reporting threshold.

In addition, eliminating the use of the de minimis exemption for supplier notification purposes for all other chemicals of special concern will ensure that potentially significant quantities of such chemicals do not get overlooked by reporting facilities. The PBT chemicals and chemical categories that are classified as chemicals of special concern, and thus would also be impacted by this change, are as follows:

• Aldrin (CASRN: 309-00-2);

• Benzo[g,h,i]perylene (CASRN: 191-24-2);

• Chlordane (CASRN: 57-74-9);

• Dioxin and dioxin-like compounds category (manufacturing; and the processing or otherwise use of dioxin and dioxin-like compounds category if the dioxin and dioxin-like compounds are present as contaminants in a chemical and if they were created during the manufacturing of that chemical) (TRI Category Code: N150);

• Heptachlor (CASRN: 76-44-8);

• Hexabromocyclododecane category (TRI Category Code: N270);

• Hexachlorobenzene (CASRN: 118-74-1);

• Isodrin (CASRN: 465-73-6);

• Lead (this lower threshold does not apply to lead when it is contained in stainless steel, brass or bronze alloy) (CASRN: 7439-92-1);

• Lead compounds category (TRI Category Code: N420);

• Mercury (CASRN: 7439-97-6);

• Mercury compounds category (TRI Category Code: N458);

• Methoxychlor (CASRN: 72-43-5);

• Octachlorostyrene (CASRN: 29082-74-4);

• Pendimethalin (CASRN: 40487-42-1);

• Pentachlorobenzene (CASRN: 608-93-5);

• Polychlorinated biphenyls (CASRN: 1336-36-3);

• Polycyclic aromatic compounds category (PACs) (TRI Category Code: N590);

• Tetrabromobisphenol A (CASRN: 79-94-7);

• Toxaphene (CASRN: 8001-35-2); and

• Trifluralin (CASRN: 1582-09-8).

When EPA established the chemical of special concern list, it decided to not remove the de minimis exemption eligibility from supplier notification requirements, indicating that the Agency believed that there was sufficient information available on PBT chemicals by suppliers. See 64 FR 688 (at 715), January 5, 1999 (FRL-6032-3) and 64 FR 58666 (at 58732), October 29, 1999 (FRL-6389-11). However, EPA has determined that there are situations where this information is not available. For example, the agency has found that there is significant variability in the concentration of PACs in fuels, yet the presence and concentration of PACs in fuel oil is often not provided in supplier notifications or SDSs. Additionally, EPA is aware of metal mixtures and products containing low concentrations of lead (not contained in stainless steel, brass or bronze alloys) whose supplier notifications and SDSs do not state there is lead present in the mixture or product. Further, it is unclear whether downstream purchasers would be made aware of PBT chemicals contained in many products without notification of the presence of such chemicals.

In situations where such information is already available, supplier notifications may already be addressed ( e.g., if such information in already included on an SDS) or the anticipated burden of a supplier to provide such information would be minimal ( i.e., if the information is redundant then the burden to provide such known information should be trivial). However, as noted above, the quantity information EPA proposes to require for de minimis concentrations below the concentration threshold may not be provided in SDSs. OSHA maintains a 1 percent concentration threshold for reporting the presence and concentration of most hazardous chemicals on SDSs. (29 CFR part 1910, subpart Z.) For chronic hazards (with Carcinogenicity, Germ Cell Mutagenicity, and Reproductive Toxicity), OSHA has established a 0.1 percent concentration threshold for reporting the presence and concentration of chemicals on SDSs (29 CFR part 1910, subpart Z.) EPA notes that there may be other reasons for a chemical's exclusion from an SDS, including that a chemical's hazard may not be covered by OSHA, or a chemical may be in an article that is not covered by SDS requirements. EPA believes that any potential increase in new supplier reporting is minimal, particularly regarding non-PFAS chemicals of special concern, but seeks comments on whether new supplier notifications will need to be developed under this proposal, and on any associated impacts.

