This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposal is issued under Marketing Order No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Part 930 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and is comprised of growers and handlers of tart cherries operating within the production area and a public member.

The Agricultural Marketing Service (AMS) is issuing this proposed rulemaking in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This proposed rulemaking has been reviewed under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined this proposed rulemaking is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

This proposed rulemaking has been reviewed under Executive Order 12988, Civil Justice Reform. This rulemaking is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 8c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) (Pub. L. 110-246) amended section 8c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of section 8c(17) of the Act and the supplemental rules of practice at 7 CFR 900.43 authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders depending upon the nature and complexity of the proposed amendments, the potential regulatory and economic impacts on affected entities, and any other relevant matters.

AMS has considered these factors and has determined that the amendments proposed herein are not unduly complex and the nature of the proposed amendments is appropriate for utilizing the informal rulemaking process to amend the Order. This proposed rulemaking encompasses a number of changes that are primarily administrative and modernizing in nature. These changes would clarify regulatory text or align it with current industry practices. Changes would also simplify the administration of seating the Board. In addition, as discussed in the “Final Regulatory Flexibility Analysis” section below, this proposed rule is not anticipated to impose any new costs on affected entities. The amendments would apply equally to all producers and handlers, regardless of size. The proposed amendments also have no additional impact on the reporting, record-keeping, or compliance costs of small businesses.

The Board unanimously recommended all the proposed amendments to the Order following deliberations at a public meeting held on February 15, 2022, except one dissenting vote on the method for establishing a member's sales constituency. The Board submitted its formal recommendation to amend the Order through the informal rulemaking process on April 8, 2022. At USDA's request, the Board conducted an additional meeting on December 15, 2022, to publicly clarify its original intent that the sales constituency provisions of the proposal would apply to both growers and handlers, and that sales constituency would be established at the time of nomination. Specifically, the Board adjusted the language of the initial recommendation for when a member's sales constituency is established from “nomination and appointment” to just at the time of “nomination.” The Board then unanimously voted to clarify that the established sales constituency applies to both handlers and growers for the duration of the term of office. A separate vote to remove the words “and appointment” from the language had one dissenting individual who believed sales constituency should be calculated at the time of appointment.

A proposed rulemaking soliciting public comments on the proposed amendments was published in the Federal Register on December 4, 2023 (88 FR 84075). AMS received one comment from the Wisconsin Department of Agriculture in support of all proposals in the proposed rulemaking, noting the proposed changes would favorably impact the Wisconsin cherry industry. AMS also received one comment from a Michigan handler who was specifically against Proposal 1 of the proposed rulemaking. The handler believed that this amendment would require that Board seat allocations be calculated by the averaging of the previous five years' production, which the handler asserted would yield insufficient representation for District 1. The handler felt the appropriate representation for District 1 should be four seats based on the district's annual tart cherry production from 2019 to 2023. However, Proposal 1 would no longer use a district's average annual production to determine its representation on the Board, and would instead use the district's highest annual production volume within a five-year period ( e.g., 2019 to 2023). Indeed, under the proposal, District 1 would, in fact, be allocated four seats for the next four years based on the district's recent maximum production.

Based on all the information available to AMS at this time, including the comments received in response to the proposed rulemaking, no changes will be made to the proposed amendments.

AMS will conduct a producer and handler (processor) referendum to determine support for the proposed amendments. If appropriate, a final rule will then be issued to effectuate the amendments, if they are favored by producers and handlers in the referendum.

The proposed rulemaking would:

• Modify the method for allocating Board seats to a district so that it is based on the district's maximum volume of production in the most recent five harvests (Proposal 1);

• Change the starting date for the term of office for Board members (Proposal 2);

• Modify the basis for determining a Board member's sales constituency when a member has multiple affiliations (Proposal 3);

• Clarify how sales constituency applies to alternate Board members (Proposal 4);

• Adjust the timeframe for submitting nominations to USDA (Proposal 5); and

• Clarify when districts are subject to the Order's volume regulations (Proposal 6).

Section 930.20 establishes the Board and provides a method for calculating its membership, which is drawn from nine subdivisions (or “districts”) in the production area. Section 930.20(b) states that district representation on the Board is based on the previous three-year average production in the district and may vary depending on the production levels of the district. If the three-year average production in a district changes so that a different number of seats should be allocated to it, § 930.20(f) states that the Board's membership must be adjusted accordingly. Currently, the Board is required to calculate the three-year average production in each of the nine districts annually. This updated yearly calculation of the three-year average may result in a change to the number of representative seats in a given district.

This method for determining the Board's membership has proved to be inefficient and costly. If the Board's calculation of the three-year average production in a district reduces the number of seats for the district, the members of that district follow the procedures specified in § 930.120 and recommend to the Board who among them should be removed from office. The Board then makes a recommendation to the Secretary for approval of the member and alternate to be removed from the Board. This process is time-intensive and disrupts the continuity of the Board's operations by removing members and alternates from the Board as frequently as every year. If the new three-year average calculation results in an increase to a district's representation on the Board, the Board staff would conduct an election in that district to fill the newly established seat. This process costs the Board significant time and financial resources because it requires conducting additional outreach and nominations annually. Consequently, the Board discussed ways to alter § 930.20 to provide a more sustainable method for calculating its membership.

The Board recommended modifying § 930.20(b) so that district representation on the Board is based on each district's maximum production in the most recent five harvest periods, rather than on the district's average production over the previous three years. The Board further recommended that the proposed calculation would commence from the first season's harvest following implementation of this action. In addition, § 930.20(f) would be revised to specify that each district's maximum production for the most recent five harvests would be determined every five years and as soon as possible after the most recent year's production is known. Production numbers would be calculated after the Board receives final reports in early September. The five-harvest periods for calculating maximum volume for each district would continue in perpetuity until otherwise modified through a Board recommendation and rulemaking. The choice of the five-year period is based on balancing the interests of the industry. A five-year period would provide continuity of district representation on the Board, yet it would also allow trends and/or changes impacting tart cherry production to be accommodated periodically.

The Board also recommended amending § 930.20 to insert two new subsections, § 930.20(g) and 930.20(h). Section 930.20(g) would further clarify that in the event a district experiences substantial changes requiring reconsideration of the number of seats in the district, the Secretary, based on the Board's recommendation, could allocate a different number of seats to the district. In deciding whether to make any such recommendation, the Board would consider several factors. These factors would include shifts in the tart cherry acreage and/or the number of bearing trees within districts and within the production area during recent years, the volume of tart cherries produced in the district, the importance of either increased or decreased production in its relation to existing districts, the equitable relationship of Board membership and districts, enhanced economies to producers through more efficient administration of Board reapportionments, and other relevant factors.

Additionally, § 930.20(h) would state that no change in the number of seats allocated to a district could become effective less than 30 days prior to the date on which the term of office begins each year, and no recommendation for a change in allocated seats could be made less than six months prior to such date. Current § 930.20(g), (h), and (i) would be redesignated § 930.20(i), (j), and (k), respectively.

The Board considered alternatives to the proposed five-year period for determining a district's maximum production, including 3-year and 10-year periods. The Board assessed each period and cross-compared historical production data to review the hypothetical impact of these options on district representation levels. The Board determined the five-year period calculation as optimal because it induced the least volatility in the seat allocations to each district. Ultimately, the Board believes this proposal would stabilize its composition and improve the efficiency of its operations.

Section 930.22 states that the term of office for Board members and alternates is three fiscal years. Section 930.7 defines a fiscal year as the 12-month period beginning on July 1 of any year and ending on June 30 of the following year. These dates have been used as the beginning and end dates for the term of office since the inception of the Order. Proposal 2 would adjust the term of office to start on June 1 and end on May 31 of the third subsequent year. This change would allow for activities such as Board forecasting, planning, and final recommendations for the optimum supply volume to be conducted by the same membership, which industry believes will improve Board operations. The optimum supply volume is referred to by the Board as the Optimum Supply Formula (OSF).

Under the Order's current marketing policy located in § 930.50, the Board is required to meet on or about July 1 of each crop year to establish a preliminary free market tonnage percentage and a preliminary restricted percentage, and to meet again no later than September 15 to make any modifications to the preliminary percentages based on consideration of actual production data, inventories, and other current economic information. Therefore, the final OSF recommendation incorporates the updated market data, and the Board reviews the preliminary estimates calculated by the prior Board membership during its June meeting (which is when the Board typically holds the meeting required to be held on or about July 1). However, the preliminary recommendation from its June meeting can impact industry operations during harvest in July and August.

Therefore, to establish greater continuity of Board operations that is stabilizing for industry, the Board recommended changing § 930.22 so the term of office would be three years, starting on June 1 and ending on May 31 of the third subsequent year, prior to the start of the crop year. This would allow the same Board members to calculate both the preliminary estimate and the final OSF recommendation.

In addition, the Board usually formulates its budget and assessment rates for the upcoming season at its June meeting. With this change, the newly seated Board would also be making these decisions.

This proposal would clarify how the term “sales constituency” is applied to growers and handlers. As defined in § 930.16, a sales constituency is a common marketing organization, brokerage firm, or individual representing a group of handlers and growers. An organization that receives consignments of cherries but does not direct where the consigned cherries are sold is not a sales constituency. The determination of a Board member's (or prospective Board member's) sales constituency is important because, in a district with multiple Board members, only one member may be from a given sales constituency. This limitation is intended “to achieve a fair and balanced representation on the Board” and “to prevent any one sales constituency from gaining control of the Board” (7 CFR 930.20(g)).

The lack of additional guidance in the Order relating to sales constituency determinations has created significant challenges. First, the lack of guidance has led to confusion in the industry about how these determinations should be made. In addition, under the current regulatory criteria, Board members and nominees may be found to have multiple sales constituencies since many growers and handlers conduct business with several entities at the same time. Further, these business transactions may change year-to-year, or even within a year. The complicated and volatile nature of sales constituency determinations under the current rules means that Board members may become ineligible to serve before their terms expire, and this contributes to high turnover rates among members. These issues have also made it increasingly difficult to identify qualified candidates to serve on the Board, exacerbating the economic conditions that have caused the tart cherry industry to shrink over time.

The proposal would address these problems by simplifying sales constituency determinations and by providing that such determinations, once made at the time of a prospective member's nomination, would remain in place until the end of the member's term of office. Specifically, this proposal would amend § 930.23(b) to provide that a grower's sales constituency is determined by the handler that purchases the “majority of pounds” of the grower's cherries at the time of their nomination. A handler's sales constituency would be the entity that directs the sales of its cherries, which is commonly the handler itself. Sales constituency determinations for growers and handlers would be based on the most recently harvested crop at the time of nomination. This assigned sales constituency would remain in effect throughout the grower's or handler's term of office. Since growers and handlers do business with multiple entities, this clarification would standardize the process for determining sales constituency and ensure that the sales constituency relationship would remain in place throughout a member's three-year term of office. Therefore, the Board recommended this proposal to address industry confusion on how to accurately determine a nominee's sales constituency relationship.

This proposal will help keep the sales constituency static throughout the term of office and stabilize Board membership, thereby reducing turnover interruptions prior to the term of office ending for the member. As explained above, this stability is becoming more important given business attrition and the economic conditions that contribute to the shrinking of the tart cherry industry over time, which has made identifying qualified candidates to serve on the Board increasingly more difficult. In sum, the Board seeks to limit the impact of any single sales constituency and maintain a wide array of perspectives and industry interests while simultaneously incorporating the flexibility to fully seat the Board. This proposal would promote diverse Board representation to reflect industry's business interests while retaining the capacity to seat diverse representation for the entire three-year term of office in each district. This proposal also makes clear that both handlers and growers are subject to sales constituency requirements.

Section 930.28 establishes the criteria to seat an alternate member at a Board meeting during the absence of the member for whom that member serves as an alternate. The current language does not include any provision that incorporates sales constituency with regard to alternate members being seated. This proposal clarifies the interpretation of the regulatory language regarding who may represent a member seat within a district, and the intent of industry on nominating and seating an alternate member. When the Order was initially established, the intent of industry regarding sales constituencies was to permit the seating of alternate members even though they were of the same sales constituency as the member for whom they serve as an alternate. It was understood that members of the same sales constituency could occupy the member and the corresponding alternate seat for that chair on the Board. The proposed amendment would confirm this original interpretation of the sales constituency limitation and clarify when an alternate may serve in place of a member.

Before 2018, the Board's policy was to allow members and their alternates to be from the same sales constituency, even though this practice was not explicitly codified. However, in 2018 a district court issued an order that disapproved of this practice. In Burnette Foods Inc. v. U.S. Department of Agriculture, the United States District Court for the Western District of Michigan held that CherrCo, Inc., a grower cooperative, was a sales constituency. Burnette Foods, Inc. v. U.S. Department of Agriculture, No. 1:16-cv-21, 2018 WL 538583, at *4 (W.D. Mich. Jan. 24, 2018). In connection with this holding, the court issued an order stating that “Not more than one Board member ( including an alternate Board member ) may be from, or affiliated with, CherrCo in those districts having more than one seat on the Board.” Burnette Foods, ECF No. 51 (Mar. 9, 2018) (emphasis added).

USDA's implementation of the district court's order made it difficult to find and seat representatives on the Board who did not have a “constituency conflict” (that is, a shared sales constituency) with other members and alternates on the Board. Under USDA's implementation of the order, sales of cherries by a grower to more than one handler required that all such handler relationships be considered in assessing constituency conflicts. All these grower relationships were compared to all constituencies of other members and alternates serving on the Board from a multi-seat district, including the member holding the seat for which an alternate was standing for nomination and election. With this interpretation, if any conflict existed between a candidate and any other Board representative in the same district, alternates included, the candidate could not be nominated for appointment to the Board.

USDA appealed the district court's decision to the United States Court of Appeals for the Sixth Circuit, which reversed the district court's judgment and remanded the case for entry of judgment in USDA's favor. Burnette Foods, Inc. v. U.S. Department of Agriculture, 920 F.3d 461, 464, 470 (6th Cir. 2019). However, because the Sixth Circuit ruled in USDA's favor on a preliminary issue, it did not address the question of whether (or how) the sales constituency limitation in § 930.20(g) applies to alternate members.

To clarify this issue, the Board recommended adding language to § 930.28 to explicitly state how the sales constituency limitation applies to alternate members. Currently, § 930.20(g) provides that any conflict of sales constituency in a district for Board members is not allowed. The current language in § 930.20(g) does not address how an alternate's sales constituency affects a member's qualification to serve. The proposed amendment to § 930.28 would add the necessary language to clarify the Board's intentions when seating alternate members.

As previously mentioned, attrition and difficult economic conditions are shrinking the tart cherry industry. In 2021 and 2022, three tart cherry handling operations closed. The Board also recently had open alternate seats as a result of the lawsuit surrounding the sales constituency clause. Finding and electing candidates to serve has become increasingly more difficult. The current process of determining sales constituency adds to this difficulty, especially when a member's sales constituency may change yearly, and the existing process significantly limits the availability of qualified candidates. To seat a functioning Board that appropriately represents growers and handlers from their corresponding districts, the Board believes that members of the same sales constituency must be allowed to sit as member and alternate on the Board. This was commonly understood by industry as how the Order was originally intended to operate. This is also how industry interpreted the Order until 2018.

This amendment would clarify the regulations and confirm these original intentions and the interpretation of sales constituency for alternates. The proposal would reclassify the original paragraph comprising § 930.28 as § 930.28(a), and add two new paragraphs §§ 930.28(b) and 930.28(c). Section 930.28(b) would state that alternate members may be from the same sales constituency as the member for whom they serve as an alternate. It would also provide that, if a member and their alternate are absent from a meeting of the Board, another alternate of a different district may act for the member following the requirements of § 930.28(a), provided this does not create a sales constituency conflict with the other members of that district. Section 930.28(c) would allow the Board, with the approval of the Secretary, to establish rules and regulations necessary and incidental to the administration of § 930.28.

Preparing and completing Board member nomination packages for submission to the Secretary entails several stages of work that require months to complete. The process begins with the issuance of notices of open seats transmitted to industry, followed by the solicitation of nominations in the applicable districts. Grower members and at-large members ( i.e., members in districts with only one seat and who may be growers or handlers) are nominated first, then handler members are nominated. Once this is completed, the Board focuses efforts on the nomination of alternate members, a process that adds several more weeks to the timetable.

Currently, the Board is required to announce the expiration of a member's term of office and solicit nominations for the position at least 180 days before the term expires. Board staff must then complete the above-mentioned steps and submit the nomination package to the Secretary or Board at least 120 days before the term expires, in accordance with § 930.23(b)(7). This means the Board may have as few as 60 days (180 days minus 120 days) to prepare and submit a nomination package that adheres to the 120-day deadline. In practice, the Board staff cannot complete the process by the 120-day deadline. Therefore, the Board has recommended reducing the number of days in advance of a term's expiration that nominations must be submitted from 120 to 60 days. By making the submission date 60 days prior to the end of the term of the outgoing Board member, the Board staff would have an additional 60 days to conduct outreach for nominees and complete the nomination process.

This proposal is an administrative change for the Board. Aside from the proposed change, the Board staff would continue to conduct the nomination and election processes in the same manner as they have been conducted since the inception of the Order. This amendment would adjust by 60 days the deadline for submission of nominations to the Secretary. This change would not adversely impact the USDA's requirement to carry out the nomination or election processes.

This proposal would change language in § 930.52 to address two industry concerns about how this section establishes which districts are subject to the Order's volume regulations. The first issue involves the number of years that § 930.52(a) considers in determining a district's average production of tart cherries. The second issue involves § 930.52(d)'s exemption from volume regulation based on a district's “processed production,” which is an undefined term. These two issues have created volatility and confusion when calculating a district's production for the purpose of determining whether it is subject to the Order's volume regulations.

Section 930.52 establishes which districts in the production area are subject to the Order's volume regulations. Section 930.52(a) states that, as a general rule, the districts in which handlers are subject to the volume regulations are those in which the average annual production of cherries over the prior three years has exceeded six million pounds. Handlers become subject to volume regulation in the crop year that follows any three-year period in which the six-million-pound average production requirement is exceeded in that district.

Currently, the Board uses all tart cherry production for each district in calculating the OSF and for determining whether a district is regulated in any given year. The industry's production information comes from multiple sources. Handlers provide the Board with the amount of fruit that growers deliver to their facilities and from which district produced the fruit. Some growers divert cherries in the field in those years when a restriction is calculated under the OSF. The Board oversees and calculates the volume of cherries diverted from fields by growers. Using all available information, the Board determines the production of tart cherries by district that is used to calculate the OSF for any given year.

Tart cherry production can vary dramatically from year to year, making the production totals extremely volatile over multiple seasons. To make the average calculation for each district less volatile, the Board recommended moving to a five-year average instead of the current three-year average. The additional two years included in the calculation provide a longer window to assess the average production in each district, thereby reducing the weight each season has in determining the average number. The Board further noted that extending the period from three to five years would have a minimal impact on the regulation of the various districts, and allow for more consistent averages when calculating the six-million-pound threshold for determining if a district is subject to regulation. Consequently, the Board unanimously recommended changing the period for calculating the average pounds for each district from three to five years in § 930.52(a).

The second issue involves § 930.52(d)'s use of the term “processed production.” Section 930.52(d) exempts a district from volume regulation in a particular year if it produces less than 50 percent of its “average annual processed production” in the previous five years. At present, industry operates with the understanding that in years with volume restriction, grower diverted cherries are subtracted from the district's production when calculating the five-year average. However, since grower diverted cherries represent an insignificant portion of the district's total production, this has a negligible impact on the five-year average. By eliminating the term “processed” from § 930.52(d), it would be clearer to the industry that “production” means all cherries produced in a district when determining the exempt status. Therefore, in years where there is a restriction, all production, including grower diverted cherries, would be part of the production average. This change would simplify the calculation for the Board and keep the calculation consistent in years with and without volume restriction. A district's production average is most impacted by weather conditions from year to year, and not the volume of grower diverted fruit.

Therefore, eliminating the word “processed” from “processed production” would not meaningfully alter the way the industry or the Board are already operating, but it would simplify the five-year production average and make the calculation consistent from year to year. Elimination of the term would also make it clearer to the industry to include all tart cherries produced in a district when determining the regulation status of districts. The Board unanimously recommended this proposed change that would remove the term “processed” from § 930.52(d). Finally, AMS has identified a typo in § 930.62(a). A correction would be made by changing the reference to § 940.51 with § 930.51. This correction is administrative in nature and would not have an effect on the changes proposed in this rulemaking.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 400 tart cherry growers in the production area and approximately 40 handlers subject to regulation under the Order. At the time this analysis was performed, the Small Business Administration (SBA) defined small agricultural producers of tart cherries as those having annual receipts equal to or less than $3,500,000 (Other Noncitrus Fruit Farming, North American Industry Classification System Code 111339). Small agricultural service firms were defined as those having annual receipts equal to or less than $34,000,000 (Postharvest Crop Activities, North American Industry Classification System Code 115114) (13 CFR 121.201).

The National Agricultural Statistics Service (NASS) reported that the 2021-22 value of the tart cherry crop for processed utilization was approximately $83 million. The tart cherry production was 171.0 million pounds and the season average grower price for processed tart cherries was $0.485 per pound. Dividing the crop value by the estimated number of producers (400) yields an estimated average annual receipts per producer of $207,500 ($83 million divided by 400 producers). This is well below the SBA threshold for small producers.

An estimate of the season average price of $0.94 per pound received by handlers for processed tart cherries was derived from USDA's purchases of dried tart cherries for feeding programs in the 2021-22 season at an average price of $4.70 per pound. The dried cherry price was converted to a raw product equivalent price of $0.94 per pound at an industry recognized ratio of five to one ($4.70 divided by 5 equals $0.94). Multiplying this price by 2021 total processed utilization of 171.0 million pounds results in an estimated handler-level tart cherry value of $160.7 million ($0.94 per pound multiplied by 171.0 million pounds). Dividing this figure by the number of handlers (40) yields estimated average annual receipts per handler of approximately $4.0 million ($160.7 million divided by 40 handlers), which is well below the SBA threshold of $34 million for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

This proposed rulemaking would revise multiple provisions in the Order's subpart regulating handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin:

• Proposal 1: modify the method for allocating Board seats to a district so that it is based on the district's maximum volume of production in the most recent five harvests;

• Proposal 2: change the starting date for the term of office for Board members;

• Proposal 3: modify the basis for determining a Board member's sales constituency when a member has multiple affiliations;

• Proposal 4: clarify how sales constituency applies to alternate Board members;

• Proposal 5: adjust the timeframe for submitting nominations to USDA; and

• Proposal 6: clarify when districts are subject to the Order's volume regulations.

The proposed changes may be considered either modifications of, or clarifications to existing administrative Board processes, and affect only the Board's activity. AMS does not anticipate that any of the proposed changes will increase costs on producers or handlers. The goal of these proposed changes is to help further standardize and stabilize Board membership and improve Board efficiency and decision making throughout the year.

As an alternative to this proposal, the Board considered making no revisions to the Order at this time. However, due to changes in the industry, the Board believes the proposals are justified and necessary to ensure its ability to locally administer the program. AMS concurs with that conclusion.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements are necessary as a result of this proposed rulemaking. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rulemaking would impose no additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public-sector agencies.

AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rulemaking.

The Board's meetings are widely publicized throughout the tart cherries production area. All interested persons are invited to attend the meetings and encouraged to participate in Board deliberations on all issues. Like all Board meetings, the meetings held on February 15 and December 15, 2022, were public, and all entities, both large and small, were encouraged to express their views on the proposed amendments.

A proposed rulemaking concerning this action was published in the Federal Register on December 4, 2023 (88 FR 84075). A copy of the rulemaking was sent via email to the Board Manager for dissemination to all Committee members and tart cherry producers and handlers. Finally, the proposed rulemaking was made available by USDA through the internet and the Office of the Federal Register. A 60-day comment period ending February 2, 2024, was provided to allow interested persons to respond to the proposals. Two comments were received. One comment supported all the proposed amendments. The other comment, from a Michigan handler, was specifically against Proposal 1 of the proposed rulemaking. The handler believed that this amendment would require that Board seat allocations be calculated by the averaging of the previous five years' production, which the handler asserted would yield insufficient representation for District 1. However, Proposal 1 would no longer use a district's average annual production to determine its representation on the Board and would instead allocate seats to a district based on its highest annual production volume within a five-year period. For the years (2019 to 2023), District 1 would, in fact, be allocated four seats. Based on all the information available to AMS at this time, including the comments received in response to the proposed rulemaking, no changes will be made to the amendments as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

AMS has determined that the findings and conclusions, and general findings and determinations included in the proposed rulemaking set forth in the December 4, 2023, issue of the Federal Register (88 FR 84075) are appropriate and necessary and are hereby approved and adopted.

Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions. It is hereby ordered that this entire proposed rulemaking be published in the Federal Register .

It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR part 900.400-407) to determine whether the annexed Order amending the Order Regulating the Handling of Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin is approved or favored by growers and handlers (processors), as defined under the terms of the Order, who during the representative period were engaged in the production or processing of tart cherries in the production area.

The representative period for the conduct of such referendum is hereby determined to be July 1, 2023, through June 30, 2024.

The agents designated by the Secretary to conduct the referendum are Christian Nissen, Jennie Varela, and Steven Kauffman, Southeast Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: Christian.Nissen@usda.gov, Jennie.Varela@usda.gov, and Steven.Kauffman@usda.gov, respectively.

The findings and determinations hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of Marketing Order 930; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

1. Marketing Order 930 as hereby proposed to be amended and all the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

2. Marketing Order 930 as hereby proposed to be amended regulates the handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin and is applicable only to persons in the respective classes of commercial and industrial activity specified in the Order;

3. Marketing Order 930, as hereby proposed to be amended, is limited in application to the smallest regional production area, which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several marketing orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

4. Marketing Order 930, as hereby proposed to be amended prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of tart cherries produced or packed in the production area; and

5. All handling of tart cherries grown or handled in the production area, as defined in Marketing Order 930, is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

It is therefore ordered, that on and after the effective date hereof, all handling of tart cherries in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin shall be in conformity to, and in compliance with, the terms and conditions of the said Order as hereby proposed to be amended as follows:

The provisions of the proposed marketing order amending the Order contained in the proposed rulemaking issued by the Administrator and published in the Federal Register (88 FR 84075) on December 4, 2023, will be and are the terms and provisions of this order amending the Order and are set forth in full herein.

For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 930 as follows:

The revisions and the additions read as follows:

Background

This document sets forth proposed amendments to the Income Tax Regulations (26 CFR part 1) under section 401(a)(9) of the Internal Revenue Code of 1986 (Code). Section 401(a)(9) sets forth required minimum distribution rules for plans qualified under section 401(a). These rules are incorporated by reference in section 408(a)(6) and (b)(3) for individual retirement accounts and individual retirement annuities (collectively, IRAs); section 403(b)(10) for annuity contracts, custodial accounts, and retirement income accounts described in section 403(b) (section 403(b) plans); and section 457(d)(2) for eligible deferred compensation plans. The determination of the required minimum distribution is also relevant for purposes of the related excise tax under section 4974 and the definition of eligible rollover distribution in section 402(c).

The Rules and Regulations section of this issue of the Federal Register includes final regulations that amend the Income Tax Regulations and Excise Tax Regulations (26 CFR parts 1 and 54) relating to sections 401(a)(9), 402(c), 403(b), 408, 457, and 4974 (T.D. 10001). The background section in the preamble to those final regulations (2024 final regulations) describes those provisions.

These proposed regulations would address various provisions that were reserved in the 2024 final regulations. These proposed regulations address sections 107, 202, 204, 302, 325, and 327 of the SECURE 2.0 Act of 2022 (SECURE 2.0 Act), enacted on December 29, 2022, as Division T of the Consolidated Appropriations Act, 2023, Public Law 117-328, 136 Stat. 4459 (2022), and certain other issues.

The 2024 final regulations include rules for determining an employee's applicable age, as defined in section 401(a)(9)(C)(v), which is a component of the determination of the employee's required beginning date. Under those rules, which reflect the amendment to section 401(a)(9)(C) made by section 107 of the SECURE 2.0 Act, an employee's applicable age varies based on the employee's date of birth. However, as noted in the preamble to the 2024 final regulations, employees who were born in 1959 are described in section 401(a)(9)(C)(v)(I) of the Code (which provides that the applicable age for those employees is age 73) as well as section 401(a)(9)(C)(v)(II) (which provides that the applicable age for those employees is age 75).

The 2024 final regulations reserve § 1.401(a)(9)-2(b)(2)(v) for the determination of the applicable age for employees born in 1959, and these proposed regulations would fill in the reserved paragraph. Under the proposed regulations, the applicable age for an employee who was born in 1959 would be age 73.

The 2024 final regulations include guidance issued pursuant to section 204 of the SECURE 2.0 Act (relating to the application of section 401(a)(9) of the Code in a situation in which an employee's interest in a defined contribution plan is partially annuitized by using a portion of the employee's individual account to purchase an annuity contract). Specifically, § 1.401(a)(9)-5(a)(5)(iv) provides that, in lieu of satisfying section 401(a)(9) separately with respect to an annuity contract purchased with a portion of the employee's account and the remaining account balance, a plan may permit an employee to elect to satisfy section 401(a)(9) for the annuity contract and that account balance in the aggregate by adding the fair market value of the contract to the remaining account balance and treating payments under the annuity contract as distributions from the employee's individual account. However, the 2024 final regulations reserve § 1.401(a)(9)-5(a)(5)(v) for rules of operation with respect to this aggregation option, and these proposed regulations would fill in the reserved paragraph.

Under proposed § 1.401(a)(9)-5(a)(5)(v), the fair market value of the annuity contract would be determined as of December 31 of the calendar year preceding the distribution calendar year. In addition, beginning with the determination used for the 2026 distribution calendar year, the determination would have to be made using the applicable method set forth in § 1.408A-4, Q&A-14(b)(2). 1

Section 325 of the SECURE 2.0 Act added a new paragraph (5) to section 402A(d) of the Code, which provides that the provisions of section 401(a)(9)(A) (requiring that minimum distributions be paid during an employee's lifetime) and the incidental death benefit requirements of section 401(a) do not apply to any designated Roth account. The 2024 final regulations include limited guidance relating to the application of that new paragraph.

Specifically, in the case of an employee for whom only a portion of the employee's account under a defined contribution plan is held in a designated Roth account described in section 402A(b)(2), § 1.401(a)(9)-5(b)(3) of the 2024 final regulations provides that, for distribution calendar years up to and including the calendar year that includes the employee's date of death, amounts held in that designated Roth account are not taken into account for purposes of determining the account balance that is used to calculate the required minimum distribution. However, the 2024 final regulations reserve § 1.401(a)(9)-5(g)(2)(iii) for rules regarding how distributions from a designated Roth account are treated for purposes of section 401(a)(9), and these proposed regulations fill in the reserved paragraph.

Under proposed § 1.401(a)(9)-5(g)(2)(iii), a distribution from a designated Roth account made in a calendar year for which the employee is required to take a minimum distribution under the plan would not count towards satisfying that requirement. Consistent with this rule, the proposed regulations would provide that such a distribution is not treated as a required minimum distribution for purposes of § 1.402(c)-2(f). Thus, the distribution could be rolled over to a Roth IRA if it otherwise meets the requirements to be an eligible rollover distribution.

The 2024 final regulations include guidance relating to the application of section 4974(e) (as added to the Code by section 302(b) of the SECURE 2.0 Act). Specifically, § 54.4974-1(a)(2) provides that, in the case of a taxpayer who doesn't receive the full required minimum distribution under any qualified retirement plan (as defined in section 4974(c) of the Code) or any eligible deferred compensation plan (as defined in section 457(b)) for a calendar year, the excise tax under section 4974 is reduced from 25 percent of the shortfall to 10 percent if, by the last day of the correction window, the taxpayer: (1) receives a corrective distribution from the applicable plan in the amount of the shortfall; and (2) submits a return reflecting that reduced tax.

In addition, the 2024 final regulations provide for an automatic waiver of the section 4974 excise tax associated with a failure by a beneficiary of an individual to take a required minimum distribution in the calendar year in which the individual died if that individual had not already satisfied the minimum distribution requirement for that year provided that the failure is corrected within a specified period (generally by the end of the following calendar year). Specifically, § 54.4974-1(g)(3)(iii) provides for an automatic waiver of the excise tax under section 4974 if, by the tax filing deadline (including extensions thereof) for the taxable year of the beneficiary that begins with or within the calendar year of the individual's death (or, if later, the last day of the calendar year following that calendar year), the beneficiary takes a corrective distribution in the amount needed to satisfy the minimum distribution requirement for the calendar year of the death of the individual.

The 2024 final regulations reserve § 1.401(a)(9)-5(g)(2)(iv) for the treatment of corrective distributions that give rise to a reduction or waiver of the section 4974 excise tax, and these proposed regulations would fill in that reserved paragraph. Under proposed § 1.401(a)(9)-5(g)(2)(iv), a corrective distribution described in section 4974(e) or § 54.4974-1(g)(3)(iii) would not be taken into account for purposes of determining whether § 1.401(a)(9)-5 is satisfied for the calendar year in which the corrective distribution is made. Thus, under the proposed regulations, if a missed required minimum distribution is corrected by a distribution made in a subsequent calendar year, the required minimum distribution for that subsequent year must be made in addition to the corrective distribution. Furthermore, under § 1.402(c)-2(f)(1) of the 2024 final regulations, the corrective distribution is treated as a required minimum distribution and thus is not eligible for rollover.

These proposed regulations would make a conforming change to § 1.408- 8(g)(2) under which these corrective distributions would not be taken into account for purposes of determining whether § 1.408-8 of the 2024 final regulations is satisfied for the calendar year in which the corrective distribution is made. In addition, because § 1.408-8(b)(3) of the 2024 final regulations provides that the determination of whether a distribution from an IRA is a required minimum distribution (and thus not eligible for rollover pursuant to section 408(d)(3)(E)) is made in the same manner as provided in § 1.402(c)-2(f) and (j), the treatment under § 1.402(c)-2(f)(1) of the corrective distribution as a required minimum distribution (and thus not eligible for rollover) would also apply for purposes of section 408(d)(3)(E).

The 2024 final regulations permit a defined contribution plan to provide that, if an employee participating in the plan dies before the required beginning date, then an eligible designated beneficiary of the employee (including the employee's surviving spouse) may elect to receive the beneficiary's interest under the plan under the 10-year rule or as annual payments over a period not extending beyond the beneficiary's life expectancy. 2 Section 401(a)(9)(B)(iv)(I) through (III) of the Code, as amended by section 327(a) of the SECURE 2.0 Act, provides that, if the designated beneficiary of an employee who dies before the employee's required beginning date is the employee's surviving spouse, then the spouse may elect to: (1) be treated as if the surviving spouse were the employee for purposes of the regulations referred to in section 401(a)(9)(B)(iii)(II) of the Code (providing for annual payments over the beneficiary's life or life expectancy), (2) delay commencement of required minimum distributions until the year the employee would have attained the applicable age (as defined in section 401(a)(9)(C)(v)), and (3) be treated as the employee in the event the surviving spouse dies before distributions to the spouse begin. 3

Under the 2024 final regulations, if: (1) the employee dies before the employee's required beginning date; (2) the employee's surviving spouse is the sole beneficiary of the employee; and (3) that spouse is subject to the life expectancy rule, then the treatment described in section 401(a)(9)(B)(iv)(II) and (III) will apply automatically (that is, a separate election is not required). See § 1.401(a)(9)-3(d) and (e) of the 2024 final regulations.

Section 327(b) of the SECURE 2.0 Act instructs the Secretary to modify the regulations applicable to defined contribution plans under section 401(a)(9) of the Code so that an election under section 401(a)(9)(B)(iv) by the surviving spouse will extend the distribution period in the case of an employee's death after the required beginning date. In accordance with this instruction, § 1.401(a)(9)-5(g)(3)(i) of the 2024 final regulations provides that a defined contribution plan may permit a surviving spouse who is the sole beneficiary of the employee to elect to be treated as the employee for purposes of determining the required minimum distribution for a calendar year. The 2024 final regulations reserve § 1.401(a)(9)-5(g)(3)(ii) for rules relating to this election, and these proposed regulations would fill in that reserved paragraph.

Proposed § 1.401(a)(9)-5(g)(3)(ii) provides a series of rules that would apply with respect to the spousal election described in § 1.401(a)(9)-5(g)(3)(i) of the 2024 final regulations. Under the proposed regulations, if the employee dies before the required beginning date and the sole beneficiary of the employee is the surviving spouse who is subject to the life expectancy rule, then the spouse would automatically be treated as making the election described in section 401(a)(9)(B)(iv). As a result, the proposed regulations provide that section 401(a)(9)(B)(iv)(I) (under which the spouse is treated as the employee for purposes of section 401(a)(9)(B)(iii)(II)) would apply automatically in this case (in addition to the automatic application of sections 401(a)(9)(B)(iv)(II) and (III)). If the employee dies on or after the required beginning date, then the corresponding election under section 327(b) of the SECURE 2.0 Act does not apply automatically. However, these proposed regulations would provide that this corresponding election may be the default election under the terms of a plan (so that the surviving spouse need not take any action to have this election apply).

If the election under § 1.401(a)(9)-5(g)(3)(i) is in effect for a surviving spouse, then, regardless of whether the employee died before, on, or after the required beginning date, the proposed regulations provide that the applicable denominator used for determining the required minimum distribution for each distribution calendar year up to and including the calendar year that includes the surviving spouse's date of death would be determined using the Uniform Lifetime Table (rather than the Single Life Table) for the surviving spouse's age as of the surviving spouse's birthday in the distribution calendar year. 4 In accordance with § 1.401(a)(9)-5(d)(1)(i) of the 2024 final regulations, the required minimum distribution for the calendar year of the surviving spouse's death must be made to a beneficiary of the surviving spouse to the extent it has not already been distributed to the surviving spouse.

These proposed regulations provide that, if the election described in § 1.401(a)(9)-5(g)(3)(i) is in effect for the surviving spouse and the spouse dies on or after the date on which distributions are considered to have begun to the spouse under the rules of § 1.401(a)(9)-3(e)(3) of the 2024 final regulations (that is, the end of the calendar year in which the employee would have reached the applicable age), then annual distributions to the spouse's beneficiary would have to continue. Those distributions would be determined using the spouse's remaining life expectancy for the spouse's age as of the spouse's birthday in the calendar year of the spouse's death from the Single Life Table, reduced by one for each subsequent calendar year. In addition, the proposed regulations add a conforming sentence to § 1.401(a)(9)-4(e)(8), providing that the spouse's beneficiary would not be an eligible designated beneficiary in this situation. As a result, a final distribution of the employee's interest would have to be made by the end of the calendar year that includes the tenth anniversary of the spouse's death.

Under the proposed regulations, the spousal election described in § 1.401(a)(9)-5(g)(3)(i) would be available only if the first year for which annual required minimum distributions to the surviving spouse must be made is 2024 or later. For example, if an employee who died in 2017 and before the employee's required beginning date would have reached the applicable age in 2024 or later, then the first year for which an annual required minimum distribution is due would be 2024 or later, and the spousal election could apply. However, if the employee would have reached the applicable age in 2022, then the first year for which an annual required minimum distribution is due to the spouse was 2022, and the spousal election would not be available. Similarly, if the employee died in 2021 and after the employee's required beginning date, then the spouse must begin receiving annual required minimum distributions (based on the spouse's remaining life expectancy) in 2022, and the spousal election would not be available.

Although an election under section 401(a)(9)(B)(iv) of the Code results in the spouse being treated as the employee for purposes of the regulations referred to in section 401(a)(9)(B)(iii)(II) (that is, § 1.401(a)(9)-5), that treatment does not extend to other purposes. 5 For example, the spouse would not be subject to the 10 percent additional tax under section 72(t)(2)(A)(ii) even if the spouse takes a distribution before attaining age 59 1/2 . Similarly, the date by which the surviving spouse must commence distributions is determined by reference to the employee's attainment of the applicable age (rather than by reference to the spouse's attainment of the applicable age  6 ). In addition, for purposes of determining the account balance under a plan while the surviving spouse is taking distributions, § 1.401(a)(9)-5(b)(3) of the 2024 final regulations (which excludes amounts held in a designated Roth account from the employee's account balance during the employee's lifetime) does not apply. Thus, all amounts held in a designated Roth account and any other account under the plan are included for purposes of determining the required minimum distribution due under the plan for the calendar year.

These proposed regulations also provide an updated Uniform Lifetime Table that provides the applicable denominator for individuals ages 10 through 120+. This table was originally published in Notice 2022-6, 2022-5 IRB 460, relating to the determination of whether a series of payments is considered a series of substantially equal periodic payments.

Section 1.402(c)-2(j)(4) of the 2024 final regulations sets forth a special rule under which a portion of a distribution to certain surviving spouses (that is, the portion of the distribution that represents a catch-up of missed hypothetical required minimum distributions) is treated as a required minimum distribution that is not eligible for rollover. Section 1.402(c)-2(j)(4)(iii), which provides rules for the calculation of the hypothetical required minimum distributions, includes the assumption that the election in § 1.401(a)(9)-5(g)(3)(i) was in effect for the spouse. The 2024 final regulations reserve § 1.402(c)-2(j)(4)(vii) for an example of the calculation of the hypothetical required minimum distributions, and proposed § 1.402(c)-2(j)(4)(vii) would fill in the reserved paragraph with an example of the calculation of the hypothetical required minimum distributions over multiple years, which reflects the use of the Uniform Lifetime Table.

The proposed regulations do not include any changes to the defined benefit rules of § 1.401(a)(9)-6 to reflect the amendment to section 401(a)(9)(B)(iv) made by section 327 of the SECURE 2.0 Act. Comments are requested on whether there are circumstances under which that provision would affect the required minimum distribution rules applicable to defined benefit plans.

Section 202(a)(3) of the SECURE 2.0 Act instructs the Secretary of the Treasury (or that person's delegate) to amend § 1.401(a)(9)-6 to provide that, in the case of a qualifying longevity annuity contract (QLAC) which was purchased with joint and survivor annuity benefits for an individual and the individual's spouse, a divorce occurring after the original purchase and before the date that the annuity payments commence under the contract will not affect the permissibility of the joint and survivor benefits if certain conditions related to an associated qualified domestic relations order (QDRO) described in section 414(p) of the Code are met. Section 202(a)(3) of the SECURE 2.0 Act also provides that if the arrangement is not subject to section 414(p) of the Code or section 206(d) of the Employee Retirement Income Security Act of 1974, 7 a divorce or separation instrument may be substituted for a QDRO. The 2024 final regulations reserve § 1.401(a)(9)-6(q)(3)(vii)(B) for rules related to this divorce or separation instrument alternative, and these proposed regulations would fill in the reserved paragraph.

Under proposed § 1.401(a)(9)-6(q)(3)(vii)(B), the divorce or separation instrument alternative would be available only if the plan is not subject to both section 414(p) of the Code and section 206(d) of ERISA (for example, a governmental plan described in section 414(d) of the Code). In accordance with section 202(b) of the SECURE 2.0 Act, these proposed regulations would provide that, for purposes of this alternative, a divorce or separation instrument is: (1) a decree of divorce or separate maintenance or a written instrument incident to such a decree; (2) a written separation agreement; or (3) any other decree requiring an individual to make payments for the support or maintenance of the individual's former spouse.

The 2024 final regulations provide rules for the separate application of section 401(a)(9) of the Code with respect to multiple beneficiaries of a see-through trust (within the meaning of § 1.401(a)(9)-4(f)(1)). Specifically, § 1.401(a)(9)-8(a) of the 2024 final regulations permits separate application of section 401(a)(9) with respect to each of the beneficiaries' separate interests if the terms of a see-through trust meet certain requirements. One of those requirements is that the trust must provide that it is to be divided immediately upon the death of the employee, with the separate interests to be held in separate see-through trusts.

Proposed § 1.401(a)(9)-8(a)(1)(iii)(B) sets forth an exception to that requirement in the case of an outright distribution to a trust beneficiary, as described in proposed § 1.401(a)(9)-8(a)(1)(iii)(D). Under the proposed regulations, the rules under § 1.401(a)(9)-8(a)(1)(iii)(C) of the 2024 final regulations (prohibiting discretion in the allocation of post-death distributions attributable to the employee's interest in the plan) would be extended to apply when that outright distribution exception is used.

Under proposed § 1.401(a)(9)-8(a)(1)(iii)(D), the separate interests of the beneficiaries held in a see-through trust would not fail to be eligible for the exception in proposed § 1.401(a)(9)-8(a)(1)(iii)(B) merely because, upon termination of that trust, a beneficiary's separate interest in the trust is to be held directly by that beneficiary rather than being held by a separate see-through trust. Thus, for example, if a trust which is a named beneficiary provides that each of three children have equal interests in the portion of the trust attributable to the employee's interest in the plan, and the trust provides that it is to be immediately divided upon the death of the employee, then section 401(a)(9) is permitted to be applied separately with respect to the separate interests of the three children, even if the separate interest of one of the children is held by a sub-trust while the separate interests of the other children are held directly by those children.

The amendments to §§ 1.401(a)(9)-4, 1.401(a)(9)-5, 1.401(a)(9)-6, 1.401(a)(9)-8, 1.401(a)(9)-9, and 1.408-8 are proposed to apply for purposes of determining required minimum distributions for calendar years beginning on or after January 1, 2025. The amendments to § 1.402(c)-2 are proposed to apply for distributions on or after January 1, 2025. Thus, these amendments would have the same applicability dates as the corresponding provisions in the 2024 final regulations.

Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6 of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) generally requires that a Federal agency obtain the approval of the Office of Management and Budget (OMB) before collecting information from the public, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

These proposed regulations include third-party disclosures and recordkeeping requirements, in sections 1.401(a)(9)-5(a)(5)(iv) and 1.401(a)(9)-5(g)(3)(ii), that are required to determine the required minimum distribution for a calendar year for certain defined contribution plan participants and beneficiaries. These collections of information would generally be used by the IRS for tax compliance purposes and plan administrators to facilitate compliance with the required minimum distribution requirements under section 401(a)(9) of the Code. The likely respondents to these collections are employees participating in retirement plans and their beneficiaries.

The 2024 final regulations include guidance relating to the application of section 401(a)(9) in a situation in which an employee's interest in a defined contribution plan is partially annuitized by using a portion of the employee's account to purchase an annuity contract. Specifically, section 1.401(a)(9)-5(a)(5)(iv) of the final regulations provides that, in lieu of satisfying section 401(a)(9) separately with respect to an annuity contract purchased with a portion of an employee's defined contribution plan account and the remaining account balance, a plan may permit an employee to elect to satisfy section 401(a)(9) for the annuity contract and the remaining account balance in the aggregate by adding the fair market value of the contract to the remaining account balance and treating payments under the annuity contract as distributions from the individual account. Section 1.401(a)(9)-5(a)(5)(v) of the proposed regulations provides rules of operation with respect to this aggregation option—specifically, the method and date for valuation of the annuity contract. Under these rules of operation, annuity contract issuers are expected to provide the annuity valuations as a third-party disclosure. In addition, the amount of payments made under the annuity contract and the underlying value of the annuity contract is expected to be reported to the employer as a third-party disclosure. The associated burden is as follows:

Estimated number of respondents: 19,620.

Estimated average annual burden per respondent: 0.5 hours (30 minutes).

Estimated frequency of responses: Once.

Estimated total annual reporting burden: 9,810 hours.

Section 1.401(a)(9)-5(g)(3)(i) of the 2024 final regulations  8 provides that a plan may permit a surviving spouse who is the sole beneficiary of an employee to elect to be treated as the employee for purposes of determining the required minimum distribution from a defined contribution plan for a calendar year. Section 1.401(a)(9)-5(g)(3)(ii) of these proposed regulations supplements that provision by providing a series of rules that would apply with respect to the spousal election described in the preceding sentence. Under these proposed regulations, if the employee dies before the employee's required beginning date and the sole beneficiary of the employee is the surviving spouse who is subject to the life expectancy rule, then the spouse would automatically be treated as making the election. If the employee dies on or after the required beginning date, then the election would not apply automatically. However, the proposed regulations provide that the election may be the default under the terms of a plan (so that the surviving spouse need not take any action to have the election apply). This election is expected to be made as a third-party disclosure between the surviving spouse and the plan administrator, who will keep records of the election. The associated burden is as follows:

Estimated number of respondents: 156,960.

Estimated average annual burden per respondent: 0.17 hours (10 minutes).

Estimated frequency of responses: Once.

Estimated total annual reporting burden: 26,683 hours.

The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act. Commenters are strongly encouraged to submit public comments electronically. Written comments and recommendations for the proposed information collection should be sent to www.reginfo.gov/public/do/PRAMain, with copies to the Internal Revenue Service. Find this particular information collection by selecting “ Currently under Review—Open for Public Comments ” and using the search function. Submit electronic submissions for the proposed information collection to the IRS via email at pra.comments@irs.gov (indicate REG-103529-23 on the Subject line). Comments on the collection of information should be received by September 17, 2024. Comments are specifically requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility; the accuracy of the estimated burden associated with the proposed collection of information; how the quality, utility, and clarity of the information to be collected may be enhanced; how the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these proposed regulations will not have a significant economic impact on a substantial number of small entities. These proposed regulations would affect individuals and businesses, some of which may be small entities. The rule affects administrators of, and participants in, certain plans; owners of individual retirement accounts and annuities; employees for whom amounts are contributed to section 403(b) annuity contracts, custodial accounts, or retirement income accounts; and beneficiaries of those plans, contracts, accounts, and annuities. These proposed regulations do not impose new compliance burdens and are not expected to result in economically meaningful changes in behavior relative to the existing regulations. It is expected that most plans will provide the spousal election under § 1.401(a)(9)-5(g)(3) as a default election under the plan and that surviving spouses will rarely opt out of the default (because of the tax benefit of the default election). Therefore, the economic impact of the rule is not expected to be significant.

Notwithstanding this certification that the proposed regulations would not have a significant economic impact on a substantial number of small entities, the Treasury Department and the IRS invite comments on the impacts these proposed regulations may have on small entities. Pursuant to section 7805(f) of the Code, these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.

Section 202 of the Unfunded Mandates Reform Act of 1995 requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. The proposed regulations do not propose any rule that would include any Federal mandate that may result in expenditures by State, local, or tribal governments, or by the private sector, in excess of that threshold.

Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. The proposed regulations do not propose rules that would have federalism implications, impose substantial direct compliance costs on State and local governments, or preempt State law within the meaning of the Executive order.

Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to comments regarding the notice of proposed rulemaking that are submitted timely to the IRS as prescribed in the preamble under the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of the proposed regulation. All comments will be made available at www.regulations.gov. Once submitted to the Federal eRulemaking Portal, comments cannot be edited or withdrawn.

A public hearing has been scheduled for September 25, 2024, beginning at 10:00 a.m. ET in the Auditorium of the Internal Revenue Building, 1111 Constitution Avenue NW, Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. Participants may alternatively attend the public hearing by telephone.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit an outline of the topics to be addressed and the time to be devoted to each topic by September 17, 2024. A period of 10 minutes will be allocated to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. If no outline of the topics to be discussed at the hearing is received by September 17, 2024, the public hearing will be cancelled. If the public hearing is cancelled, a notice of cancellation of the public hearing will be published in the Federal Register .

Individuals who want to testify in person at the public hearing must send an email to publichearings@irs.gov to have your name added to the building access list. The subject line of the email must contain the regulation number REG-103529-23 and the language TESTIFY In Person. For example, the subject line may say: Request to TESTIFY In Person at Hearing for REG-103529-23.

Individuals who want to testify by telephone at the public hearing must send an email to publichearings@irs.gov to receive the telephone number and access code for the hearing. The subject line of the email must contain the regulation number REG-103529-23 and the language TESTIFY Telephonically. For example, the subject line may say: Request to TESTIFY Telephonically at Hearing for REG-103529-23.

Individuals who want to attend the public hearing in person without testifying must also send an email to publichearings@irs.gov to have your name added to the building access list. The subject line of the email must contain the regulation number REG-103529-23 and the language ATTEND In Person. For example, the subject line may say: Request to ATTEND Hearing In Person for REG-103529-23. Requests to attend the public hearing must be received by 5:00 p.m. ET on September 23, 2024.

Individuals who want to attend the public hearing by telephone without testifying must also send an email to publichearings@irs.gov to receive the telephone number and access code for the hearing. The subject line of the email must contain the regulation number REG-103529-23 and the language ATTEND Hearing Telephonically. For example, the subject line may say: Request to ATTEND Hearing Telephonically for REG-103529-23. Requests to attend the public hearing must be received by 5:00 p.m. ET on September 23, 2024.

Hearings will be made accessible to people with disabilities. To request special assistance during the hearing, please contact the Publications and Regulations Branch of the Office of Associate Chief Counsel (Procedure and Administration) by sending an email to publichearings@irs.gov (preferred) or by telephone at (202) 317-6901 (not a toll-free number) by September 20, 2024.

IRS Revenue Procedures, Revenue Rulings notices, and other guidance cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at http://www.irs.gov.

The principal authors of these proposed regulations are Jessica S. Weinberger and Brandon M. Ford, of the Office of the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). However, other personnel from the Treasury Department and the IRS participated in the development of the proposed regulations.

Accordingly, the Treasury Department and the IRS propose to amend 26 CFR part 1 as follows:

The regulations at part 802 to title 31 of the Code of Federal Regulations (part 802) implement the provisions in section 721 of the Defense Production Act of 1950, as amended (Section 721) and establish the process and procedures of the Committee on Foreign Investment in the United States (CFIUS or the Committee) with respect to reviewing transactions involving the purchase or lease by, or concession to, a foreign person of certain real estate in the United States.

Section 721 authorizes the president or his designee ( i.e., CFIUS) to review certain real estate transactions by foreign persons where the real estate at issue is located in the United States and (a) is located within, or will function as part of, an air or maritime port; or (b) is in close proximity to a United States military installation or another facility or property of the United States Government that is sensitive for reasons relating to national security; could reasonably provide the foreign person the ability to collect intelligence on activities being conducted at such an installation, facility, or property; or could otherwise expose national security activities at such an installation, facility, or property to the risk of foreign surveillance.

The current regulations at part 802 identify a subset of military installations around which certain real estate transactions are covered under CFIUS's jurisdiction. The specific military installations are listed in appendix A by name and location (or township/range), and section 802.227 sets forth the category descriptions of the military installations identified in appendix A. The locations listed in appendix A are intended to aid in the identification of the relevant installations only and do not represent specific boundaries of the installations for purposes of determining whether a transaction is a covered real estate transaction.

The preamble to the final rule establishing part 802 ( see 85 FR 3158) noted that the military installations listed in the appendix were identified by the U.S. Department of Defense (Department of Defense) based upon an evaluation of national security considerations, and that the Department of Defense will continue on an ongoing basis to assess its military installations and the geographic scope established under the rules to ensure appropriate application in light of national security considerations. In 2023, as a result of the assessment of military installations by the Department of Defense at that time, amendments made to the regulations added eight military installations to appendix A and updated the names of five military installations ( see 88 FR 57348, published August 23, 2023). Since then, the Department of Defense has completed a comprehensive assessment of its military installations through coordination across all military services, considering factors such as the operations, assets, missions, and training at each installation and appropriateness for coverage under Section 721. While the Department of Defense continuously evaluates its military installations to ensure appropriate application of Section 721 in light of national security considerations, the recent completion of this comprehensive assessment prompted the changes described in this proposed rule—namely, the addition of 40 military installations to part 1 of appendix A around which CFIUS's real estate jurisdiction generally extends one mile from the installation's boundary; the addition of 19 military installations to part 2 of appendix A around which CFIUS's real estate jurisdiction generally extends 100 miles from the installation's boundary; the movement of eight military installations from part 1 to part 2 of appendix A; the removal of one installation from part 1 and two installations from part 2; and corresponding revisions to the definition of the term “military installation.” Additionally, the names of 14 installations already in appendix A would be technically amended to reflect official installation name changes by the Department of Defense and the location of seven installations would be updated to more directly identify the installations' approximate location.

The appendix to the regulations at part 802 identifies certain bases, ranges, and other installations that, for the purposes of the regulation, meet the definition of “military installation” at section 802.227 and, to assist in the identification of such installations, the related location (or township/range) information. The appendix is important in determining whether a transaction is a covered real estate transaction because of a nearby military installation. As relevant to this proposed rule, the installations identified in the appendix at part 1 meet one of the category descriptions in section 802.227 (b) to (o). Installations at part 2 meet one of the category descriptions in section 802.227 (h), (k), or (m).

This proposed rule would revise appendix A to include the 59 military installations listed below as well as to remove eight military installations from part 1 of appendix A and add them to part 2 (as noted below).

On November 17, 2021, the USPTO published in the Federal Register a final rule amending the Rules of Practice in Trademark Cases to implement provisions of the TMA. See Changes To Implement Provisions of the Trademark Modernization Act of 2020 (86 FR 64300). That final rule was published under Regulatory Identification Number (RIN) 0651-AD55. One of the provisions implemented in that final rule was an amendment to section 12(b) of the Trademark Act, 15 U.S.C. 1062(b), that allowed the USPTO to set response periods by regulation for a time period between 60 days and six months, with the option for extensions to a full six-month period, with the goal of shortening the overall time it takes to obtain a registration. The USPTO set a period of three months to respond to pre-registration office actions, instead of the current six-month period, and provided the option to request a single three-month extension of the deadline, subject to the payment of a fee. Although post-registration actions are not subject to the response provisions in section 12 of the Act, for convenience and predictability, the USPTO applied the same three-month response period and single three-month extension to office actions issued in connection with post-registration maintenance and renewal filings. The final rule stated that these changes would go into effect on December 1, 2022.

On October 13, 2022, the USPTO published in the Federal Register a final rule under the same RIN delaying the effective date for the three-month response period and extensions in the examination of post-registration filings from December 1, 2022, until October 7, 2023. See Changes To Implement Provisions of the Trademark Modernization Act of 2020; Delay of Effective Date and Correction (87 FR 62032).

On September 12, 2023, the USPTO published in the Federal Register a final rule further delaying the provisions that address post-registration responses and extensions until the spring or early summer of 2024. See Changes To Implement Provisions of the Trademark Modernization Act of 2020; Delay of Effective Date (88 FR 62463). That final rule was published under RIN 0651-AD71.

In both cases, implementation of the changes to the response deadlines for post-registration office actions was postponed to allow the USPTO additional time to update its IT systems for changes and to provide the public an opportunity to more fully comprehend the nature of, and prepare to comply with, the new provisions before they became effective.

In this NPRM, the USPTO is proposing to withdraw implementation of the post-registration provisions that are currently delayed. After further consideration in light of data collected by the USPTO and current USPTO post-registration practice, the USPTO believes that it is not necessary to implement the provisions. The actual deadline to respond to an office action can be later than the current six-month response period if the statutory deadline has not passed and the USPTO waits until the end of the grace period to cancel a registration where the owner failed to timely respond or provided an unacceptable response. Therefore, there would be no appreciable reduction in the time it takes to gain approval to maintain a registration were the USPTO to implement the shortened response period. However, there would be an appreciable increase in the potential burden to stakeholders of adding new deadlines to track what in many cases may not be the applicable deadline.

When considering implementation of the delayed rule, the USPTO evaluated data from 2019 through 2022, which showed that two thirds of owners file their responses within three months of issuance of an office action. The data also shows that most filers will not be subject to the three-month response period. Specifically, nearly half of the owners who file maintenance documents in the one-year statutory period for filing, and about three quarters of those who file in the grace period, will not be subject to the three-month response period if pendency targets for the USPTO to review the maintenance documents are met. That is, owners will have more than three months to reply to an office action because the end of the one-year period for filing, or the grace period, will be later than the three-month response period. About one third of those filers will have more than six months to file a response. The same data shows that two thirds of owners file their responses within three months of issuance of an office action. More importantly, any registration where the owner failed to timely respond or provided an unacceptable response to a post-registration office action is not canceled until the end of the grace period. The USPTO would only see the impact of a shortened response period for those filing towards the end of the grace period, which based on the data collected by the USPTO is not a large number of filings.

Since implementation of the Trademark Law Treaty Implementation Act, Public Law 105-330, 112 Stat. 3064 (15 U.S.C. 1051), in 1999, the response period for post-registration office actions has been the later of six months or the end of the one-year period for filing the relevant maintenance document. If the maintenance document is filed in the six-month grace period, the response period is six months. If no response is received within that time, the registration will be canceled, unless time remains in the six-month grace period under Trademark Act (Act) section 8(a)(3), 15 U.S.C. 1058(a)(3).

Under the delayed provisions, the response period becomes the later of: (1) three months, or (2) the end of the one-year period, if filed in the one-year period for filing a maintenance document, or (3) the later of three months or the end of the grace period if filed in the grace period. The three-month period may be extended by three months for a total of six months. If the shortened post-registration response periods are implemented, trademark owners will have to keep track of both the three-month office-action response period and the end of the statutory period in which they file, which may create an additional burden on them. They will have to decide whether filing an extension of time to respond to an outstanding office action is necessary or makes sense. This may result in the unintentional cancellation of their registration if they do not calculate the deadline correctly. Therefore, any potential benefits from the shortened response periods are minimal given the small number of filings for which the three-month response period would be effective and compared to the potential burden of creating new deadlines to track that in many cases may not be the applicable deadline.

The USPTO proposes to withdraw the amendments to 37 CFR 2.163, 2.165, 2.176, 2.184, 2.186, 7.6, 7.39, and 7.40 (amendatory instructions 29, 30, 31, 33, 34, 37, 38, and 39, respectively), which published at 86 FR 64300 on November 17, 2021, were delayed at 87 FR 62032 on October 13, 2022, and further delayed at 88 FR 62463 on September 12, 2023; and to withdraw the amendment to 37 CFR 2.6 (amendatory instruction 2), which published at 87 FR 62032 on October 13, 2022, and was indefinitely delayed at 88 FR 62463 on September 12, 2023.

A. Administrative Procedure Act: The changes proposed by this rulemaking involve rules of agency practice and procedure, and/or interpretive rules, and do not require notice-and-comment rulemaking. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 97, 101 (2015) (explaining that interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers” and do not require notice and comment when issued or amended); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice-and-comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”); and JEM Broadcasting Co. v. F.C.C., 22 F.3d 320, 328 (D.C. Cir. 1994) (explaining that rules are not legislative because they do not “foreclose effective opportunity to make one's case on the merits”).

Nevertheless, the USPTO is publishing this proposed rule for comment to seek the benefit of the public's views on the office's proposed regulatory changes.

B. Regulatory Flexibility Act: For the reasons set forth herein, the Senior Counsel for Regulatory and Legislative Affairs, Office of General Law, of the USPTO has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes in this proposed rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

This rulemaking would withdraw the post-registration response periods provisions published in the November 17, 2021, final rule implementing the Trademark Modernization Act. See Changes To Implement Provisions of the Trademark Modernization Act of 2020 (86 FR 64300). These regulations had a delayed effective date of December 1, 2022. That effective date was subsequently further delayed, and ultimately delayed indefinitely, and thus the post-registration response periods provisions have never come into effect, and the USPTO has never implemented them.

The USPTO does not collect or maintain statistics on small versus large-entity registrants, and this information would be required in order to determine the number of small entities that would be affected by the proposed rule. However, the USPTO expects that there will be no impact to all entities, including small entities, affected by this rulemaking.

In this rulemaking, the USPTO is proposing to withdraw implementation of the post-registration provisions that are currently delayed. After further consideration in light of data collected by the USPTO and current USPTO post-registration practice, the USPTO believes that it is not necessary to implement the provisions. The actual deadline to respond to an office action can be later than the current six-month response period if the statutory deadline has not passed and the USPTO waits until the end of the grace period to cancel a registration where the owner failed to timely respond or provided an unacceptable response. Therefore, there would be no appreciable reduction in the time it takes to gain approval to maintain a registration were the USPTO to implement the shortened response period. However, there would be an appreciable increase in the potential burden to stakeholders of adding new deadlines to track what in many cases may not be the applicable deadline.

When considering implementation of the delayed rule, the USPTO evaluated data from 2019 through 2022, which showed that two thirds of owners file their responses within three months of issuance of an office action. The data also shows that most filers will not be subject to the three-month response period. Specifically, nearly half of the owners who file maintenance documents in the one-year statutory period for filing, and about three quarters of those who file in the grace period, will not be subject to the three-month response period if pendency targets for the USPTO to review the maintenance documents are met. That is, owners will have more than three months to reply to an office action because the end of the one-year period for filing, or the grace period, will be later than the three-month response period. About one third of those filers will have more than six months to file a response. The same data shows that two thirds of owners file their responses within three months of issuance of an office action. More importantly, any registration where the owner failed to timely respond or provided an unacceptable response to a post-registration office action is not canceled until the end of the grace period. The USPTO would only see the impact of a shortened response period for those filing towards the end of the grace period, which based on the data collected by the USPTO is not a large number of filings. Because the post-registration response periods were never implemented, the withdrawal of these regulations would have no impact on owners.

For the foregoing reasons, the changes in this proposed rule will not have a significant economic impact on a substantial number of small entities.

C. Executive Order 12866 (Regulatory Planning and Review): This rule has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993), as amended by Executive Order 14094 (Apr. 6, 2023).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, and as discussed above, the USPTO has, to the extent feasible and applicable: (1) made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) provided the public with a meaningful opportunity to participate in the regulatory process, including soliciting the views of those likely affected prior to issuing an NPRM, and provided online access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes, to the extent applicable.

E. Executive Order 13132 (Federalism): This rulemaking pertains strictly to Federal agency procedures and does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

F. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) have substantial direct effects on one or more Indian tribes, (2) impose substantial direct compliance costs on Indian tribal governments, or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

G. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

H. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

I. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

J. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), prior to issuing any final rule, the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this proposed rule are not expected to result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this proposed rule is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

L. Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of $100 million (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

M. National Environmental Policy Act of 1969: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

N. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

O. Paperwork Reduction Act of 1995: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) requires that the USPTO consider the impact of paperwork and other information collection burdens imposed on the public. This proposed rule involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). The collection of information involved in this proposed rule has been reviewed and previously approved by OMB under OMB Control Numbers 0651-0050 (Response to Office Action and Voluntary Amendment Forms) and 0651-0055 (Post Registration (Trademark Processing).

Notwithstanding any other provision of law, no person is required to respond to nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

P. E-Government Act Compliance: The USPTO is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Table of Contents I. What action is the EPA proposing? II. Background and Requirements for Regional Haze Plans A. Regional Haze Background B. Roles of Agencies in Addressing Regional Haze III. Requirements for Regional Haze Plans for the Second Implementation Period A. Identification of Class I Areas B. Calculations of Baseline, Current, and Natural Visibility Conditions; Progress to Date; and the Uniform Rate of Progress C. Long-Term Strategy for Regional Haze D. Reasonable Progress Goals E. Monitoring Strategy and Other State Implementation Plan Requirements F. Requirements for Periodic Reports Describing Progress Towards the Reasonable Progress Goals G. Requirements for State and Federal Land Manager Coordination IV. The EPA's Evaluation of Connecticut's Regional Haze Submission for the Second Implementation Period A. Background on Connecticut's First Implementation Period SIP Submission B. Connecticut's Second Implementation Period SIP Submission and the EPA's Evaluation C. Identification of Class I Areas D. Calculations of Baseline, Current, and Natural Visibility Conditions; Progress to Date; and the Uniform Rate of Progress E. Long-Term Strategy for Regional Haze a. Connecticut's Response to the Six MANEVU Asks b. The EPA's Evaluation of Connecticut's Response to the Six MANEVU Asks and Compliance With § 51.308(f)(2)(i) c. Additional Long-Term Strategy Requirements F. Reasonable Progress Goals G. Monitoring Strategy and Other Implementation Plan Requirements H. Requirements for Periodic Reports Describing Progress Towards the Reasonable Progress Goals I. Requirements for State and Federal Land Manager Coordination J. Other Required Commitments V. Proposed Action VI. Statutory and Executive Order Reviews I. What action is the EPA proposing?

On January 5, 2022, the Connecticut Department of Energy and Environmental Protection (CT DEEP) submitted a revision to its SIP to address regional haze for the second implementation period. CT DEEP made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308. The EPA is proposing to find that the Connecticut regional haze SIP submission for the second implementation period meets the applicable statutory and regulatory requirements and thus proposes to approve Connecticut's submission into its SIP.

In the 1977 CAA Amendments, Congress created a program for protecting visibility in the nation's mandatory Class I Federal areas, which include certain national parks and wilderness areas. 1 CAA section 169A. The CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution.” CAA section 169A(a)(1). The CAA further directs the EPA to promulgate regulations to assure reasonable progress toward meeting this national goal. CAA section 169A(a)(4). On December 2, 1980, the EPA promulgated regulations to address visibility impairment in mandatory Class I Federal areas (hereinafter referred to as “Class I areas”) that is “reasonably attributable” to a single source or small group of sources. (45 FR 80084, December 2, 1980). These regulations, codified at 40 CFR 51.300 through 51.307, represented the first phase of the EPA's efforts to address visibility impairment. In 1990, Congress added section 169B to the CAA to further address visibility impairment, specifically, impairment from regional haze. CAA section 169B. The EPA promulgated the Regional Haze Rule (RHR), codified at 40 CFR 51.308, 2 on July 1, 1999. (64 FR 35714, July 1, 1999). These regional haze regulations are a central component of the EPA's comprehensive visibility protection program for Class I areas.

Regional haze is visibility impairment that is produced by a multitude of anthropogenic sources and activities which are located across a broad geographic area and that emit pollutants that impair visibility. Visibility impairing pollutants include fine and coarse particulate matter (PM) ( e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors ( e.g., sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), and, in some cases, volatile organic compounds (VOC) and ammonia (NH 3 )). Fine particle precursors react in the atmosphere to form fine particulate matter (PM 2.5 ), which impairs visibility by scattering and absorbing light. Visibility impairment reduces the perception of clarity and color, as well as visible distance. 3

To address regional haze visibility impairment, the 1999 RHR established an iterative planning process that requires both states in which Class I areas are located and states “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to periodically submit SIP revisions to address such impairment. CAA section 169A(b)(2);  4 see also 40 CFR 51.308(b), (f) (establishing submission dates for iterative regional haze SIP revisions); (64 FR at 35768, July 1, 1999). Under the CAA, each SIP submission must contain “a long-term (ten to fifteen years) strategy for making reasonable progress toward meeting the national goal,” CAA section 169A(b)(2)(B); the initial round of SIP submissions also had to address the statutory requirement that certain older, larger sources of visibility impairing pollutants install and operate the best available retrofit technology (BART). CAA section 169A(b)(2)(A); 40 CFR 51.308(d), (e). States' first regional haze SIPs were due by December 17, 2007, 40 CFR 51.308(b), with subsequent SIP submissions containing updated long-term strategies originally due July 31, 2018, and every ten years thereafter. (64 FR at 35768, July 1, 1999). The EPA established in the 1999 RHR that all states either have Class I areas within their borders or “contain sources whose emissions are reasonably anticipated to contribute to regional haze in a Class I area”; therefore, all states must submit regional haze SIPs. 5 Id. at 35721.

Much of the focus in the first implementation period of the regional haze program, which ran from 2007 through 2018, was on satisfying states' BART obligations. First implementation period SIPs were additionally required to contain long-term strategies for making reasonable progress toward the national visibility goal, of which BART is one component. The core required elements for the first implementation period SIPs (other than BART) are laid out in 40 CFR 51.308(d). Those provisions required that states containing Class I areas establish reasonable progress goals (RPGs) that are measured in deciviews and reflect the anticipated visibility conditions at the end of the implementation period including from implementation of states' long-term strategies. The first planning period RPGs were required to provide for an improvement in visibility for the most impaired days over the period of the implementation plan and ensure no degradation in visibility for the least impaired days over the same period. In establishing the RPGs for any Class I area in a state, the state was required to consider four statutory factors: the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources. CAA section 169A(g)(1); 40 CFR 51.308(d)(1).

States were also required to calculate baseline (using the five-year period of 2000-2004) and natural visibility conditions ( i.e., visibility conditions without anthropogenic visibility impairment) for each Class I area, and to calculate the linear rate of progress needed to attain natural visibility conditions, assuming a starting point of baseline visibility conditions in 2004 and ending with natural conditions in 2064. This linear interpolation is known as the uniform rate of progress (URP) and is used as a tracking metric to help states assess the amount of progress they are making towards the national visibility goal over time in each Class I area. 6 40 CFR 51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States' long-term strategies must include the “enforceable emissions limitations, compliance, schedules, and other measures as necessary to achieve the reasonable progress goals.” 40 CFR 51.308(d)(3). In establishing their long-term strategies, states are required to consult with other states that also contribute to visibility impairment in a given Class I area and include all measures necessary to obtain their shares of the emission reductions needed to meet the RPGs. 40 CFR 51.308(d)(3)(i), (ii). Section 51.308(d) also contains seven additional factors states must consider in formulating their long-term strategies, 40 CFR 51.308(d)(3)(v), as well as provisions governing monitoring and other implementation plan requirements. 40 CFR 51.308(d)(4). Finally, the 1999 RHR required states to submit periodic progress reports—SIP revisions due every five years that contain information on states' implementation of their regional haze plans and an assessment of whether anything additional is needed to make reasonable progress, see 40 CFR 51.308(g), (h)—and to consult with the Federal Land Manager(s)  7 (FLMs) responsible for each Class I area according to the requirements in CAA section 169A(d) and 40 CFR 51.308(i).

On January 10, 2017, the EPA promulgated revisions to the RHR, (82 FR 3078, January 10, 2017), that apply for the second and subsequent implementation periods. The 2017 rulemaking made several changes to the requirements for regional haze SIPs to clarify States' obligations and streamline certain regional haze requirements. The revisions to the regional haze program for the second and subsequent implementation periods focused on the requirement that States' SIPs contain long-term strategies for making reasonable progress towards the national visibility goal. The reasonable progress requirements as revised in the 2017 rulemaking (referred to here as the 2017 RHR Revisions) are codified at 40 CFR 51.308(f). Among other changes, the 2017 RHR Revisions adjusted the deadline for States to submit their second implementation period SIPs from July 31, 2018, to July 31, 2021, clarified the order of analysis and the relationship between RPGs and the long-term strategy, and focused on making visibility improvements on the days with the most anthropogenic visibility impairment, as opposed to the days with the most visibility impairment overall. The EPA also revised requirements of the visibility protection program related to periodic progress reports and FLM consultation. The specific requirements applicable to second implementation period regional haze SIP submissions are addressed in detail below.

The EPA provided guidance to the states for their second implementation period SIP submissions in the preamble to the 2017 RHR Revisions as well as in subsequent, stand-alone guidance documents. In August 2019, the EPA issued “Guidance on Regional Haze State Implementation Plans for the Second Implementation Period” (“2019 Guidance”). 8 On July 8, 2021, the EPA issued a memorandum containing “Clarifications Regarding Regional Haze State Implementation Plans for the Second Implementation Period” (“2021 Clarifications Memo”). 9 Additionally, the EPA further clarified the recommended procedures for processing ambient visibility data and optionally adjusting the URP to account for international anthropogenic and prescribed fire impacts in two technical guidance documents: the December 2018 “Technical Guidance on Tracking Visibility Progress for the Second Implementation Period of the Regional Haze Program” (“2018 Visibility Tracking Guidance”), 10 and the June 2020 “Recommendation for the Use of Patched and Substituted Data and Clarification of Data Completeness for Tracking Visibility Progress for the Second Implementation Period of the Regional Haze Program” and associated Technical Addendum (“2020 Data Completeness Memo”). 11

As previously explained in the 2021 Clarifications Memo, EPA intends the second implementation period of the regional haze program to secure meaningful reductions in visibility impairing pollutants that build on the significant progress states have achieved to date. The Agency also recognizes that analyses regarding reasonable progress are state-specific and that, based on states' and sources' individual circumstances, what constitutes reasonable reductions in visibility impairing pollutants will vary from state-to-state. While there exist many opportunities for states to leverage both ongoing and upcoming emission reductions under other CAA programs, the Agency expects states to undertake rigorous reasonable progress analyses that identify further opportunities to advance the national visibility goal consistent with the statutory and regulatory requirements. See generally 2021 Clarifications Memo. This is consistent with Congress's determination that a visibility protection program is needed in addition to the CAA's National Ambient Air Quality Standards and Prevention of Significant Deterioration programs, as further emission reductions may be necessary to adequately protect visibility in Class I areas throughout the country. 12

Because the air pollutants and pollution affecting visibility in Class I areas can be transported over long distances, successful implementation of the regional haze program requires long-term, regional coordination among multiple jurisdictions and agencies that have responsibility for Class I areas and the emissions that impact visibility in those areas. In order to address regional haze, states need to develop strategies in coordination with one another, considering the effect of emissions from one jurisdiction on the air quality in another. Five regional planning organizations (RPOs), 13 which include representation from state and tribal governments, the EPA, and FLMs, were developed in the lead-up to the first implementation period to address regional haze. RPOs evaluate technical information to better understand how emissions from State and Tribal land impact Class I areas across the country, pursue the development of regional strategies to reduce emissions of particulate matter and other pollutants leading to regional haze, and help states meet the consultation requirements of the RHR.

The Mid-Atlantic/Northeast Visibility Union (MANEVU), one of the five RPOs described above, is a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Mid-Atlantic and Northeast corridor of the United States. Member states and tribal governments (listed alphabetically) include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Penobscot Indian Nation, Rhode Island, St. Regis Mohawk Tribe, and Vermont. The Federal partner members of MANEVU are EPA, U.S. National Parks Service (NPS), U.S. Fish and Wildlife Service (FWS), and U.S. Forest Service (USFS).

Under the CAA and EPA's regulations, all 50 states, the District of Columbia, and the U.S. Virgin Islands are required to submit regional haze SIPs satisfying the applicable requirements for the second implementation period of the regional haze program by July 31, 2021. Each state's SIP must contain a long-term strategy for making reasonable progress toward meeting the national goal of remedying any existing and preventing any future anthropogenic visibility impairment in Class I areas. CAA section 169A(b)(2)(B). To this end, § 51.308(f) lays out the process by which states determine what constitutes their long-term strategies, with the order of the requirements in § 51.308(f)(1) through (f)(3) generally mirroring the order of the steps in the reasonable progress analysis  14 and (f)(4) through (f)(6) containing additional, related requirements. Broadly speaking, a state first must identify the Class I areas within the state and determine the Class I areas outside the state in which visibility may be affected by emissions from the state. These are the Class I areas that must be addressed in the state's long-term strategy. See 40 CFR 51.308(f), (f)(2). For each Class I area within its borders, a state must then calculate the baseline, current, and natural visibility conditions for that area, as well as the visibility improvement made to date and the URP. See 40 CFR 51.308(f)(1). Each state having a Class I area and/or emissions that may affect visibility in a Class I area must then develop a long-term strategy that includes the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress in such areas. A reasonable progress determination is based on applying the four factors in CAA section 169A(g)(1) to sources of visibility-impairing pollutants that the state has selected to assess for controls for the second implementation period. See 40 CFR 51.308(f)(2). Additionally, as further explained below, the RHR at 40 CFR 51.308(f)(2)(iv) separately provides five “additional factors”  15 that states must consider in developing their long-term strategies. A state evaluates potential emission reduction measures for those selected sources and determines which are necessary to make reasonable progress. Those measures are then incorporated into the state's long-term strategy. After a state has developed its long-term strategy, it then establishes RPGs for each Class I area within its borders by modeling the visibility impacts of all reasonable progress controls at the end of the second implementation period, i.e., in 2028, as well as the impacts of other requirements of the CAA. The RPGs include reasonable progress controls not only for sources in the state in which the Class I area is located, but also for sources in other states that contribute to visibility impairment in that area. The RPGs are then compared to the baseline visibility conditions and the URP to ensure that progress is being made towards the statutory goal of preventing any future and remedying any existing anthropogenic visibility impairment in Class I areas. 40 CFR 51.308(f)(2)-(3).

In addition to satisfying the requirements at 40 CFR 51.308(f) related to reasonable progress, the regional haze SIP revisions for the second implementation period must address the requirements in § 51.308(g)(1) through (5) pertaining to periodic reports describing progress towards the RPGs, 40 CFR 51.308(f)(5), as well as requirements for FLM consultation that apply to all visibility protection SIPs and SIP revisions. 40 CFR 51.308(i).

A state must submit its regional haze SIP and subsequent SIP revisions to the EPA according to the requirements applicable to all SIP revisions under the CAA and EPA's regulations. See CAA section 169(b)(2); CAA section 110(a). Upon EPA approval, a SIP is enforceable by the Agency and the public under the CAA. If EPA finds that a state fails to make a required SIP revision, or if the EPA finds that a state's SIP is incomplete or if disapproves the SIP, the Agency must promulgate a federal implementation plan (FIP) that satisfies the applicable requirements. CAA section 110(c)(1).

The first step in developing a regional haze SIP is for a state to determine which Class I areas, in addition to those within its borders, “may be affected” by emissions from within the state. In the 1999 RHR, the EPA determined that all states contribute to visibility impairment in at least one Class I area, 64 FR at 35720-22, and explained that the statute and regulations lay out an “extremely low triggering threshold” for determining “whether States should be required to engage in air quality planning and analysis as a prerequisite to determining the need for control of emissions from sources within their State.” Id. at 35721.

A state must determine which Class I areas must be addressed by its SIP by evaluating the total emissions of visibility impairing pollutants from all sources within the state. While the RHR does not require this evaluation to be conducted in any particular manner, EPA's 2019 Guidance provides recommendations for how such an assessment might be accomplished, including by, where appropriate, using the determinations previously made for the first implementation period. 2019 Guidance at 8-9. In addition, the determination of which Class I areas may be affected by a state's emissions is subject to the requirement in 40 CFR 51.308(f)(2)(iii) to “document the technical basis, including modeling, monitoring, cost, engineering, and emissions information, on which the State is relying to determine the emission reduction measures that are necessary to make reasonable progress in each mandatory Class I Federal area it affects.”

As part of assessing whether a SIP submission for the second implementation period is providing for reasonable progress towards the national visibility goal, the RHR contains requirements in § 51.308(f)(1) related to tracking visibility improvement over time. The requirements of this subsection apply only to states having Class I areas within their borders; the required calculations must be made for each such Class I area. EPA's 2018 Visibility Tracking Guidance  16 provides recommendations to assist states in satisfying their obligations under § 51.308(f)(1)—specifically, in developing information on baseline, current, and natural visibility conditions, and in making optional adjustments to the URP to account for the impacts of international anthropogenic emissions and prescribed fires. See 82 FR at 3103-05.

The RHR requires tracking of visibility conditions on two sets of days: the clearest and the most impaired days. Visibility conditions for both sets of days are expressed as the average deciview index for the relevant five-year period (the period representing baseline or current visibility conditions). The RHR provides that the relevant sets of days for visibility tracking purposes are the 20% clearest (the 20% of monitored days in a calendar year with the lowest values of the deciview index) and 20% most impaired days (the 20% of monitored days in a calendar year with the highest amounts of anthropogenic visibility impairment). 17 40 CFR 51.301. A state must calculate visibility conditions for both the 20% clearest and 20% most impaired days for the baseline period of 2000-2004 and the most recent five-year period for which visibility monitoring data are available (representing current visibility conditions). 40 CFR 51.308(f)(1)(i), (iii). States must also calculate natural visibility conditions for the clearest and most impaired days, 18 by estimating the conditions that would exist on those two sets of days absent anthropogenic visibility impairment. 40 CFR 51.308(f)(1)(ii). Using all these data, states must then calculate, for each Class I area, the amount of progress made since the baseline period (2000-2004) and how much improvement is left to achieve in order to reach natural visibility conditions.

Using the data for the set of most impaired days only, states must plot a line between visibility conditions in the baseline period and natural visibility conditions for each Class I area to determine the URP—the amount of visibility improvement per year, measured in deciviews, that would need to be achieved during each implementation period in order to achieve natural visibility conditions by the end of 2064. The URP is used in later steps of the reasonable progress analysis for informational purposes and to provide a non-enforceable benchmark against which to assess a Class I area's rate of visibility improvement. 19 Additionally, in the 2017 RHR Revisions, the EPA provided states the option of proposing to adjust the endpoint of the URP to account for impacts of anthropogenic sources outside the United States and/or impacts of certain types of wildland prescribed fires. These adjustments, which must be approved by the EPA, are intended to avoid any perception that states should compensate for impacts from international anthropogenic sources and to give states the flexibility to determine that limiting the use of wildland-prescribed fire is not necessary for reasonable progress. 82 FR 3107 footnote 116.

EPA's 2018 Visibility Tracking Guidance can be used to help satisfy the 40 CFR 51.308(f)(1) requirements, including in developing information on baseline, current, and natural visibility conditions, and in making optional adjustments to the URP. In addition, the 2020 Data Completeness Memo provides recommendations on the data completeness language referenced in § 51.308(f)(1)(i) and provides updated natural conditions estimates for each Class I area.

The core component of a regional haze SIP submission is a long-term strategy that addresses regional haze in each Class I area within a state's borders and each Class I area that may be affected by emissions from the state. The long-term strategy “must include the enforceable emissions limitations, compliance schedules, and other measures that are necessary to make reasonable progress, as determined pursuant to (f)(2)(i) through (iv).” 40 CFR 51.308(f)(2). The amount of progress that is “reasonable progress” is based on applying the four statutory factors in CAA section 169A(g)(1) in an evaluation of potential control options for sources of visibility impairing pollutants, which is referred to as a “four-factor” analysis. The outcome of that analysis is the emission reduction measures that a particular source or group of sources needs to implement in order to make reasonable progress towards the national visibility goal. See 40 CFR 51.308(f)(2)(i). Emission reduction measures that are necessary to make reasonable progress may be either new, additional control measures for a source, or they may be the existing emission reduction measures that a source is already implementing. See 2019 Guidance at 43; 2021 Clarifications Memo at 8-10. Such measures must be represented by “enforceable emissions limitations, compliance schedules, and other measures” ( i.e., any additional compliance tools) in a state's long-term strategy in its SIP. 40 CFR 51.308(f)(2).

Section 51.308(f)(2)(i) provides the requirements for the four-factor analysis. The first step of this analysis entails selecting the sources to be evaluated for emission reduction measures; to this end, the RHR requires states to consider “major and minor stationary sources or groups of sources, mobile sources, and area sources” of visibility impairing pollutants for potential four-factor control analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is which visibility impairing pollutants will be analyzed. As EPA previously explained, consistent with the first implementation period, EPA generally expects that each state will analyze at least SO 2 and NO X in selecting sources and determining control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at 4. A state that chooses not to consider at least these two pollutants should demonstrate why such consideration would be unreasonable. 2021 Clarifications Memo at 4.

While states have the option to analyze all sources, the 2019 Guidance explains that “an analysis of control measures is not required for every source in each implementation period,” and that “[s]electing a set of sources for analysis of control measures in each implementation period is . . . consistent with the Regional Haze Rule, which sets up an iterative planning process and anticipates that a state may not need to analyze control measures for all its sources in a given SIP revision.” 2019 Guidance at 9. However, given that source selection is the basis of all subsequent control determinations, a reasonable source selection process “should be designed and conducted to ensure that source selection results in a set of pollutants and sources the evaluation of which has the potential to meaningfully reduce their contributions to visibility impairment.” 2021 Clarifications Memo at 3.

EPA explained in the 2021 Clarifications Memo that each state has an obligation to submit a long-term strategy that addresses the regional haze visibility impairment that results from emissions from within that state. Thus, source selection should focus on the in-state contribution to visibility impairment and be designed to capture a meaningful portion of the state's total contribution to visibility impairment in Class I areas. A state should not decline to select its largest in-state sources on the basis that there are even larger out-of-state contributors. 2021 Clarifications Memo at 4. 20

Thus, while states have discretion to choose any source selection methodology that is reasonable, whatever choices they make should be reasonably explained. To this end, 40 CFR 51.308(f)(2)(i) requires that a state's SIP submission include “a description of the criteria it used to determine which sources or groups of sources it evaluated.” The technical basis for source selection, which may include methods for quantifying potential visibility impacts such as emissions divided by distance metrics, trajectory analyses, residence time analyses, and/or photochemical modeling, must also be appropriately documented, as required by 40 CFR 51.308(f)(2)(iii).

Once a state has selected the set of sources, the next step is to determine the emissions reduction measures for those sources that are necessary to make reasonable progress for the second implementation period. 21 This is accomplished by considering the four factors—“the costs of compliance, the time necessary for compliance, and the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements.” CAA section 169A(g)(1). The EPA has explained that the four-factor analysis is an assessment of potential emission reduction measures ( i.e., control options) for sources; “use of the terms `compliance' and `subject to such requirements' in CAA section 169A(g)(1) strongly indicates that Congress intended the relevant determination to be the requirements with which sources would have to comply in order to satisfy the CAA's reasonable progress mandate.” 82 FR at 3091. Thus, for each source it has selected for four-factor analysis, 22 a state must consider a “meaningful set” of technically feasible control options for reducing emissions of visibility impairing pollutants. Id. at 3088. The 2019 Guidance provides that “[a] state must reasonably pick and justify the measures that it will consider, recognizing that there is no statutory or regulatory requirement to consider all technically feasible measures or any particular measures. A range of technically feasible measures available to reduce emissions would be one way to justify a reasonable set.” 2019 Guidance at 29.

EPA's 2021 Clarifications Memo provides further guidance on what constitutes a reasonable set of control options for consideration: “A reasonable four-factor analysis will consider the full range of potentially reasonable options for reducing emissions.” 2021 Clarifications Memo at 7. In addition to add-on controls and other retrofits ( i.e., new emission reduction measures for sources), EPA explained that states should generally analyze efficiency improvements for sources' existing measures as control options in their four-factor analyses, as in many cases such improvements are reasonable given that they typically involve only additional operation and maintenance costs. Additionally, the 2021 Clarifications Memo provides that states that have assumed a higher emission rate than a source has achieved or could potentially achieve using its existing measures should also consider lower emission rates as potential control options. That is, a state should consider a source's recent actual and projected emission rates to determine if it could reasonably attain lower emission rates with its existing measures. If so, the state should analyze the lower emission rate as a control option for reducing emissions. 2021 Clarifications Memo at 7. The EPA's recommendations to analyze potential efficiency improvements and achievable lower emission rates apply to both sources that have been selected for four-factor analysis and those that have forgone a four-factor analysis on the basis of existing “effective controls.” See 2021 Clarifications Memo at 5, 10.

After identifying a reasonable set of potential control options for the sources it has selected, a state then collects information on the four factors with regard to each option identified. The EPA has also explained that, in addition to the four statutory factors, states have flexibility under the CAA and RHR to reasonably consider visibility benefits as an additional factor alongside the four statutory factors. 23 The 2019 Guidance provides recommendations for the types of information that can be used to characterize the four factors (with or without visibility), as well as ways in which states might reasonably consider and balance that information to determine which of the potential control options is necessary to make reasonable progress. See 2019 Guidance at 30-36. The 2021 Clarifications Memo contains further guidance on how states can reasonably consider modeled visibility impacts or benefits in the context of a four-factor analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, EPA explained that while visibility can reasonably be used when comparing and choosing between multiple reasonable control options, it should not be used to summarily reject controls that are reasonable given the four statutory factors. 2021 Clarifications Memo at 13. Ultimately, while states have discretion to reasonably weigh the factors and to determine what level of control is needed, § 51.308(f)(2)(i) provides that a state “must include in its implementation plan a description of . . . how the four factors were taken into consideration in selecting the measure for inclusion in its long-term strategy.”

As explained above, § 51.308(f)(2)(i) requires states to determine the emission reduction measures for sources that are necessary to make reasonable progress by considering the four factors. Pursuant to § 51.308(f)(2), measures that are necessary to make reasonable progress towards the national visibility goal must be included in a state's long-term strategy and in its SIP. 24 If the outcome of a four-factor analysis is a new, additional emission reduction measure for a source, that new measure is necessary to make reasonable progress towards remedying existing anthropogenic visibility impairment and must be included in the SIP. If the outcome of a four-factor analysis is that no new measures are reasonable for a source, continued implementation of the source's existing measures is generally necessary to prevent future emission increases and thus to make reasonable progress towards the second part of the national visibility goal: preventing future anthropogenic visibility impairment. See CAA section 169A(a)(1). That is, when the result of a four-factor analysis is that no new measures are necessary to make reasonable progress, the source's existing measures are generally necessary to make reasonable progress and must be included in the SIP. However, there may be circumstances in which a state can demonstrate that a source's existing measures are not necessary to make reasonable progress. Specifically, if a state can demonstrate that a source will continue to implement its existing measures and will not increase its emission rate, it may not be necessary to have those measures in the long-term strategy in order to prevent future emission increases and future visibility impairment. EPA's 2021 Clarifications Memo provides further explanation and guidance on how states may demonstrate that a source's existing measures are not necessary to make reasonable progress. See 2021 Clarifications Memo at 8-10. If the state can make such a demonstration, it need not include a source's existing measures in the long-term strategy or its SIP.

As with source selection, the characterization of information on each of the factors is also subject to the documentation requirement in § 51.308(f)(2)(iii). The reasonable progress analysis, including source selection, information gathering, characterization of the four statutory factors (and potentially visibility), balancing of the four factors, and selection of the emission reduction measures that represent reasonable progress, is a technically complex exercise, but also a flexible one that provides states with bounded discretion to design and implement approaches appropriate to their circumstances. Given this flexibility, § 51.308(f)(2)(iii) plays an important function in requiring a state to document the technical basis for its decision making so that the public and the EPA can comprehend and evaluate the information and analysis the state relied upon to determine what emission reduction measures must be in place to make reasonable progress. The technical documentation must include the modeling, monitoring, cost, engineering, and emissions information on which the state relied to determine the measures necessary to make reasonable progress. This documentation requirement can be met through the provision of and reliance on technical analyses developed through a regional planning process, so long as that process and its output has been approved by all state participants. In addition to the explicit regulatory requirement to document the technical basis of their reasonable progress determinations, states are also subject to the general principle that those determinations must be reasonably moored to the statute. 25 That is, a state's decisions about the emission reduction measures that are necessary to make reasonable progress must be consistent with the statutory goal of remedying existing and preventing future visibility impairment.

The four statutory factors (and potentially visibility) are used to determine what emission reduction measures for selected sources must be included in a state's long-term strategy for making reasonable progress. Additionally, the RHR at 40 CFR 51.3108(f)(2)(iv) separately provides five “additional factors”  26 that states must consider in developing their long-term strategies: (1) Emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment; (2) measures to reduce the impacts of construction activities; (3) source retirement and replacement schedules; (4) basic smoke management practices for prescribed fire used for agricultural and wildland vegetation management purposes and smoke management programs; and (5) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the long-term strategy. The 2019 Guidance provides that a state may satisfy this requirement by considering these additional factors in the process of selecting sources for four-factor analysis, when performing that analysis, or both, and that not every one of the additional factors needs to be considered at the same stage of the process. See 2019 Guidance at 21. EPA provided further guidance on the five additional factors in the 2021 Clarifications Memo, explaining that a state should generally not reject cost-effective and otherwise reasonable controls merely because there have been emission reductions since the first planning period owing to other ongoing air pollution control programs or merely because visibility is otherwise projected to improve at Class I areas. Additionally, states generally should not rely on these additional factors to summarily assert that the state has already made sufficient progress and, therefore, no sources need to be selected or no new controls are needed regardless of the outcome of four-factor analyses. 2021 Clarifications Memo at 13.

Because the air pollution that causes regional haze crosses state boundaries, § 51.308(f)(2)(ii) requires a state to consult with other states that also have emissions that are reasonably anticipated to contribute to visibility impairment in a given Class I area. Consultation allows for each state that impacts visibility in an area to share whatever technical information, analyses, and control determinations may be necessary to develop coordinated emission management strategies. This coordination may be managed through inter- and intra-RPO consultation and the development of regional emissions strategies; additional consultations between states outside of RPO processes may also occur. If a state, pursuant to consultation, agrees that certain measures ( e.g., a certain emission limitation) are necessary to make reasonable progress at a Class I area, it must include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A). Additionally, the RHR requires that states that contribute to visibility impairment at the same Class I area consider the emission reduction measures the other contributing states have identified as being necessary to make reasonable progress for their own sources. 40 CFR 51.308(f)(2)(ii)(B). If a state has been asked to consider or adopt certain emission reduction measures, but ultimately determines those measures are not necessary to make reasonable progress, that state must document in its SIP the actions taken to resolve the disagreement. 40 CFR 51.308(f)(2)(ii)(C). The EPA will consider the technical information and explanations presented by the submitting state and the state with which it disagrees when considering whether to approve the state's SIP. See id.; 2019 Guidance at 53. Under all circumstances, a state must document in its SIP submission all substantive consultations with other contributing states. 40 CFR 51.308(f)(2)(ii)(C).

Reasonable progress goals “measure the progress that is projected to be achieved by the control measures states have determined are necessary to make reasonable progress based on a four-factor analysis.” 82 FR at 3091. Their primary purpose is to assist the public and the EPA in assessing the reasonableness of states' long-term strategies for making reasonable progress towards the national visibility goal. See 40 CFR 51.308(f)(3)(iii)-(iv). States in which Class I areas are located must establish two RPGs, both in deciviews—one representing visibility conditions on the clearest days and one representing visibility on the most anthropogenically impaired days—for each area within their borders. 40 CFR 51.308(f)(3)(i). The two RPGs are intended to reflect the projected impacts, on the two sets of days, of the emission reduction measures the state with the Class I area, as well as all other contributing states, have included in their long-term strategies for the second implementation period. 27 The RPGs also account for the projected impacts of implementing other CAA requirements, including non-SIP based requirements. Because RPGs are the modeled result of the measures in states' long-term strategies (as well as other measures required under the CAA), they cannot be determined before states have conducted their four-factor analyses and determined the control measures that are necessary to make reasonable progress. See 2021 Clarifications Memo at 6.

For the second implementation period, the RPGs are set for 2028. Reasonable progress goals are not enforceable targets, 40 CFR 51.308(f)(3)(iii); rather, they “provide a way for the states to check the projected outcome of the [long-term strategy] against the goals for visibility improvement.” 2019 Guidance at 46. While states are not legally obligated to achieve the visibility conditions described in their RPGs, § 51.308(f)(3)(i) requires that “[t]he long-term strategy and the reasonable progress goals must provide for an improvement in visibility for the most impaired days since the baseline period and ensure no degradation in visibility for the clearest days since the baseline period.” Thus, states are required to have emission reduction measures in their long-term strategies that are projected to achieve visibility conditions on the most impaired days that are better than the baseline period and show no degradation on the clearest days compared to the clearest days from the baseline period. The baseline period for the purpose of this comparison is the baseline visibility condition—the annual average visibility condition for the period 2000-2004. See 40 CFR 51.308(f)(1)(i), 82 FR at 3097-98.

So that RPGs may also serve as a metric for assessing the amount of progress a state is making towards the national visibility goal, the RHR requires states with Class I areas to compare the 2028 RPG for the most impaired days to the corresponding point on the URP line (representing visibility conditions in 2028 if visibility were to improve at a linear rate from conditions in the baseline period of 2000-2004 to natural visibility conditions in 2064). If the most impaired days RPG in 2028 is above the URP ( i.e., if visibility conditions are improving more slowly than the rate described by the URP), each state that contributes to visibility impairment in the Class I area must demonstrate, based on the four-factor analysis required under 40 CFR 51.308(f)(2)(i), that no additional emission reduction measures would be reasonable to include in its long-term strategy. 40 CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires that each state contributing to visibility impairment in a Class I area that is projected to improve more slowly than the URP provide “a robust demonstration, including documenting the criteria used to determine which sources or groups [of] sources were evaluated and how the four factors required by paragraph (f)(2)(i) were taken into consideration in selecting the measures for inclusion in its long-term strategy.” The 2019 Guidance provides suggestions about how such a “robust demonstration” might be conducted. See 2019 Guidance at 50-51.

The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also explain that projecting an RPG that is on or below the URP based on only on-the-books and/or on-the-way control measures ( i.e., control measures already required or anticipated before the four-factor analysis is conducted) is not a “safe harbor” from the CAA's and RHR's requirement that all states must conduct a four-factor analysis to determine what emission reduction measures constitute reasonable progress. The URP is a planning metric used to gauge the amount of progress made thus far and the amount left before reaching natural visibility conditions. However, the URP is not based on consideration of the four statutory factors and therefore cannot answer the question of whether the amount of progress being made in any particular implementation period is “reasonable progress.” See 82 FR at 3093, 3099-3100; 2019 Guidance at 22; 2021 Clarifications Memo at 15-16.

Section 51.308(f)(6) requires states to have certain strategies and elements in place for assessing and reporting on visibility. Individual requirements under this subsection apply either to states with Class I areas within their borders, states with no Class I areas but that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area, or both. A state with Class I areas within its borders must submit with its SIP revision a monitoring strategy for measuring, characterizing, and reporting regional haze visibility impairment that is representative of all Class I areas within the state. SIP revisions for such states must also provide for the establishment of any additional monitoring sites or equipment needed to assess visibility conditions in Class I areas, as well as reporting of all visibility monitoring data to the EPA at least annually. Compliance with the monitoring strategy requirement may be met through a state's participation in the Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring network, which is used to measure visibility impairment caused by air pollution at the 156 Class I areas covered by the visibility program. 40 CFR 51.308(f)(6), (f)(6)(i), (f)(6)(iv). The IMPROVE monitoring data is used to determine the 20% most anthropogenically impaired and 20% clearest sets of days every year at each Class I area and tracks visibility impairment over time.

All states' SIPs must provide for procedures by which monitoring data and other information are used to determine the contribution of emissions from within the state to regional haze visibility impairment in affected Class I areas. 40 CFR 51.308(f)(6)(ii), (iii). Section 51.308(f)(6)(v) further requires that all states' SIPs provide for a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area; the inventory must include emissions for the most recent year for which data are available and estimates of future projected emissions. States must also include commitments to update their inventories periodically. The inventories themselves do not need to be included as elements in the SIP and are not subject to EPA review as part of the Agency's evaluation of a SIP revision. 28 All states' SIPs must also provide for any other elements, including reporting, recordkeeping, and other measures, that are necessary for states to assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019 Guidance, a state may note in its regional haze SIP that its compliance with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51, subpart A satisfies the requirement to provide for an emissions inventory for the most recent year for which data are available. To satisfy the requirement to provide estimates of future projected emissions, a state may explain in its SIP how projected emissions were developed for use in establishing RPGs for its own and nearby Class I areas. 29

Separate from the requirements related to monitoring for regional haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a requirement at § 51.308(f)(4) related to any additional monitoring that may be needed to address visibility impairment in Class I areas from a single source or a small group of sources. This is called “reasonably attributable visibility impairment.”  30 Under this provision, if the EPA or the FLM of an affected Class I area has advised a state that additional monitoring is needed to assess reasonably attributable visibility impairment, the state must include in its SIP revision for the second implementation period an appropriate strategy for evaluating such impairment.

Section 51.308(f)(5) requires a state's regional haze SIP revision to address the requirements of paragraphs 40 CFR 51.308(g)(1) through (5) so that the plan revision due in 2021 will serve also as a progress report addressing the period since submission of the progress report for the first implementation period. The regional haze progress report requirement is designed to inform the public and the EPA about a state's implementation of its existing long-term strategy and whether such implementation is in fact resulting in the expected visibility improvement. See 81 FR 26942, 26950 (May 4, 2016), (82 FR at 3119, January 10, 2017). To this end, every state's SIP revision for the second implementation period is required to describe the status of implementation of all measures included in the state's long-term strategy, including BART and reasonable progress emission reduction measures from the first implementation period, and the resulting emissions reductions. 40 CFR 51.308(g)(1) and (2).

A core component of the progress report requirements is an assessment of changes in visibility conditions on the clearest and most impaired days. For second implementation period progress reports, § 51.308(g)(3) requires states with Class I areas within their borders to first determine current visibility conditions for each area on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i)(B), and then to calculate the difference between those current conditions and baseline (2000-2004) visibility conditions in order to assess progress made to date. See 40 CFR 51.308(g)(3)(ii)(B). States must also assess the changes in visibility impairment for the most impaired and clearest days since they submitted their first implementation period progress reports. See 40 CFR 51.308(g)(3)(iii)(B), (f)(5). Since different states submitted their first implementation period progress reports at different times, the starting point for this assessment will vary state by state.

Similarly, states must provide analyses tracking the change in emissions of pollutants contributing to visibility impairment from all sources and activities within the state over the period since they submitted their first implementation period progress reports. See 40 CFR 51.308(g)(4), (f)(5). Changes in emissions should be identified by the type of source or activity. Section 51.308(g)(5) also addresses changes in emissions since the period addressed by the previous progress report and requires states' SIP revisions to include an assessment of any significant changes in anthropogenic emissions within or outside the state. This assessment must include an explanation of whether these changes in emissions were anticipated and whether they have limited or impeded progress in reducing emissions and improving visibility relative to what the state projected based on its long-term strategy for the first implementation period.

CAA section 169A(d) requires that before a state holds a public hearing on a proposed regional haze SIP revision, it must consult with the appropriate FLM or FLMs; pursuant to that consultation, the state must include a summary of the FLMs' conclusions and recommendations in the notice to the public. Consistent with this statutory requirement, the RHR also requires that states “provide the [FLM] with an opportunity for consultation, in person and at a point early enough in the State's policy analyses of its long-term strategy emission reduction obligation so that information and recommendations provided by the [FLM] can meaningfully inform the State's decisions on the long-term strategy.” 40 CFR 51.308(i)(2). Consultation that occurs 120 days prior to any public hearing or public comment opportunity will be deemed “early enough,” but the RHR provides that in any event the opportunity for consultation must be provided at least 60 days before a public hearing or comment opportunity. This consultation must include the opportunity for the FLMs to discuss their assessment of visibility impairment in any Class I area and their recommendations on the development and implementation of strategies to address such impairment. 40 CFR 51.308(i)(2). In order for the EPA to evaluate whether FLM consultation meeting the requirements of the RHR has occurred, the SIP submission should include documentation of the timing and content of such consultation. The SIP revision submitted to the EPA must also describe how the state addressed any comments provided by the FLMs. 40 CFR 51.308(i)(3). Finally, a SIP revision must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas. 40 CFR 51.308(i)(4).

CT DEEP submitted its regional haze SIP for the first implementation period to the EPA on November 18, 2009, and supplemented it on February 24, 2012, and March 12, 2012. The EPA approved Connecticut's first implementation period regional haze SIP submission on July 10, 2014 (79 FR 39322). EPA's approval included, but was not limited to, the portions of the plan that address the reasonable progress requirements, Connecticut's maintenance of nitrogen oxide emissions controls, as well as Connecticut's low sulfur fuel program. The requirements for regional haze SIPs for the first implementation period are contained in 40 CFR 51.308(d) and (e). 40 CFR 51.308(b). Pursuant to 40 CFR 51.308(g), Connecticut was also responsible for submitting a five-year progress report as a SIP revision for the first implementation period, which it did on June 30, 2015. The EPA approved the progress report into the Connecticut SIP on November 26, 2019 (84 FR 65007).

In accordance with CAA sections 169A and the RHR at 40 CFR 51.308(f), on January 5, 2022, Connecticut submitted a revision to the Connecticut SIP to address its regional haze obligations for the second implementation period, which runs through 2028. Connecticut made a draft Regional Haze SIP submission available for public comment on December 3, 2020. Connecticut has included the public comments and its responses to those comments in the submission.

The following sections describe Connecticut's SIP submission, including analyses conducted by MANEVU and Connecticut's determinations based on those analyses, Connecticut's assessment of progress made since the first implementation period in reducing emissions of visibility impairing pollutants, and the visibility improvement progress at nearby Class I areas. This document also contains EPA's evaluation of Connecticut's submission against the requirements of the CAA and RHR for the second implementation period of the regional haze program.

Section 169A(b)(2) of the CAA requires each state in which any Class I area is located or “the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility” in a Class I area to have a plan for making reasonable progress toward the national visibility goal. The RHR implements this statutory requirement at 40 CFR 51.308(f), which provides that each state's plan “must address regional haze in each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State that may be affected by emissions from within the State,” and (f)(2), which requires each state's plan to include a long-term strategy that addresses regional haze in such Class I areas. Connecticut has no mandatory Class I Federal area within its borders.

For the second implementation period, MANEVU performed technical analyses  31 to help assess source and state-level contributions to visibility impairment and the need for interstate consultation. MANEVU used the results of these analyses to determine which states' emissions “have a high likelihood of affecting visibility in MANEVU's Class I areas.”  32 Similar to metrics used in the first implementation period, 33 MANEVU used a greater than 2 percent of sulfate plus nitrate emissions contribution criteria to determine whether emissions from individual jurisdictions within the region affected visibility in any Class I areas. The MANEVU analyses for the second implementation period used a combination of data analysis techniques, including emissions data, distance from Class I areas, wind trajectories, and CALPUFF dispersion modeling. Although many of the analyses focused only on SO 2 emissions and resultant particulate sulfate contributions to visibility impairment, some also incorporated NO X emissions to estimate particulate nitrate contributions.

One MANEVU analysis used for contribution assessment was CALPUFF air dispersion modeling. The CALPUFF model was used to estimate sulfate and nitrate formation and transport in MANEVU and nearby regions originating from large electric generating unit (EGU) point sources and other large industrial and institutional sources in the eastern and central United States. Information from an initial round of CALPUFF modeling was collated for the 444 EGUs that were determined to warrant further scrutiny based on their emissions of SO 2 and NO X . The list of EGUs was based on an enhanced “Q/d” analysis  34 that considered recent SO 2 emissions in the eastern United States and an analysis that adjusted previous 2002 MANEVU CALPUFF modeling by applying a ratio of 2011 to 2002 SO 2 emissions. This list of sources was then enhanced by including the top five SO 2 and NO X emission sources for 2011 for each state included in the modeling domain. A total of 311 EGU stacks (as opposed to individual units) were included in the CALPUFF modeling analysis. Initial information was also collected on the 50 industrial and institutional sources that, according to 2011 Q/d analysis, contributed the most to visibility impact in each Class I area. The ultimate CALPUFF modeling run included a total of 311 EGU stacks and 82 industrial facilities. The summary report for the CALPUFF modeling included the top 10 most impacting EGUs and the top 5 most impacting industrial/institutional sources for each Class I area and compiled those results into a ranked list of the most impacting EGUs and industrial sources at MANEVU Class I areas. 35 Overall, MANEVU found that emission sources located close to Class I areas typically show higher visibility impacts than similarly sized facilities further away. However, visibility degradation appears to be dominated by the more distant emission sources due to their larger emissions. Connecticut had three EGUs identified in the CALPUFF modeling as having a magnitude of emissions located close enough to a Class I area that they could have the potential for visibility impacts: Middletown Unit 4, Bridgeport Harbor Station Unit 3, and New Haven Harbor Unit 1. 36

As explained above, the EPA concluded in the 1999 RHR that “all [s]tates contain sources whose emissions are reasonably anticipated to contribute to regional haze in a Class I area,” 64 FR at 35721, and this determination was not changed in the 2017 RHR. Critically, the statute and regulation both require that the cause-or-contribute assessment consider all emissions of visibility-impairing pollutants from a state, as opposed to emissions of a particular pollutant or emissions from a certain set of sources. Consistent with these requirements, the 2019 Guidance makes it clear that “all types of anthropogenic sources are to be included in the determination” of whether a state's emissions are reasonably anticipated to result in any visibility impairment. 2019 Guidance at 8.

The screening analyses on which MANEVU relied are useful for certain purposes. MANEVU used information from its technical analysis to rank the largest contributing states to sulfate and nitrate impairment in the seven MANEVU Class I areas and three additional, nearby Class I areas. 37 The rankings were used to determine upwind states that MANEVU deemed important to include in state-to-state consultation based on an identified visibility impact screening threshold. Additionally, large individual source impacts were used to target MANEVU control analysis “Asks”  38 of states and sources both within and upwind of MANEVU. 39 The EPA finds the nature of the analyses generally appropriate to support decisions on states with which to consult. However, we have cautioned that source selection methodologies that target the largest regional contributors to visibility impairment across multiple states may not be reasonable for a particular state if it results in few or no sources being selected for subsequent analysis. 2021 Clarifications Memo at 3.

With regard to the analysis and determinations regarding Connecticut's contribution to visibility impairment at out-of-state Class I areas, the MANEVU technical work focuses on the magnitude of visibility impacts from certain Connecticut emissions on nearby Class I areas. The MANEVU contribution screening results estimate Connecticut's highest percent mass-weighted sulfate and nitrate contribution to be 1.4% at Moosehorn Wilderness and Roosevelt Campobello International Park, with Acadia National Park and the Lye Brook Wilderness the next closest Class I areas impacted by Connecticut emissions at 1.3% and 1.2%, respectively. 40 However, the MANEVU analyses did not account for all emissions and all components of visibility impairment ( e.g., primary PM emissions, and impairment from fine PM, elemental carbon, and organic carbon). In addition, Q/d analyses with a relatively simplistic accounting for wind trajectories and CALPUFF applied to a very limited set of EGUs and major industrial sources of SO 2 and NO X are not scientifically rigorous tools capable of evaluating contribution to visibility impairment from all emissions in a state. The EPA acknowledges that the contribution to visibility impairment from Connecticut's emissions at nearby out-of-state Class I areas is smaller than that from numerous other states. While some MANEVU states noted that the contributions from several states outside the MANEVU region are significantly larger than its own, we again clarify that each state is obligated under the CAA and RHR to address regional haze visibility impairment resulting from emissions from within the state, irrespective of whether another state's contribution is greater. See 2021 Clarifications Memo at 3. Additionally, we note that the 2 percent or greater sulfate-plus-nitrate threshold used to determine whether Connecticut emissions contribute to visibility impairment at a particular Class I area may be higher than what EPA believes is an “extremely low triggering threshold” intended by the statute and regulations. In sum, based on the information provided, it is clear that emissions from Connecticut have relatively small contributions to Class I areas. However, due to the low triggering threshold implied by the Rule and the lack of rigorous modeling analyses, we do not necessarily agree with the level of the State's 2% contribution threshold.

In any event, pursuant to the regulatory requirements, Connecticut took part in the emission control strategy consultation process as a member of MANEVU. As part of that process, MANEVU developed a set of emissions reduction measures identified as being necessary to make reasonable progress in the seven MANEVU Class I areas. This strategy consists of six Asks for states within MANEVU and five Asks for states outside the region that were found to impact visibility at Class I areas within MANEVU. 41 Connecticut's submission discusses each of the Asks and explains why or why not each is applicable and how it has complied with the relevant components of the emissions control strategy the MANEVU states laid out. Connecticut worked with MANEVU to determine potential reasonable measures that could be implemented by 2028, considering the cost of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts, and the remaining useful life of any potentially affected sources. 42 As discussed in further detail below, the EPA is proposing to find that Connecticut has submitted a regional haze plan that meets the requirements of 40 CFR 51.308(f)(2) related to the development of a long-term strategy. Thus, we propose to find that Connecticut has satisfied the applicable requirements for making reasonable progress towards natural visibility conditions in Class I areas that may be affected by emissions from the state.

Section 51.308(f)(1) requires states to determine the following for “each mandatory Class I Federal area located within the State”: baseline visibility conditions for the most impaired and clearest days, natural visibility conditions for the most impaired and clearest days, progress to date for the most impaired and clearest days, the differences between current visibility conditions and natural visibility conditions, and the URP. This section also provides the option for states to propose adjustments to the URP line for a Class I area to account for visibility impacts from anthropogenic sources outside the United States and/or the impacts from wildland prescribed fires that were conducted for certain, specified objectives. 40 CFR 51.308(f)(1)(vi)(B).

Connecticut has no Class I areas. MANEVU Class I areas, as well as other nearby Class I areas that MANEVU examined, are listed below. MANEVU used certain areas (as noted below) to represent nearby Class I areas where monitors do not exist. 43

The MANEVU Class I Areas are Lye Brook Wilderness Area (Vermont), Great Gulf Wilderness Area (New Hampshire) (used to represent Presidential Range—Dry River Wilderness Area), Presidential Range—Dry River Wilderness Area (New Hampshire), Acadia National Park (Maine), Moosehorn Wildlife Refuge (Maine) (used to represent Roosevelt Campobello International Park), Roosevelt Campobello International Park (New Brunswick, Canada), Brigantine Wildlife Refuge (New Jersey). Nearby Class I Areas consist of Dolly Sods Wilderness Area (West Virginia) (used to represent Otter Creek Wilderness Area), Otter Creek Wilderness Area (West Virginia), Shenandoah National Park (Virginia), and James River Face Wilderness Area (Virginia).

Each state having a Class I area within its borders or emissions that may affect visibility in a Class I area must develop a long-term strategy for making reasonable progress towards the national visibility goal. CAA section 169A(b)(2)(B). As explained in the Background section of this document, reasonable progress is achieved when all states contributing to visibility impairment in a Class I area are implementing the measures determined—through application of the four statutory factors to sources of visibility impairing pollutants—to be necessary to make reasonable progress. 40 CFR 51.308(f)(2)(i). Each state's long-term strategy must include the enforceable emission limitations, compliance schedules, and other measures that are necessary to make reasonable progress. 40 CFR 51.308(f)(2). All new ( i.e., additional) measures that are the outcome of four-factor analyses are necessary to make reasonable progress and must be in the long-term strategy. If the outcome of a four-factor analysis and other measures necessary to make reasonable progress is that no new measures are reasonable for a source, that source's existing measures are necessary to make reasonable progress, unless the state can demonstrate that the source will continue to implement those measures and will not increase its emission rate. Existing measures that are necessary to make reasonable progress must also be in the long-term strategy. In developing its long-term strategies, a state must also consider the five additional factors in § 51.308(f)(2)(iv). As part of its reasonable progress determinations, the state must describe the criteria used to determine which sources or group of sources were evaluated ( i.e., subjected to four-factor analysis) for the second implementation period and how the four factors were taken into consideration in selecting the emission reduction measures for inclusion in the long-term strategy. 40 CFR 51.308(f)(2)(i).

The following section summarizes how Connecticut's SIP submission addressed the requirements of § 51.308(f)(2)(i); specifically, it describes MANEVU's development of the six Asks and how Connecticut addressed each. The regulations Connecticut identifies as a result of its responses to the six Asks comprise Connecticut's long-term strategy for the second planning period to address regional haze visibility impairment for each mandatory Class I Federal area that may be affected by emissions from Connecticut. When developing the Asks with the other MANEVU states and applying them to sources in Connecticut, the State considered the four statutory factors and the additional regulatory factors and identified emissions control measures necessary to make reasonable progress towards the goal of preventing of any future, and remedying any existing, anthropogenic visibility impairment in Class I areas that may be affected by emissions from Connecticut. Connecticut's SIP submission describes how it plans to meet the long-term strategy requirements defined by the State and MANEVU via its responses to the “Asks.” The EPA's evaluation of Connecticut's long-term strategy is contained in section IV.E.b.

States may rely on technical information developed by the RPOs of which they are members to select sources for four-factor analysis and to conduct that analysis, as well as to satisfy the documentation requirements under § 51.308(f). Where an RPO has performed source selection and/or four-factor analyses (or considered the five additional factors in § 51.308(f)(2)(iv)) for its member states, those states may rely on the RPO's analyses for the purpose of satisfying the requirements of § 51.308(f)(2)(i) so long as the states have a reasonable basis to do so and all state participants in the RPO process have approved the technical analyses. 40 CFR 51.308(f)(2)(iii). States may also satisfy the requirement of § 51.308(f)(2)(ii) to engage in interstate consultation with other states that have emissions that are reasonably anticipated to contribute to visibility impairment in a given Class I area under the auspices of intra- and inter-RPO engagement.

Connecticut is a member of the MANEVU RPO and participated in the RPO's regional approach to developing a strategy for making reasonable progress towards the national visibility goal in the MANEVU Class I areas. MANEVU's strategy includes a combination of: (1) measures for certain source sectors and groups of sectors that the RPO determined were reasonable for states to pursue, and (2) a request for member states to conduct four-factor analyses for individual sources that it identified as contributing to visibility impairment. MANEVU refers to each of the components of its overall strategy as an “Ask” of its member states. On August 25, 2017, the Executive Director of MANEVU, on behalf of the MANEVU states and tribal nations, signed a statement that identifies six emission reduction measures that comprise the Asks for the second implementation period. 44 The Asks were “designed to identify reasonable emission reduction strategies that must be addressed by the states and tribal nations of MANEVU through their regional haze SIP updates.”  45 The statement explains that “[i]f any State cannot agree with or complete a Class I State's Asks, the State must describe the actions taken to resolve the disagreement in the Regional Haze SIP.”  46

MANEVU's recommendations as to the appropriate control measures were based on technical analyses documented in the RPO's reports and included as appendices to, or referenced in, Connecticut's regional haze SIP submission. One of the initial steps of MANEVU's technical analysis was to determine which visibility-impairing pollutants should be the focus of its efforts for the second implementation period. In the first implementation period, MANEVU determined that sulfates were the most significant visibility impairing pollutant at the region's Class I areas. To determine the impact of certain pollutants on visibility at Class I areas for the purpose of second implementation period planning, MANEVU conducted an analysis comparing the pollutant contribution on the clearest and most impaired days in the baseline period (2000-2004) to the most recent period (2012-2016)  47 at MANEVU and nearby Class I areas. MANEVU found that while SO 2 emissions were decreasing and visibility was improving, sulfates still made up the most significant contribution to visibility impairment at MANEVU and nearby Class I areas. According to the analysis, NO X emissions have begun to play a more significant role in visibility impacts in recent years as SO 2 emissions have decreased. The technical analyses used by Connecticut are included in its submission and are as follows:  48

• 2016 Updates to the Assessment of Reasonable Progress for Regional Haze in MANEVU Class I Areas;

• Impact of Wintertime SCR/SNCR Optimization on Visibility Impairing Nitrate Precursor Emissions. November 2017;

• High Electric Demand Days and Visibility Impairment in MANEVU. December 2017;

• Benefits of Combined Heat and Power Systems for Reducing Pollutant Emissions in MANEVU States. March 2016;

• 2016 MANEVU Source Contribution Modeling Report—CALPUFF Modeling of Large Electrical Generating Units and Industrial Sources. April 4, 2017;

• Contribution Assessment Preliminary Inventory Analysis. October 10, 2016;

• Four-Factor Data Collection Memo. March 2017;

• Status of the Top 167 Stacks from the 2008 MANEVU Ask. July 2016;

• Mid-Atlantic/Northeast U.S. Visibility Data, 2004-2019 (2nd RH SIP Metrics);

• Selection of States for MANEVU Regional Haze Consultation 2018;

• Ozone Transport Commission/MANEVU 2011 Based Modeling Platform Support Document October (2018 Update).

MANEVU gathered information on each of the four statutory factors for six source sectors it determined, based on an examination of annual emission inventories, “had emissions [of SO 2 and/or NO X ] that were reasonabl[y] anticipated to contribute to visibility degradation in MANEVU:” electric generating units (EGUs), industrial/commercial/institutional boilers (ICI boilers), cement kilns, heating oil, residential wood combustion, and outdoor wood combustion. 49 MANEVU also collected data on individual sources within the EGU, ICI boiler, and cement kiln sectors. 50 Information for the six sectors included explanations of technically feasible control options for SO 2 or NO X, illustrative cost-effectiveness estimates for a range of model units and control options, sector-wide cost considerations, potential time frames for compliance with control options, potential energy and non-air-quality environmental impacts of certain control options, and how the remaining useful lives of sources might be considered in a control analysis. 51 Source-specific data included SO 2 emissions  52 and existing controls  53 for certain existing EGUs, ICI boilers, and cement kilns. MANEVU considered this information on the four factors as well as the analyses developed by the RPO's Technical Support Committee when it determined specific emission reduction measures that were found to be reasonable for certain sources within two of the sectors it had examined—EGUs and ICI boilers. 54 The Asks were based on this analysis and looked to either optimize the use of existing controls, have states conduct further analysis on EGU or ICI boilers with considerable visibility impacts, implement low sulfur fuel standards, or lock-in lower emission rates.

MANEVU Ask 1 is “Electric Generating Units (EGUs) with a nameplate capacity larger than or equal to 25 MW with already installed NO X and/or SO 2 controls—ensure the most effective use of control technologies on a year-round basis to consistently minimize emissions of haze precursors or obtain equivalent alternative emission reductions.” MANEVU observed that EGUs often only run NO X emissions controls to comply with ozone season trading programs and consequently, NO X sources may be uncontrolled during the winter and non-peak summer days. MANEVU found that: (1) running existing installed controls [selective catalytic reduction (SCR) and selective non-catalytic reduction (SNCR)] is one of the most cost-effective ways to control NO X emissions from EGUs; and (2) that running existing controls year-round could substantially reduce the NO X emissions in many of the states upwind of Class I areas in MANEVU that lead to visibility impairment during the winter from nitrates. 55 MANEVU included this as an emission management strategy because large EGUs had already been identified as dominant contributors to visibility impairment and the low cost of running already installed controls made it reasonable.

Connecticut identified 33 EGU units that meet the criteria of 25 MW or larger with installed controls. 56 Connecticut explained that all of these units identified are turbines with Selective Catalytic Reduction (SCR) to control nitrogen oxides with the exception of Middletown Unit 3, which is a boiler controlled by Selective Non-Catalytic Reduction (SNCR) to reduce emissions of nitrogen oxides. Connecticut further explained that these sources are subject to requirements to maintain and operate the control equipment to minimize emissions and are made enforceable through record keeping and reporting requirements contained in Regulations of Connecticut State Agencies (RCSA) section 22a-174-7 and the indicated new source review permits. These units are all Title V sources, and the requirements and enforceability are reviewed at least once every five years and are federally enforceable as well. Connecticut also noted that are no electric generating units of 25 MW or more with control devices to treat emissions of sulfur oxides and that Connecticut generally addresses sulfur emissions “on the front end” via sulfur-in-fuel restrictions. 57 Connecticut concluded that it has therefore met the requirements of Ask 1.

MANEVU Ask 2 consists of a request that states “Emission sources modeled by MANEVU that have the potential for 3.0 Mm −1 or greater visibility impacts at any MANEVU Class I area, as identified by MANEVU contribution analyses . . . perform a four-factor analysis for reasonable installation or upgrade to emission controls.” Based on an examination of visibility impact modeling results, MANEVU concluded that a 3.0 Mm −1 cutoff captured an appropriately-sized group of sources contributing the largest percentage of visibility impairing pollutants to Class I areas in the MANEVU states. 58 For units identified for the Ask 2 analysis, MANEVU requested that states determine reasonable controls through the consideration of the four factors on a state-by-state and unit-by-unit basis. MANEVU's analysis for Ask 2 did not identify any units in Connecticut with a potential impact of at least 3.0 Mm −1 . 59 Connecticut notes that the highest estimated impact from any Connecticut source to any Class I area is just over 1.0 Mm −1 . Furthermore, this particular source—Bridgeport Harbor Station Unit 3—shuttered in 2021. 60 Based on the lack of identified sources at or above the 3.0 Mm −1 threshold, Connecticut concluded that it met Ask 2.

MANEVU Ask 3 is: “Each MANEVU State that has not yet fully adopted an ultra-low sulfur fuel oil standard as requested by MANEVU in 2007—pursue this standard as expeditiously as possible and before 2028, depending on supply availability, where the standards are as follows: a. distillate oil to 0.0015% sulfur by weight (15 ppm); b. #4 residual oil within a range of 0.25 to 0.5% sulfur by weight; and c. #6 residual oil within a range of 0.3 to 0.5% sulfur by weight.” Connecticut explained that the State has an ultra-low sulfur fuel program, with the most recent sulfur content limitations effective as of July 1, 2018. Connecticut's ultra-low sulfur fuel program consists of Connecticut General Statutes (CGS) section 16a-21a and RCSA sections 22a-174-19a and 22a-174-19b. CGS 16a-21a and RCSA 22a-174-19a limit the sulfur content of home heating oil to 15ppm and the sulfur content of off-road diesel to 3000 ppm (0.3%S). RCSA 22a-174-19b further limits sulfur content of fuel oil sold in Connecticut for use in stationary sources to 15 ppm for distillate and 3000 ppm (0.3%S) for aviation and residual fuels. EPA approved the latest revisions of these rules into Connecticut's SIP on May 25, 2016 (81 FR 33134). Based on the above, Connecticut concluded that the State's low sulfur fuel program meets Ask 3.

MANEVU Ask 4 requests states to update permits to “lock in” lower emissions rates for NO X , SO 2 , and PM at emissions sources larger than 250 million British Thermal Units (MMBtu) per hour heat input that have switched operations to lower emitting fuels. Connecticut explained that EGUs and large sources in the State are subject to Title V permitting requirements under RCSA section 22a-174-33, and that the permits for these sources are reviewed every five years and specify allowable operating scenarios, including the type of fuels fired. Connecticut further explained that Title V permit conditions for these sources related to lower emitting fuels stem from Connecticut's sulfur-in-fuel regulations (RCSA sections 22a-174-19a and -19b), New Source Review (NSR) permits, and trading orders that restrict oil firing in favor of natural gas. A change in fuel type not allowed by permit would trigger requirements for a new or modified permit under RCSA section 22a-174-3a and -33. Connecticut concluded that it therefore met the requirements of Ask 4.

Ask 5 requests that MANEVU states “control NO X emissions for peaking combustion turbines that have the potential to operate on high electric demand days” by either: (1) Meeting NO X emissions standards specified in the Ask for turbines that run on natural gas and fuel oil, (2) performing a four-factor analysis for reasonable installation of or upgrade to emission controls, or (3) obtaining equivalent emission reductions on high electric demand days. 61 The Ask requests states to strive for NO X emission standards of no greater than 25 ppm for natural gas and 42 ppm for fuel oil, or at a minimum, NO X emissions standards of no greater than 42 ppm for natural gas and 96 ppm at for fuel oil.

Connecticut identified two state regulations EPA previously approved into Connecticut's SIP that limit NO X emissions from electric generating units and other stationary sources. RCSA section 22a-174-22e (86 FR 37053) prescribes averaging times and emission limits for units at major sources of NO X . RCSA section 22a-174-22f (82 FR 35454) applies to generators at non-major facilities during the summer season, and section 22a-174-22f(e)(4) requires that any affected unit that exceeds the allowable daily thresholds is to be subject to the same limits that apply to sources in RCSA section 22a-174-22e. The requirements of RCSA section 22a-174-22e were phased-in over two implementation periods. The first phase became effective June 1, 2018, and the second phase became effective June 1, 2023. Under Phase 2, daily NO X limits for combined cycle turbines are set at 25 ppm for natural gas and 42 ppm for fuel oil, RCSA section 22a-174-22e(d)(5)(C), and daily NO X limits for simple cycle turbines are set at 40 ppm for natural gas and 50 ppm for fuel oil, id. section 22a-174-22e(d)(4)(C). Connecticut noted that these already adopted rules to control nitrogen oxide emissions from peaking turbines are at least as stringent as the limits in Ask 5. 62 Therefore, Connecticut concluded that it fully addressed Ask 5.

The last Ask for states within MANEVU (Ask 6) requests states to report in their regional haze SIPs about programs that decrease energy demand and increase the use of combined heat and power (CHP) and other distributed generation technologies such as fuel cells, wind and solar. Connecticut asserted that the state continues to support programs to increase energy efficiency, CHP, and other clean energy technologies. The submittal provides as an example Energize Connecticut SM , which it describes as an initiative of the Connecticut Energy Efficiency Fund, the Connecticut Green Bank, the State, and local utilities dedicated to saving energy and building a clean energy future for everyone in the state. The initiative has funding support from a charge on customer energy bills. Connecticut reports that energy savings efforts through 2018 have resulted in emissions avoidance of the equivalent of one 130 MW power plant. Connecticut also identified off-shore wind programs, State Executive Order No. 3 (which commits the CT DEEP, in consultation with the Connecticut Public Utilities Regulatory Authority to analyze and recommend strategies for achieving a carbon emissions free goal for the electricity-generating sector by 2040), and the state's membership in the Regional Greenhouse Gas Initiative (RGGI) as programs that provide air quality benefits. Connecticut therefore concluded that it satisfies Ask 6.

In summary, Connecticut identified the following SIP-approved programs as necessary for reasonable progress and therefore included in the State's long term strategy: RCSA 22a-174-19a, Control of sulfur dioxide emissions from power plants and other large stationary sources of air pollution; RCSA 22a-174-19b, Fuel sulfur content limitations for stationary sources; RCSA 22a-174-22e, Control of nitrogen oxides emissions from fuel-burning equipment at major stationary sources of nitrogen oxides; RCSA 22a-174-22f, High daily NO X emitting units at non-major sources of NO X ; and RCSA 22a-174-38, Municipal Waste Combustors. 63

The EPA is proposing to find that Connecticut has satisfied the requirements of § 51.308(f)(2)(i) related to evaluating sources and determining the emission reduction measures that are necessary to make reasonable progress by considering the four statutory factors. We are proposing to find that Connecticut has satisfied the four-factor analysis requirement through its analysis and actions to address MANEVU Ask 3.

As explained above, Connecticut relied on MANEVU's technical analyses and framework ( i.e., the Asks) to select sources and develop its long-term strategy. MANEVU conducted an inventory analysis to identify the source sectors that produced the greatest amount of SO 2 and NO X emissions in 2011; inventory data were also projected to 2018. Based on this analysis, MANEVU identified the top-emitting sectors for each of the two pollutants, which for SO 2 include coal-fired EGUs, industrial boilers, oil-fired EGUs, and oil-fired area sources including residential, commercial, and industrial sources. Major-emitting sources of NO X include on-road vehicles, non-road vehicles, and EGUs. 64 The RPO's documentation explains that “[EGUs] emitting SO 2 and NO X and industrial point sources emitting SO 2 were found to be sectors with high emissions that warranted further scrutiny. Mobile sources were not considered in this analysis because any ask concerning mobile sources would be made to EPA and not during the intra-RPO and inter-RPO consultation process among the states and tribes.”  65 EPA proposes to find that Connecticut reasonably evaluated the two pollutants—SO 2 and NO X —that currently drive visibility impairment within the MANEVU region and that it adequately explained and supported its decision to focus on these two pollutants through its reliance on the MANEVU technical analyses cited in its submission.

Section 51.308(f)(2)(i) requires states to evaluate and determine the emission reduction measures that are necessary to make reasonable progress by applying the four statutory factors to sources in a control analysis. As explained previously, the MANEVU Asks are a mix of measures for sectors and groups of sources identified as reasonable for states to address in their regional haze plans. Several of the Asks include analyses of emissions controls, and Connecticut identifies numerous existing controls that are in the SIP and are included in the long-term strategy. While MANEVU formulated the Asks to be “reasonable emission reduction strategies” to control emissions of visibility impairing pollutants, 66 Ask 3 (adoption of ultra-low sulfur fuel oil) engages with the requirement that states determine the emission reduction measures that are necessary to make reasonable progress through consideration of the four factors. As laid out in further detail below, the EPA is proposing to find that MANEVU's four-factor analysis conducted to support the emission reduction measures in Ask 3, satisfies the requirement of § 51.308(f)(2)(i). The emission reduction measures that are necessary to make reasonable progress must be included in the long-term strategy, i.e., in Connecticut's SIP. 40 CFR 51.308(f)(2).

Connecticut asserted that it satisfies Ask 1 because the state permits for the EGUs covered by this Ask include year-round emission limits and require that controls be run at all times the units are in operation and emitting air pollutants. Furthermore, the requirements to maintain and operate the control equipment to minimize emissions are made enforceable through record keeping and reporting requirements contained in previously SIP-approved RCSA section 22a-174-7 (79 FR 41427) and New Source Review permits. As each of these units are at Title V sources, the requirements are federally enforceable, and Connecticut renews the permits every five years. EPA thus agrees that Connecticut satisfied Ask 1.

Ask 2 addresses the sources MANEVU determined have the potential for larger than, or equal to, 3.0 Mm −1 visibility impact at any MANEVU Class I area; the Ask requests MANEVU states to conduct four-factor analyses for the specified sources within their borders. This Ask explicitly engages with the statutory and regulatory requirement to determine reasonable progress based on the four factors; MANEVU considered it “reasonable to have the greatest contributors to visibility impairment conduct a four-factor analysis that would determine whether emission control measures should be pursued and what would be reasonable for each source.”  67

As an initial matter, EPA does not generally agree that 3.0 Mm −1 visibility impact is a reasonable threshold for source selection. The RHR recognizes that, due to the nature of regional haze visibility impairment, numerous and sometimes relatively small sources may need to be selected and evaluated for control measures in order to make reasonable progress. See 2021 Clarifications Memo at 4. As explained in the 2021 Clarifications Memo, while states have discretion to choose any source selection threshold that is reasonable, “[a] state that relies on a visibility (or proxy for visibility impact) threshold to select sources for four-factor analysis should set the threshold at a level that captures a meaningful portion of the state's total contribution to visibility impairment to Class I areas.” 2021 Memo at 3. In this case, the 3.0 Mm −1 threshold did not identify any sources in Connecticut (and identified only 22 across the entire MANEVU region), indicating that it may be unreasonably high. We also note, however, that the 3.0 Mm −1 threshold used in this Ask is only one part of the MANEVU source identification process and that being below this threshold did not necessarily exclude a source from additional review in connection with another Ask.

The EPA agrees that Connecticut reasonably determined it has satisfied Ask 2. As explained above, while we do not generally agree that a 3.0 Mm −1 threshold for selecting sources for four-factor analysis results in a set of sources the evaluation of which has the potential to meaningfully reduce the state's contribution to visibility impairment, the MANEVU analysis did not identify any sources in Connecticut with an impact at or above 3.0 Mm −1 . EPA notes that the MANEVU analysis also did not identify any sources in Connecticut above 2.0 Mm −1 and only once source above 1 Mm −1 : Bridgeport Harbor Station Unit 3 (at 1.22 Mm −1 ), 68 which permanently retired on May 31, 2021. The State of Connecticut has revoked the permit for this unit  69 and has committed funding to assist in demolishing the facility and redeveloping the site. 70

Ask 3, which addresses the sulfur content of heating oil used in MANEVU states, is based on a four-factor analysis for the heating oil sulfur reduction regulations contained in that Ask;  71 specifically, for the control strategy of reducing the sulfur content of distillate oil to 15 ppm. The analysis started with an assessment of the costs of retrofitting refineries to produce 15 ppm heating oil in sufficient quantities to support implementation of the standard, as well as the impacts of requiring a reduction in sulfur content on consumer prices. The analysis noted that, as a result of previous EPA rulemakings to reduce the sulfur content of on-road and non-road-fuels to 15 ppm, technologies are currently available to achieve sulfur reductions and many refiners are already meeting this standard, meaning that the capital investments for further reductions in the sulfur content of heating oil are expected to be relatively low compared to costs incurred in the past. The analysis also examined, by way of example, the impacts of New York's existing 15 ppm sulfur requirements on heating oil prices and concluded that the cost associated with reducing sulfur was relatively small in terms of the absolute price of heating oil compared to the magnitude of volatility in crude oil prices. It also noted that the slight price premium is compensated by cost savings due to the benefits of lower-sulfur fuels in terms of equipment life and maintenance and fuel stability. Consideration of the time necessary for compliance with a 15 ppm sulfur standard was accomplished through a discussion of the amount of time refiners had needed to comply with the EPA's on-road and non-road fuel 15 ppm requirement, and the implications existing refinery capacity and distribution infrastructure may have for compliance times with a 15 ppm heating oil standard. The analysis concluded that with phased-in timing for states that have not yet adopted a 15 ppm heating oil standard there “appears to be sufficient time to allow refiners to add any additional heating oil capacity that may be required.”  72 The analysis further noted the beneficial energy and non-air quality environmental impacts of a 15 ppm sulfur heating oil requirement and that reducing sulfur content may also have a salutary impact on the remaining useful life of residential furnaces and boilers. 73

The EPA agrees that Connecticut reasonably relied on MANEVU's four-factor analysis for a low-sulfur fuel oil regulation, which engaged with each of the statutory factors and explained how the information supported a conclusion that a 15 ppm sulfur fuel oil standard for fuel oils is reasonable. As noted above, RCSA 22a-174-19a limits the sulfur content of home heating oil to 15 ppm and the sulfur content of off-road diesel to 3000 ppm (0.3%S). RCSA 22a-174-19b further limits sulfur content of fuel oil sold in Connecticut for use in stationary sources to 15 ppm for distillate and 3000 ppm (0.3%S) for aviation and residual fuels. EPA approved the latest revisions of these rules into Connecticut's SIP on May 25, 2016, 74 and Connecticut includes both in its long-term strategy for the second planning period. 75 Connecticut's SIP-approved ultra-low sulfur fuel oil rule is consistent with Ask 3's sulfur content standards for the three types of fuel oils (distillate oil, #4 residual oil, #6 residual oil). EPA therefore agrees that Connecticut satisfied Ask 3.

Connecticut concluded that no additional updates were needed to meet Ask 4, which requests that MANEVU states pursue updating permits, enforceable agreements, and/or rules to lock-in lower emission rates for SO 2 , NO X and PM at EGUs and other sources larger than 250 MMBtu per hour that have switched operations to lower emitting fuels. As noted above, Connecticut has asserted that EGUs and large sources are already subject to Title V permitting requirements under RCSA section 22a-174-33 and that permits for these sources are renewed every five years and specify allowable operating scenarios, which includes type of fuels fired. Any change in fuel type that is not allowed by permit would trigger requirements for a new or modified permit under RCSA sections 22a-174-3a and -33, which are in the SIP. While requirements for lower emitting fuels contained in state fuel sulfur regulations at RCSA sections 22a-174-19a may be a means to achieve SO 2 reductions at sources covered by this Ask that have switched to a lower emitting fuel oil, it is not clear from the discussion in Connecticut's submittal what actions the State has “pursued” under this Ask to “lock-in lower emission rates” of SO 2 , NO X and PM at other sources covered by the Ask ( i.e., sources that have switched to other lower emitting fuel types). The submittal does not provide specific examples of sources previously authorized to burn more than one fuel type that have been “locked-in” to the lower-emitting fuel under this Ask. Satisfaction of Ask 4 is not necessarily a required element of a Regional Haze SIP, however. In addition, as Connecticut notes, any sources that wish to make a future switch to higher emitting fuels not currently authorized by permit are required to revise their permits to reflect the change, and state rules favor lower-emitting fuels and make any permit revision subject to additional analyses, including NSR.

Ask 5 addresses NO X emissions from peaking combustion turbines that have the potential to operate on high electric demand days. The Ask requests states to “strive” for NO X emission standards of no greater than 25 ppm for natural gas and 42 ppm for fuel oil but at a minimum, meet NO X emissions standards of no greater than 42 ppm for natural gas and 96 ppm for fuel oil.

As discussed above, Connecticut identified two recently approved regulations in the SIP that address NO X emissions from electric generating units and other stationary sources. RCSA section 22a-174-22e prescribes averaging times and emission limits for units at major sources of NO X . As of June 1, 2023, the state regulations set limits of 25 ppm for natural gas and 42 ppm for fuel oil at combined cycle turbines and 40 ppm for natural gas and 50 ppm for fuel oil at simple cycle turbines. The combined cycle limits match the “strive for” limits in the Ask. And while the simple cycle limits do not, they are more stringent than the “minimum” limits in the Ask. 76 In addition, RCSA section 22a-174-22f applies to combustion turbines at facilities that are not major sources of NO X and provides that combustion turbines that meet the generating criterion of the Ask ( i.e., capable of generating 15 MW or more) are also subject to the limits in RCSA section 22a-174-22e. See RCSA section 22a-174-22f(a)(1), (e)(4). Connecticut includes both regulations in its long-term strategy for the second planning period, 77 and both are in the SIP. EPA agrees that Connecticut reasonably demonstrated that it meets Ask 5.

Finally, regarding Ask 6, Connecticut pointed to various state regulations, State Executive Orders, participation in offshore wind projects, and membership in RGGI as policy efforts to increase energy efficiency and reduce reliance on fossil fuels for energy. Additionally, as discussed in the previous section, Connecticut reported energy savings efforts through 2018 have resulted in avoidance of the equivalent of one 130 MW power plant. The EPA agrees that Connecticut has satisfied Ask 6's request to consider and report in its SIP measures or programs related to energy efficiency, cogeneration, and other clean distributed generation technologies.

In sum, the EPA is proposing to find—based on Connecticut's participation in the MANEVU planning process, how it has addressed the Asks, and the EPA's assessment of Connecticut's emissions and point sources—that Connecticut has complied with the requirements of § 51.308(f)(2)(i). Specifically, Connecticut's application of MANEVU Ask 3 engages with the requirement that states evaluate and determine the emission reduction measures necessary to make reasonable progress by considering the four statutory factors.

The EPA is proposing to find the state's approach meets the statutory and regulatory requirements for several reasons. Connecticut reasonably evaluated and explained its decision to focus on SO 2 and NO X to address visibility impairment within the MANEVU region. Connecticut adequately supported that decision through reasonable reliance on the MANEVU technical analyses cited in its submission. In addition, as the EPA discusses in more detail in section IV.I. below, Connecticut adequately responded to comments to consider sources identified by the FLMs through the consultation process. The Agency notes that MANE-VU concluded that sulfates from SO 2 emissions were still the primary driver of visibility impairment in the second implementation period and that MANEVU conducted a four-factor analysis to support Ask 3, which requests that states pursue ultra-low sulfur fuel oil standards to address SO 2 emissions. Connecticut's SIP-approved sulfur in fuel rule sets stringent limits for sulfur content and SO 2 emissions for fuels. Additionally, Connecticut's SIP submittal identifies a long-term strategy that includes five state regulations previously approved into its SIP. The provisions at RCSA 22a-174-19a control SO 2 emissions by limiting the sulfur content of home heating oil to 15 ppm and the sulfur content of off-road diesel to 3000 ppm (0.3%S). RCSA 22a-174-19b further controls SO 2 emissions by limiting sulfur content of fuel oil sold in Connecticut for use in stationary sources to 15 ppm for distillate and 3000 ppm (0.3%S) for aviation and residual fuels. EPA approved the latest revisions of these rules into Connecticut's SIP on May 25, 2016. 78 Connecticut's regulations at RCSA 22a-174-22e and RCSA 22a-174-22f prescribe averaging times and set emission limits for sources of NO X at 25 ppm for natural gas and 42 ppm for fuel oil at combined cycle turbines and at 40 ppm for natural gas and 50 ppm for fuel oil at simple cycle turbines. EPA most recently approved these regulations into Connecticut's SIP on July 14, 2021, and July 31, 2017, respectively. 79 Further, RCSA 22a-174-38, most recently approved into Connecticut's SIP on July 31, 2017, 80 regulates NO X emissions from municipal waste combustors.

The EPA also notes the relatively low impact Connecticut's emissions have on the visibility impairment in nearby Class 1 areas. While, as discussed earlier, we do not necessarily agree with the level of the State's chosen 2% contribution threshold, it appears that emissions from Connecticut have relatively small contributions to Class I areas. 81 Further, Connecticut is in the Ozone Transport Region and is currently designated nonattainment statewide for both the 2008 and 2015 ozone standards. As a result, Connecticut already imposes stringent controls on its sources, including through statewide Reasonably Available Control Technology (RACT) requirements, to limit emissions of the ozone precursors NO X and VOCs. In addition, Connecticut must continue to control emissions of these precursors to attain, and then maintain, the ozone standards. As NO X and VOCs are also contributors to visibility impairment, these requirements have had the additional effect of controlling haze-forming emissions from sources throughout the State and are generally reflected in the MANEVU contribution screening results. Based on the MANEVU contribution screening analysis, Connecticut's highest percent mass-weighted sulfate and nitrate contribution to any Class I area is estimated to be 1.4% at Moosehorn Wilderness and Roosevelt Campobello International Park, and 1.3% and 1.2% to Acadia National Park and the Lye Brook Wilderness Area, respectively. 82 Slightly lower percent contributions are estimated from Connecticut's emissions to the other Class I areas in the MANEVU states: 1.0% to the Brigantine Wilderness Area and 0.7% to the two New Hampshire Wilderness Areas. 83 As discussed earlier, Connecticut's submittal includes and adopts a four-factor analysis conducted by the MANEVU states to support low-sulfur fuel restrictions that Connecticut has included in its long-term strategy. EPA believes it was reasonable for Connecticut not to conduct additional four-factor analyses in this case because haze-forming emissions from the State are already limited by EPA-approved emissions limits in the SIP (as a result of other CAA requirements), there are no other large visibility impairing point sources of SO 2 or NO X in the State, and the State's overall small contributions to visibility impairment in nearby Class I areas.

For the above reasons, the EPA proposes to find that Connecticut's SIP submittal satisfies the requirements that a State submit a long-term strategy that addresses regional haze visibility impairment for each mandatory Class I Federal area that may be affected by emissions from the State and that the long-term strategy include the emission reduction measures that are necessary to make reasonable progress determined by considering the four factors.

The consultation requirements of § 51.308(f)(2)(ii) provide that states must consult with other states that are reasonably anticipated to contribute to visibility impairment in a Class I area to develop coordinated emission management strategies containing the emission reductions measures that are necessary to make reasonable progress. Section 51.308(f)(2)(ii)(A) and (B) require states to consider the emission reduction measures identified by other states as necessary for reasonable progress and to include agreed upon measures in their SIPs, respectively. Section 51.308(f)(2)(ii)(C) speaks to what happens if states cannot agree on what measures are necessary to make reasonable progress.

Connecticut participated in and provided documentation of the MANEVU intra- and inter-RPO consultation processes, which included consulting with both MANEVU and non-MANEVU states about emissions from Connecticut reasonably anticipated to contribute to visibility impairment in Class I areas within the MANEVU area and in adjacent areas. The consultations addressed developing coordinated emission management strategies containing the emission reductions necessary to make reasonable progress at the Class I areas impacted by emissions from States within MANEVU. Connecticut addressed the MANEVU Asks by providing information on the enforceable measures it has in place that satisfy each Ask. 84 While Connecticut did not receive any requests from non-MANEVU states to consider additional measures to address visibility impairment in Class I areas outside MANEVU, MANEVU documented disagreements that occurred during consultation. For instance, MANEVU noted in its Consultation Report that upwind states expressed concern regarding the analyses the RPO utilized for the selection of states for the consultation. MANEVU agreed that these tools, as all models, have their limitations, but nonetheless deemed them appropriate. Additionally, there were several comments regarding the choice of the 2011 modeling base year. MANEVU agreed that the choice of base year is critical to the outcome of the study. MANEVU acknowledged that there were newer versions of the emission inventories and the need to use the best available inventory for each analysis. MANEVU, however, concluded that the selected inventories were appropriate for the analysis. Additionally, upwind states noted that they would not be able to address the MANEVU Asks until they finalize their SIPs. MANEVU believed the assumption of the implementation of the Asks from upwind states in its 2028 control case modeling was reasonable, and Connecticut included both the 2028 base case and control case modeling results in its SIP, representing visibility conditions at the Class 1 areas in the MANU-VU States assuming upwind states do not and do implement the Asks, respectively.

In sum, Connecticut participated in the MANEVU intra- and inter-RPO consultation and included in its SIP submittal the measures identified and agreed to during those consultations, thereby satisfying § 51.308(f)(2)(ii)(A) and (B). Connecticut satisfied § 51.308(f)(2)(ii)(C) by participating in MANEVU's consultation process, which documented the disagreements between the upwind states and MANEVU and explained MANEVU's reasoning on each of the disputed issues. Based on the entirety of MANEVU's intra- and inter-RPO consultation and MANEVU's and Connecticut's responses to comments on the SIP submission and various technical analyses therein, we propose to determine that Connecticut has satisfied the consultation requirements of § 51.308(f)(2)(ii).

The documentation requirement of § 51.308(f)(2)(iii) provides that states may meet their obligations to document the technical bases on which they are relying to determine the emission reductions measures that are necessary to make reasonable progress through an RPO, as long as the process has been “approved by all State participants.” As explained above, Connecticut chose to rely on MANEVU's technical information, modeling, and analysis to support development of its long-term strategy. The MANEVU technical analyses on which Connecticut relied are listed in the state's SIP submission and include source contribution assessments, information on each of the four factors and visibility modeling information for certain EGUs, and evaluations of emission reduction strategies for specific source categories. Connecticut also provided additional information to further demonstrate the technical bases and emission information it relied on to determine the emission reductions measures that are necessary to make reasonable progress. Based on the documentation provided by the state, we propose to find Connecticut satisfies this requirement of § 51.308(f)(2)(iii).

Section 51.308(f)(2)(iii) also requires that the emissions information considered to determine the measures that are necessary to make reasonable progress include information on emissions for the most recent year for which the state has submitted triennial emissions data to the EPA (or a more recent year), with a 12-month exemption period for newly submitted data. Connecticut's SIP submission included 2017 NEI emission data for NO X , SO 2 , PM, VOCs and NH 3 and 2017 Air Markets Program Data (AMPD) emissions for NO X and SO 2 . Based on Connecticut's consideration and analysis of the 2017 and 2019 emission data in its SIP submittal, the EPA proposes to find that Connecticut has satisfied the emissions information requirement in § 51.308(f)(2)(iii).

We also propose to find that Connecticut reasonably considered the five additional factors in § 51.308(f)(2)(iv) in developing its long-term strategy. Pursuant to § 51.308(f)(2)(iv)(A), Connecticut noted that existing and ongoing state and federal emission control programs that contribute to emission reductions through 2028 would impact emissions of visibility impairing pollutants from point and nonpoint sources in the second implementation period. Connecticut included in its SIP a comprehensive lists of control measures and other requirements that will continue to reduce emissions of visibility impairing pollutants, identifying the source category and corresponding Connecticut regulatory provisions. These measures include SIP approved revisions to RCSA section 22a-174-38 (82 FR 35454) to obtain NO X emission reductions from municipal waste combustors; implementation of RCSA sections 22a-174-22e (86 FR 37053) and 22a-174-22f (82 FR 35454) to obtain NO X emissions from major and minor sources of NO X ; and implementation of the last phase of RCSA section 22a-174-19b (81 FR 33134) to reduce sulfur oxide emissions from fuel burning sources.

Connecticut's consideration of measures to mitigate the impacts of construction activities as required by § 51.308(f)(2)(iv)(B) includes, in section 8.2 of its SIP submission, measures that Connecticut has implemented to mitigate the impacts from such activities. Connecticut has implemented standards that reduce fugitive dust emissions from construction, rules to address exhaust emissions including rules to limit the idling of vehicles and equipment, rules to reduce allowable smoke from on-road diesel engines, and general conformity rules.

Pursuant to § 51.308(f)(2)(iv)(C), source retirements and replacement schedules are addressed in section 8.3 of Connecticut's submission. Source retirements and replacements were considered in developing the 2028 emission projections, with on the books/on the way retirements and replacements included in the 2028 projections. The EGU point sources included in the inventories used in the MANEVU contribution assessment and that were subsequently retired are described in section 8.3 of the Connecticut submission. Connecticut calculated a net reduction of approximately 8,990 tons per year (tpy) of allowable NO X emissions and 17,350 tpy of allowable SO 2 emissions between the 2011 base year and the 2028 projected year based on EGU retirements (including retirement of the last coal-fired unit in the state) and replacement during that time with lower emitting units.

In considering smoke management as required in 40 CFR 51.308(f)(2)(iv)(D), Connecticut explained, in section 8.4 of its submission, that it addresses smoke management through a program under state law at CGS section 22a-174(f) that authorizes open burning (including prescribed burns for agriculture and wildland vegetation management purposes) through permits issued by municipal officials but limits it on poor air quality days, thereby reducing the impacts of prescribed burns on visibility. EPA approved this program into Connecticut's SIP on September 1, 2016. 81 FR 60274. Connecticut considers these efforts to be sufficient to protect visibility in Class I areas, including from agriculture- and forestry-related smoke. The EPA agrees that Connecticut adequately considered smoke management practices as part of its submittal as required by § 51.308(f)(2)(iv)(D).

Connecticut considered the anticipated net effect of projected changes in emissions as required by § 51.308(f)(2)(iv)(E) by discussing, in section 8.1 of its submission, various programs and state regulations that control emissions from the State's point, area, and mobile sources. Connecticut, through its nonattainment status for the 2008 and 2015 ozone National Ambient Air Quality Standards, is required to implement programs to reduce vehicle miles traveled (VMTs), which will reduce emissions in the mobile source sector. This sector also contributes to regional haze, so any reductions would have the added benefit of helping to improve visibility. Additionally, section 6 of the Connecticut submittal contains emissions projections for 2028, modeled in collaboration with MANEVU. These projected emissions incorporate the impact of strategies that are on-the-books, anticipated growth in the respective sector, and anticipated unit closures and the MANEVU “Ask.” The 2028 inventory projections demonstrate an overall reduction in emissions between the 2011 base year and 2028 modeled year thus, satisfying (f)(2)(iv)(e).