In the 1999 proposal to establish a chemical of special concern list, EPA also reasoned that entities subject to TRI supplier notification requirements could retain use of the de minimis exemption for PBTs because “[m]any of the chemicals identified as persistent and bioaccumulative in today's action are not imported, processed, or otherwise used but are manufactured as byproducts.” (64 FR 715; January 5, 1999). However, the Agency has since learned that several PBT chemicals are not manufactured as byproducts, and those chemicals are known to be processed for distribution to customers. For example, in Reporting Year 2021, the Agency received 55 Form Rs for tetrabromobisphenol A (TBBPA). None of those forms indicated that TBBPA had been manufactured as a byproduct. However, some forms indicated the TBBPA is processed, including as an article component. Similarly, for Reporting Year 2021, the Agency received 76 Form Rs on polychlorinated biphenyls (PCBs); 64 of those forms did not indicate those PCBs had been manufactured as byproducts, though some forms indicated the PCBs had been processed, including as an article component. Because many PBT chemicals are not manufactured as byproducts and may exist in relatively lower concentrations within products or mixtures, the Agency's initial rationale to allow suppliers to exempt concentrations of PBT chemicals below de minimi s from supplier notification requirements warrants reconsideration. Therefore, EPA is reassessing this exemption and modifying it appropriately to provide TRI facilities with additional information related to quantities of chemicals of special concern that may contribute to their reporting thresholds. EPA has concluded that it is important and necessary to eliminate the supplier notification de minimis exemption for all chemicals of special concern because if that exemption were to remain in place the Agency may fail to collect information on amounts of such chemicals that significantly exceed the reporting threshold.

This proposed action reflects EPA's current understanding of chemical activities involving all chemicals of special concern ( i.e., both PBTs and PFAS).)

Further, as explained above, EPA's understanding is that downstream purchasers of products may lack information on the presence of PFAS in such products. EPA considered limiting the de minimis exception to just PFAS, but creating a patchwork reporting scheme where the de minimis exemption is available for supplier notification purposes for certain chemicals of special concern but not other chemicals of special concern, or pursuant to some other unique TRI reporting designation, would create an unnecessary patchwork of reporting requirements that would unnecessarily complicate supplier notification and TRI reporting requirements. EPA requests comment on the proposal to remove the de minimis eligibility from the supplier notification for all chemicals of special concern and seeks specific information related to the burden and benefits of this proposed change.

The proposed regulatory text would add PFAS currently on TRI pursuant to 7321(b) and 7321(c) of the NDAA to the list of chemicals of special concern. Additionally, the proposed regulatory text would provide that all PFAS added to TRI pursuant to sections 7321(b) and 7321(c), regardless of the date of their addition, will be included on the chemicals of special concern list. Thus, as PFAS continue to be added to TRI pursuant to sections 7321(b) and 7321(c), they will also be added to the list of chemicals of special concern as of the date they are added to the TRI. This includes substances that meet the criteria pursuant to 7321(b) and 7321(c) but are claimed confidential, and the Agency must follow the process outlined in section 7321(e) of the NDAA to address the claim of confidentiality.

As with PFAS currently on the TRI list, future PFAS added to the TRI list under 7321(b) and 7321(c) will have a 100-pound reporting threshold, per sections 7321(b)(2)(A) and 7321(c)(2)(B). Congress' use of this low reporting threshold demonstrates a concern for even relatively small quantities of these PFAS. Therefore, EPA has concluded that it is appropriate for all PFAS added to the TRI list under these provisions to be added to the chemicals of special concern list upon listing. If these PFAS were not added to the chemicals of special concern list at the time of their addition to the TRI list, there would be a delay in the reporting requirements while EPA conducts a rulemaking simply to add them to the chemicals of special concern list. This would result in differences in how previously listed PFAS and newly listed PFAS are treated even though they were automatically listed with the same reporting thresholds. EPA is proposing regulatory text that would add those PFAS added pursuant to 7321(b) and 7321(c) to the chemicals of special concern list upon their addition to the TRI list. EPA requests comment on whether the addition of these PFAS to the chemicals of special concern list should occur upon addition to the TRI list and on the proposed regulatory text.

EPA is not proposing a definition of PFAS as part of this rulemaking. This rulemaking only concerns chemical substances added to the TRI by sections 7321(b) and 7321(c) of the NDAA, neither of which require EPA to provide a definition of PFAS. Section 7321(b) added by name and/or CASRN specific PFAS to the TRI list and sections 7321(b) and (c) identify EPA activities involving PFAS that would cause a PFAS to be added to the TRI list. The activities described by sections 7321(b) and (c) indicate whether they pertain to a PFAS, and thus a separate determination of whether or not the covered activity involves a PFAS is not necessary. EPA is therefore not proposing a definition of PFAS for purposes of this rulemaking, and issues relating to the definition of PFAS are outside the scope of this rulemaking. EPA requests comment on EPA's interpretation that a definition is unnecessary to this rulemaking. EPA will consider the need for a PFAS definition for a purpose other than the NDAA section 7321(b) and (c) listings, should the need for such a definition arise.

PFAS may be added to TRI via methods other than NDAA sections 7321(b) and (c) and this proposal does not address whether PFAS added through such alternative methods should be listed as chemicals of special concern. For example, any PFAS added via section 7321(d)(3) of the NDAA would not be impacted by the regulatory text proposed here. Unlike sections 7321(b) and 7321(c) of the NDAA, Congress did not establish a reporting threshold of 100 pounds for substances added via section 7321(d)(3) of the NDAA. EPA will consider whether it is appropriate to identify these substances as chemicals of special concern when it takes action to add such substances under section 7321(d)(3) of the NDAA.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not itself physically located in the docket. For assistance in locating these other documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

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

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB recommendations have been documented in the docket. EPA prepared an economic analysis of the potential costs and benefits associated with this action. This analysis (Ref. 1) is available in the docket and summarized in Unit I.E.

The new information collection activities in this proposed rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et seq. The information Collection Request (ICR) document that EPA prepared is assigned EPA ICR No. 2724.01 (Ref. 9). You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

Currently, the facilities subject to the reporting requirements under EPCRA section 313 and PPA section 6607 may use either EPA Toxic Chemicals Release Inventory Form R (EPA Form 1B9350-1), or EPA Toxic Chemicals Release Inventory Form A (EPA Form 1B9350- 2). The Form R must be completed if a facility manufactures, processes, or otherwise uses any listed chemical above threshold quantities and meets certain other criteria. For the Form A, EPA established an alternative threshold for facilities with low annual reportable amounts of a listed toxic chemical. A facility that meets the appropriate reporting thresholds, but estimates that the total annual reportable amount of the chemical does not exceed 500 pounds per year, can take advantage of an alternative manufacture, process, or otherwise use threshold of 1 million pounds per year of the chemical, provided that certain conditions are met, and submit the Form A instead of the Form R. In addition, respondents may designate the specific chemical identity of a substance as a trade secret pursuant to EPCRA section 322 (42 U.S.C. 11042) and 40 CFR part 350. OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control number 2070-0212 (EPA ICR No. 2613.04) and those related to trade secret designations under OMB Control 2050-0078 (EPA ICR No. 1428). As such, this ICR is intended to amend the existing ICR to include the following additional details:

• Respondents/affected entities: Facilities covered under EPCRA section 313 that manufacture, process or otherwise use listed PFAS (See Unit I.A.).

• Respondent's obligation to respond: Mandatory (EPCRA section 313).

• Estimated number of respondents: 605 to 1,997.

• Frequency of response: Annual.

• Total estimated burden: 45,363 and 149,737 burden hours in the first year and approximately 21,602 and 71,303 burden hours in the steady state. Burden is defined at 5 CFR 1320.3(b).

• Total estimated cost: Approximately $3,064,271 and $10,114,734 in the first year of reporting and approximately $1,459,215 and $4,816,518 in the steady state.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA regulations in 40 CFR are listed in 40 CFR part 9.

Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this proposed rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs using the interface at https://www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than January 4, 2023. EPA will respond to any ICR-related comments in the final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. The small entities subject to the requirements of this action are primarily classified within the manufacturing and waste management industry sectors. The Agency has determined that of the 605 to 1,997 entities estimated to be impacted by this action, 467 to 1,313 are small businesses; no small governments or small organizations are expected to be affected by this action. The average cost per small firm is $2,714 (at a 3% discount rate) or $2,765 (at a 7% discount rate). The total cost for small entities is $1,267,363-$3,563,272 (at a 3% discount rate) or $1,291,213-$3,630,327 (at a 7% discount rate). All small businesses affected by this action are estimated to incur annualized cost impacts of less than 1%. Even under a worst-case scenario comparing compliance costs to average revenue of firms with between 10 (smallest number required to report) and 14 employees instead of comparing compliance costs to the weighted average revenue of small firms, there are still no costs that exceed the 1% impact threshold. Thus, this action is not expected to have a significant adverse economic impact on a substantial number of small entities. A more detailed analysis of the impacts on small entities is provided in EPA's economic analysis (Ref. 1).

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action is not subject to the requirements of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. EPA did not identify any small governments that would be impacted by this action. EPA's economic analysis indicates that the total cost of this action is estimated to be from $3,064,271 and $10,114,734 in the first year of reporting and from $1,459,215 and $4,816,518 in subsequent reporting years (Ref. 1).

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have Tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern any environmental health risks or safety risks.

This action is not a “significant energy action” as specified in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

This rulemaking does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations.

The EPA believes that this type of action does not directly concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples. This regulatory action makes changes to the reporting requirements for PFAS that will result in more information being collected and provided to the public; it does not have any direct impact on human health or the environment. This action does not address any human health or environmental risks and does not affect the level of protection provided to human health or the environment. This action makes changes to the reporting requirements for PFAS which will provide more information on releases and waste management of PFAS. By requiring reporting of this additional information, EPA would be providing communities across the U.S. (including minority populations and low-income populations) with access to data which they may use to seek lower exposures and consequently reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the informational benefits of the action will have a positive impact on the human health and environmental impacts of minority populations, low-income populations, and indigenous peoples.

Therefore, for the reasons stated in the preamble, it is proposed that 40 CFR chapter I be amended as follows:

The additions and revisions read as follows:

NMFS and the Council manage fisheries in the U.S. Exclusive Economic Zone (EEZ, or Federal waters) around Hawaii under the Fishery Ecosystem Plan for the Hawaiian Archipelago (FEP), as authorized by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), with regulations at 50 CFR part 665. The FEP contains a process for the Council and NMFS to specify ACLs and AMs, codified at 50 CFR 665.4. NMFS must specify ACLs and AMs for each stock and stock complex of management unit species (MUS) in an FEP, as recommended by the Council and considering the best available scientific, commercial, and other information about the fishery. If a fishery exceeds an ACL, the regulations require the Council to take action, which may include an AM reducing the ACL for the subsequent fishing year by the amount of the overage, or other appropriate action.

This proposed rule would establish the following ACLs for MHI deepwater shrimp and precious coral for each fishing year in the time period between 2022 and 2025 and they are consistent with past ACLs for these fisheries:

This proposed rule is consistent with recommendations made by the Council at its March 2022 meeting. The Council recommended that NMFS implement ACLs and AMs for all subject stocks for each fishing year in the time period between 2022 and 2025. The fishing year is the calendar year for deepwater shrimp and July 1 through June 30 for precious coral.

As a post-season AM for each stock, NMFS and the Council will evaluate the catch after each fishing year relative to the ACL. If NMFS and Council determine the average catch of the three most recent years exceeds an ACL, NMFS will reduce the ACL for the subsequent fishing year through a separate rulemaking. These proposed 2022-2025 ACLs are unchanged from past deepwater shrimp and precious coral ACLs. The subject fisheries have not caught their specified ACLs in any year since the ACLs were first implemented in 2012. There are currently two active Federal permits for the deepwater shrimp fishery and none for precious coral.