Because Connecticut has reasonably considered each of the five additional factors, the EPA proposes to find that Connecticut has satisfied the requirements of 40 CFR 51.308(f)(2)(iv).

Section 51.308(f)(3) contains the requirements pertaining to RPGs for each Class I area. Because Connecticut does not host a Class I area, it is not subject to either § 51.308(f)(3)(i) or 51.308(f)(3)(ii)(A). Section 51.308(f)(3)(ii)(B) requires that, if a state contains sources that are reasonably anticipated to contribute to visibility impairment in a Class I area in another state and the RPG for the most impaired days in that Class I area is above the URP glidepath, the upwind state must provide the same demonstration.

None of the Class I areas in or adjacent to the MANEVU region have RPGs above their respective URP glidepath. Table 2-1 of Connecticut's SIP submittal summarizes baseline visibility conditions ( i.e., visibility conditions during 2000-2004) for the most impaired and clearest days at each area as well as information on natural visibility conditions. Table 2-3 of the submittal shows the values on the URP glidepaths for 2028. Figures 7-1 and 7-2 summarize the 2028 RPG for the most impaired days for each area, as well as the modeled 2028 base case (representing visibility conditions in 2028 with existing controls), respectively. These visibility conditions, as well as the 2028 reasonable progress goals for the clearest days, are also included. The 2028 RPGs for each Class I area are well below their respective URP glidepaths. Therefore, § 51.308(f)(3)(ii)(B) is not applicable to Connecticut.

Section 51.308(f)(6) specifies that each comprehensive revision of a state's regional haze SIP must contain or provide for certain elements, including monitoring strategies, emissions inventories, and any reporting, recordkeeping and other measures needed to assess and report on visibility. Since Connecticut does not contain any Class I areas, it is not required to submit the monitoring strategy referenced in § 51.308(f)(6), nor are the requirements in § 51.308(f)(6)(i), (ii), and (iv) applicable.

40 CFR 51.308(f)(6)(iii), however, applies to states with no Class I areas (such as Connecticut) and requires them to include in their Regional Haze SIPs procedures by which monitoring data and other information are used in determining the contribution of emissions from within the state to visibility impairment at Class I areas in other states. Monitoring in Connecticut that contributes data for assessing visibility is described in section 2.1 of the Connecticut SIP submission. 85 Visibility data analysis procedures are described in the MANEVU visibility data report. Other procedures and data used for determining Connecticut contribution to visibility impairment are described in section 4 of the Connecticut SIP and the MANEVU documents referenced. 86 An IMPROVE monitor at the Mohawk Mountain site in Connecticut provides data to assess current visibility, track changes in visibility, and help determine the causes of visibility impairment in Class I areas in the region.

Section 51.308(f)(6)(v) requires SIPs to provide for a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment, including emissions for the most recent year for which data are available and estimates of future projected emissions. It also requires a commitment to update the inventory periodically. Connecticut provides for emissions inventories and estimates for future projected emissions by participating in the MANEVU RPO and complying with EPA's Air Emissions Reporting Rule (AERR). In 40 CFR part 51, subpart A, the AERR requires states to submit updated emissions inventories for criteria pollutants to EPA's Emissions Inventory System (EIS) every three years. The emission inventory data are used to develop the NEI, which provides for, among other things, a triennial state-wide inventory of pollutants that are reasonably anticipated to cause or contribute to visibility impairment.

Section 3 of Connecticut's submission includes tables of NEI data. The source categories of the emissions inventories included are: (1) Point sources, (2) nonpoint sources, (3) non-road mobile sources, and (4) on-road mobile sources. The point source category is further divided into AMPD point sources and non-AMPD point sources. Connecticut included NEI emissions inventories for the following years: 2002 (one of the regional haze program baseline years), 2008, 2011, 2014, and 2017; and for the following pollutants: SO 2 , NO X , PM 10 , PM 2.5 , VOCs, and NH 3 .

Section 51.308(f)(6)(v) also requires states to include estimates of future projected emissions and include a commitment to update the inventory periodically. Connecticut relied on the MANEVU 2028 emissions projections for MANEVU states. MANEVU completed two 2028 projected emissions modeling cases—a 2028 base case that considers only on-the-books controls and a 2028 control case that considers implementation of the MANEVU Asks. 87

The EPA proposes to find that Connecticut has met the requirements of 40 CFR 51.308(f)(6) as described above, including through its continued participation in the MANEVU RPO and its on-going compliance with the AERR, and that no further elements are necessary at this time for Connecticut to assess and report on visibility pursuant to 40 CFR 51.308(f)(6)(vi). Connecticut's SIP submittal also includes a commitment to update the statewide emissions inventory periodically.

Section 51.308(f)(5) requires that periodic comprehensive revisions of states' Regional Haze plans also address the progress report requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these requirements is to evaluate progress towards the applicable RPGs for any Class I area within the state and each Class I area outside the state that may be affected by emissions from within that state. Sections 51.308(g)(1) and (2) apply to all states and require a description of the status of implementation of all measures included in a state's first implementation period regional haze plan and a summary of the emission reductions achieved through implementation of those measures. Section 51.308(g)(3) applies only to states with Class I areas within their borders and requires such states to assess current visibility conditions, changes in visibility relative to baseline (2000-2004) visibility conditions, and changes in visibility conditions relative to the period addressed in the first implementation period progress report. Section 51.308(g)(4) applies to all states and requires an analysis tracking changes in emissions of pollutants contributing to visibility impairment from all sources and sectors since the period addressed by the first implementation period progress report. This provision further specifies the year or years through which the analysis must extend depending on the type of source and the platform through which its emission information is reported. Finally, § 51.308(g)(5), which also applies to all states, requires an assessment of any significant changes in anthropogenic emissions within or outside the state that have occurred since the period addressed by the first implementation period progress report, including whether such changes were anticipated and whether they have limited or impeded expected progress towards reducing emissions and improving visibility.

Connecticut's submission describes the status of measures of the long-term strategy from the first implementation period. 88 As a member of MANEVU, Connecticut considered the MANEVU Asks and adopted corresponding measures into its long-term strategy for the first implementation period. The MANEVU Asks were: (1) Timely implementation of Best Available Retrofit Technology (BART) requirements; (2) EGU controls including Controls at 167 Key Sources that most affect MANEVU Class I areas; (3) Low sulfur fuel oil strategy; and (4) Continued evaluation of other control measures. Connecticut met all the identified reasonable measures requested during the first implementation period. During the first planning period for regional haze, programs that were put in place focused on reducing SO 2 emissions. The reductions achieved led to vast improvements in visibility at the MANEVU Federal Class I Areas due to reduced sulfates formed from SO 2 emissions. Connecticut describes the control measures that help control the emissions of VOCs, NO X , PM and SO 2 from a wide range of sources in the SIP submission and identifies BART and Alternative to BART requirements in section 5.5. The submission also includes periodic emission data that demonstrate a decrease in VOCs, NO X , PM and SO 2 emissions throughout the state. 89

The EPA proposes to find that Connecticut has met the requirements of 40 CFR 51.308(g)(1) and (2) because its SIP submission describes the measures included in the long-term strategy from the first implementation period, as well as the status of their implementation and the emission reductions achieved through such implementation.

Pursuant to § 51.308(g)(4), in section 3 of its submittal, Connecticut provided a summary of emissions of NO X , SO 2 , PM 10 , PM 2.5 , VOCs, and NH 3 from all sources and activities, including from point, nonpoint, non-road mobile, and on-road mobile sources, for the time period from 2002 to 2017. With respect to sources that report directly to the EPA, Connecticut also included AMPD state summary data for SO 2 and NO X emissions for 2018 and 2019.

The reductions achieved by Connecticut emission control measures are seen in the emissions inventory. Based on Connecticut's SIP submission, NO X emissions have steadily declined in Connecticut from 2002 through 2017, especially in the point, nonroad and onroad mobile sectors. NO X emissions are expected to continue to decrease as fleet turnover occurs and the older more polluting vehicles and equipment are replaced by newer, cleaner ones. Emissions of SO 2 have shown a decline of 93% in Connecticut over the period 2002 to 2017. Connecticut attributes the reductions in point emissions to fuel switching from coal and oil to natural gas, federal and state low sulfur fuel regulations, NO X budget and successor programs for power plants and the retirement of older units as well as improved controls on new units. Since some components of the MANEVU low sulfur fuel strategy were not implemented until 2018, and as MANEVU states continue to adopt rules to implement the strategy, additional SO 2 emissions reductions are expected to continue into the future.

Table 3-11 of Connecticut's submission shows VOC emissions from all NEI data categories for the period 2002 to 2017 in Connecticut. VOC emissions have shown a steady decline in Connecticut over this period. VOC decreases were achieved in all sectors due to Federal new engine standards for onroad and nonroad vehicles and equipment, the National and State low emission vehicle programs, SIP-approved area source rules such as consumer products, portable fuel containers, paints, autobody refinishing, asphalt paving applications, and solvent cleaning operations, and VOC storage tank rules.

In Connecticut's submission, table 3-14 shows a summary of PM 10 emissions from all NEI data categories point, nonpoint, non-road, and onroad for the period from 2002 to 2017 in Connecticut. In Connecticut, PM 10 emissions steadily decreased in the point, nonpoint, and nonroad categories for the period from 2002 to 2017. The apparent increase in the onroad emissions is due to changes in emission inventory calculation methodologies, which resulted in higher particulate matter estimates. The variation in emissions in the nonpoint category is due to changes in calculation methodologies for residential wood burning and fugitive dust categories, which have varied significantly.

Table 3-17 of Connecticut's submission shows a summary of PM 2.5 emissions from all NEI data categories for the period from 2002 to 2017 in Connecticut. PM 2.5 emissions steadily decreased in the nonroad category for the period from 2002 to 2014. Most reductions came from the nonpoint category, which experienced periodic variation in emissions due to changes in calculation methodologies for residential wood burning and fugitive dust categories. The decrease in nonroad PM 2.5 emissions can likely be attributed to new Federal engine standards for nonroad vehicles and equipment. 90 Similarly, an overall decrease in onroad emissions can be attributed to Federal and State vehicle regulations and standards, which impose increasingly tighter emissions limits with incremental model year vehicles. 91 The increase in emissions in the onroad category from 2002 to 2008 is due to changes in emission inventory calculation methodologies and a model change, as previously explained, which resulted in higher fine particulate matter estimates.

Table 3-20 of Connecticut's submission shows ammonia (NH 3 ) emissions from all NEI data categories for the period 2002 to 2017 in Connecticut. Though ammonia decreases were achieved in the onroad sector due to Federal new engine standards for vehicles and equipment, increases and decreases from 2002 to 2017 in the other categories are due to reporting, grouping and methodology changes. There was little change to nonroad ammonia emissions. Overall, ammonia emissions have decreased from 2008 to 2017.

The EPA is proposing to find that Connecticut has satisfied the requirements of § 51.308(g)(4) by providing emissions information for NO X , SO 2 , PM 10 , PM 2.5 , VOCs, and NH 3 broken down by type of source.

Connecticut uses the emissions trend data in the SIP submission to support the assessment that anthropogenic haze-causing pollutant emissions in Connecticut have decreased during the reporting period and that changes in emissions have not limited or impeded progress in reducing pollutant emissions and improving visibility. The data Connecticut presents for NO X , SO 2 , VOCs, PM 10 , PM 2.5 , and NH 3 show consistently declining emissions of those pollutants. The EPA is proposing to find that Connecticut has met the requirements of § 51.308(g)(5).

Section 169A(d) of the CAA requires states to consult with FLMs before holding the public hearing on a proposed regional haze SIP, and to include a summary of the FLMs' conclusions and recommendations in the notice to the public. In addition, § 51.308(i)(2)'s FLM consultation provision requires a state to provide FLMs with an opportunity for consultation that is early enough in the state's policy analyses of its emission reduction obligation so that information and recommendations provided by the FLMs can meaningfully inform the state's decisions on its long-term strategy. If the consultation has taken place at least 120 days before a public hearing or public comment period, the opportunity for consultation will be deemed early enough, but the opportunity for consultation must be provided at least sixty days before a public hearing or public comment period at the state level. Section 51.308(i)(2) also requires that the consultation include the opportunity for the FLMs to discuss their assessment of visibility impairment in any Class I area and their recommendations on the development and implementation of strategies to address visibility impairment. Section 51.308(i)(3) requires states, in developing their implementation plans, to include a description of how they addressed FLMs' comments.

The states in the MANEVU RPO conducted FLM consultation early in the planning process concurrent with the state-to-state consultation that formed the basis of the RPO's decision making process. As part of the consultation, the FLMs were given the opportunity to review and comment on the technical documents developed by MANE-VU. The FLMs were invited to attend the intra- and inter-RPO consultations calls among states and at least one FLM representative was documented to have attended seven intra-RPO meetings and all inter-RPO meetings. Connecticut participated in these consultation meetings and calls. 92

As part of this early engagement with the FLMs, on April 12, 2018, the NPS sent letters to the MANEVU states requesting that they consider specific individual sources in their long-term strategies. 93 NPS used an analysis of emissions divided by distance (Q/d) to estimate the impact of MANEVU facilities. To select the facilities, NPS first summed 2014 NEI NO X , PM 10 , SO 2 , and SO 4 emissions and divided by the distance to a specified NPS mandatory Class I Federal area. NPS summed the Q/d values across all MANEVU states relative to Acadia, Mammoth Cave, and Shenandoah National Parks, ranked the Q/d values relative to each Class I area, created a running total, and identified those facilities contributing to 80% of the total impact at each NPS Class I area. NPS applied a similar process to facilities in Maine but relative to just Acadia National Park. NPS merged the resulting lists of facilities and sorted them by their states. NPS suggested that a state consider those facilities comprising 80% of the Q/d total, not to exceed the 25 top ranked facilities. The NPS identified nine facilities in Connecticut in this letter. 94 Connecticut addressed the NPS initial letter in section 5.4 of its proposed SIP. Connecticut explained that five of the facilities are municipal waste combustors that became subject to more stringent NO X and ammonia limits in 2017 through the implementation of SIP-approved RCSA 22a-174-38 (82 FR 35454) and whose emissions have, as a result, been reduced from the levels the NPS noted in its initial letter. 95 In addition, units at four of the other facilities became subject to more stringent NO X limits in 2023 through the implementation of RCSA 22a-174-22e, which is also in Connecticut's SIP (86 FR 37053). 96 Further, the coal-burning unit at one of these latter facilities retired in 2021 (that is, Bridgeport Harbor Unit 3), 97 and, as noted earlier, DEEP revoked the permit. Finally, DEEP explained that the Cromwell compressor station has also reduced its emissions from those noted by the NPS for this facility. 98 In 2019, the facility replaced several engines with more efficient and lower-emitting turbines that are subject to the NO X emission limits in RCSA 22a-174-22e that meet the “strive for” limits in Ask 5 ( i.e., 25 ppmvd). 99 100 This facility is located in a severe nonattainment area and was issued a New Source Review permit for the new turbines.

On January 15, 2020, Connecticut sent the proposed SIP, including the above explanations of how it addressed the FLM comments, to representatives of the NPS, the U.S. Forest Service (USFS), and the U.S. Fish and Wildlife Service for a 60-day review and comment period pursuant to 40 CFR 51.308(i)(2) before making it available for public comment. Connecticut received comments from the NPS and the USFS. Connecticut included responses to the comments in appendix A of its submission to EPA, in accordance with § 51.308(i)(3). In its comments, the NPS requested that the State consider 4 municipal waste combustors (MWCs) for four-factor analysis. In response to NPS's request, Connecticut again noted that MWCs in the State are already subject to SIP approved 22a-174-38. Connecticut also noted that the state is currently in nonattainment for both the 2008 and 2015 ozone standards and is required to impose RACT and obtain emission reductions of ozone precursors of not less than 3% per year in order to attain the ozone standards. Related to the RACT requirement, CT DEEP explained that it actively participates in an Ozone Transport Commission (OTC) workgroup to evaluate and compare emissions from MWCs and pursue more stringent regulation of their NO X emissions. CT DEEP explained that the State has already committed in its RACT SIP to act on the information compiled by this workgroup and adhere to the resultant OTC recommendations for MWC emission limits. 101 CT DEEP also responded to comments from the USFS regarding three EGUs. 102

On December 3, 2020, CT DEEP issued a notice of public hearing and comment and the availability of the draft Regional Haze SIP revision for 2018-2028 on CT DEEP's Public Notices and Hearings web page. The document announced the opportunity to submit written comments until January 29, 2021, as well as a public hearing proposed for January 29, 2021, provided such hearing was requested. No such request was received, and the hearing was cancelled. The Connecticut SIP submittal contains the public comments received and CT DEEP's responses, including responses to additional comments received from the NPS during the public comment period.

For the reasons stated above, the EPA proposes to find that Connecticut has satisfied the requirements under 40 CFR 51.308(i) to consult with the FLMs on its regional haze SIP for the second implementation period.

Connecticut's January 5, 2022, SIP submission includes a commitment to revise and submit a regional haze SIP in 2028, and every ten years thereafter. The state's commitment includes submitting periodic progress reports in accordance with § 51.308(f) and a commitment to evaluate progress towards the reasonable progress goal for each mandatory Class I Federal area located within the state and in each mandatory Class I Federal area located outside the state that may be affected by emissions from within the state in accordance with § 51.308(g).

The EPA is proposing to approve the “Connecticut Regional Haze State Implementation Plan Revision Second Planning Period (2018-2028)”, Final Submittal dated November 2021 and submitted to EPA on January 5, 2022, as satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f), (g), and (i).

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

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

• 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 CAA.

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

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and the EPA has established emission guidelines for such existing sources. CAA section 129 directs the EPA to establish standards of performance for new sources (NSPS) and emissions guidelines (EG) for existing  1 sources for each category of solid waste incinerator specified in CAA section 129. Under CAA section 129, NSPS and EG must contain numerical emissions limitations for particulate matter, opacity (as appropriate), sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans. While NSPS are directly applicable to new sources, EG for existing sources (designated facilities) are intended for states to use to develop a state plan to submit to the EPA. When designated facilities are located in a state, the state must then develop and submit a plan for the control of the designated pollutants.

State plan submittals and revisions under CAA section 111(d) must be consistent with the applicable EG and the requirements of 40 CFR part 60, subpart B, and part 62, subpart A. The regulations at 40 CFR part 60, subpart B, contain general provisions applicable to the adoption and submittal of state plans and plan revisions under CAA section 111(d). Additionally, 40 CFR part 62, subpart A, provides the procedural framework by which the EPA will approve or disapprove such plans and plan revisions submitted by a state. Once approved by the EPA, the state plan becomes federally enforceable. If a state does not submit an approvable state plan to the EPA, the EPA is responsible for developing, implementing, and enforcing a federal plan. However, 40 CFR 60.23(b) and 40 CFR 62.06 provide that if there are no designated facilities of the designated pollutant(s) in the state, the state may submit a letter of certification to that effect ( i.e., negative declaration) in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B that require the submittal of a CAA section 111(d)/129 plan.

On December 1, 2000, EPA promulgated the CISWI NSPS at 40 CFR part 60, subpart CCCC, and the CISWI EG at 40 CFR part 60, subpart DDDD (65 FR 75338). On March 21, 2011, after voluntarily remanding the 2000 CISWI NSPS and EG, the EPA promulgated revised CISWI NSPS and EG in a final rule (76 FR 15704). Correspondingly, on the same date, EPA promulgated a final rule under the Resource Conservation and Recovery Act (RCRA) to identify which non-hazardous secondary materials, when used as fuels or ingredients in combustion units, are “solid wastes” (76 FR 15456). 2 EPA subsequently promulgated amendments to both March 21, 2011 rules on February 7, 2013, to clarify several provisions in order to implement the non-hazardous secondary materials rule as EPA originally intended (78 FR 9112). Reconsideration of certain aspects of the final CISWI rule resulted in minor amendments (81 FR 40956, June 23, 2016). 3 On April 16, 2019, EPA finalized further amendments to the CISWI NSPS and EG in order to provide clarity and address implementation issues (84 FR 15846). 4

The CISWI NSPS and EG were significantly revised in the March 21, 2011, and February 7, 2013, rulemakings, and the subsequent final rulemakings on June 23, 2016, and April 16, 2019, contained minor amendments to the CISWI rules that did not make any changes to the applicability of the designated facilitates, including 40 CFR 60.2505, “Am I affected by this subpart?”. As provided by 40 CFR 60.2505, the designated facilities to which the CISWI EG apply are CISWI and air curtain incinerators (ACI)  5 that commenced construction on or before June 4, 2010, or for which modification or reconstruction was commenced on or before August 7, 2013, with limited exceptions as provided under 40 CFR 60.2555.

On June 29, 2005, the Oklahoma Department of Environmental Quality (ODEQ) submitted a CISWI state plan to address the 2000 CISWI EG requirements and fulfill obligations under CAA sections 111(d) and 129. Oklahoma's 2005 CISWI plan controlled emissions from sources subject to the 2000 CISWI EG, found at 40 CFR part 60, subpart DDDD, within the State of Oklahoma. Oklahoma's 2005 CISWI plan was approved by EPA on October 4, 2005 (70 FR 57764).

In order to address the most recent CISWI EG requirements and fulfill obligations under CAA sections 111(d) and 129, ODEQ submitted a state plan revision for the control of emissions from sources subject to the CISWI EG for the State of Oklahoma on November 16, 2020. The Oklahoma 2020 CISWI plan implements and enforces the applicable provisions under the CISWI EG at 40 CFR part 60, subpart DDDD, most recently amended on April 16, 2019, and additionally meets the relevant requirements of the CAA section 111(d) implementing regulations at 40 CFR part 60, subpart B. A copy of the Oklahoma submittal is included in the docket for this rulemaking.

Following the U.S. Supreme Court decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested approval under Section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”), to administer in certain areas of Indian country (as defined at 18 U.S.C. 1151) the State's environmental regulatory programs that were previously approved by the EPA for areas outside of Indian country. The State's request excluded certain areas of Indian country further described below. In addition, the State only sought approval to the extent that such approval is necessary for the State to administer a program in light of Oklahoma Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014). 6

On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to administer all the State's EPA-approved environmental regulatory programs, including Plans for Designated Facilities and Pollutants under sections 111(d) and 129, in the requested areas of Indian country. As requested by Oklahoma, the EPA's approval under SAFETEA does not include Indian country lands, including rights-of-way running through the same, that: (1) qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held in trust by the United States on behalf of an individual Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired that fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which such Tribe was a party, and (b) never allotted the land to a member or citizen of the Tribe (collectively “excluded Indian country lands”).

EPA's approval under SAFETEA expressly provided that to the extent EPA's prior approvals of Oklahoma's environmental programs excluded Indian country, any such