NMFS will consider public comments on this proposed rule and will announce the final rule in the Federal Register . NMFS must receive any comments by the date provided in the DATES section above. Regardless of the final rule, all other management measures will continue to apply in the fisheries.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FEP, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, issued under the authority of the Magnuson-Stevens Act, would not have a significant economic impact on a substantial number of small entities. This proposed rule would specify ACLs and AMs for Hawaii deepwater shrimp for 2022, 2023, 2024, and 2025 and for Hawaii precious corals for 2022-2023, 2023-2024, and 2024-2025. The proposed ACLs for each fishing year in the time period between 2022 and 2025 would be as follows:

• Hawaii deepwater shrimp: 250,773 lb;

• Auau Channel black coral: 5,512 lb;

• Makapuu Bed Established Bed pink coral: 2,205 lb;

• Makapuu Bed Established Bed bamboo coral: 551 lb;

• 180 Fathom Bank Conditional Bed pink coral: 489 lb;

• 180 Fathom Bank Conditional Bed bamboo coral: 123 lb;

• Brooks Bank Conditional Bed pink coral: 979 lb;

• Brooks Bank Conditional Bed bamboo coral: 245 lb;

• Kaena Point Conditional Bed pink coral: 148 lb;

• Kaena Point Conditional Bed bamboo coral: 37 lb;

• Keahole Conditional Bed pink coral: 148 lb;

• Keahole Conditional Bed bamboo coral: 37 lb;

• Hawaii Exploratory Area pink coral: 2,205 lb;

• Hawaii Exploratory Area bamboo coral: 2,205 lb.

Catch of Hawaii deepwater shrimp and precious corals in state and Federal waters would all count toward the ACLs under this action. This would include catch by anyone who is required to report catch to state or Federal agencies. In recent years, a range of three to ten fishermen participated in the Hawaii deepwater shrimp fishery, while no more than one or two fishermen participated in the precious corals fishery. This action would likely apply to 12 or fewer fishermen across Hawaii.

With respect to deepwater shrimp, based on the recent average annual landings of 8,819 lb from 2019 through 2021 and using the average price over the 2018-2021 time-frame of $8.63, the annual commercial value of the fishery is approximately $76,108. With an estimated 3 to 10 vessels having fished for deepwater shrimp in recent years, NMFS estimates that the average revenue for each vessel would range from $7,611 to $25,369.

Recent estimates of black coral values suggest prices per pound from 2000 to 2020 were $36.30 per pound on average, suggesting that recent revenue could range anywhere from approximately $10,000 to $25,000 annually, depending on the price. The pink and bamboo coral fisheries have been inactive for at least 20 years.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. Based on available information, NMFS has determined that all affected entities are small entities under the SBA definition of a small entity, i.e., they are engaged in the business of fish harvesting, are independently owned or operated, are not dominant in their field of operation, and have gross receipts not in excess of $11 million. Therefore, there would be no disproportionate economic impacts between large and small entities. Furthermore, there would be no disproportionate economic impacts among the universe of vessels based on gear, home port, or vessel length.

Because the proposed ACLs are the same as those implemented in recent years, and since recent catch has not been constrained by ACLs, this proposed action is not expected to affect participants of these fisheries. Neither would this proposed action disproportionately affect vessels by gear types, areas fished, or home ports. Thus, this action would not result in significant economic impacts to fishery participants. Furthermore, NMFS and the Council are not considering in-season closures for these fisheries because fishery management agencies are not able to track catch relative to the ACLs during the fishing year. Therefore, there is no potential for effects on fishermen from a closure of the deepwater shrimp and precious coral fisheries. A post-season review of the catch data would be required to determine whether any fishery exceeded its ACL by comparing the ACL to the most recent three-year average catch for which data is available. If an ACL is exceeded, the Council and NMFS would take action to mitigate the overage by reducing the ACL for that fishery in the subsequent year. If an ACL is exceeded more than once in a four-year period, the Council and NMFS would take action to correct the operational issue that caused the ACL overages. NMFS and the Council would evaluate the environmental, social, and economic impacts of future actions, such as changes to future ACLs or AMs, after the required data are available.

Therefore, fishermen in the deepwater shrimp and precious coral fisheries should be able to fish throughout the entire year. The ACLs, as proposed, would not change the gear type, areas fished, effort, or participation of the fisheries during the fishing years under consideration. The proposed action does not duplicate, overlap, or conflict with other Federal rules. For all of these reasons, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 665 as follows: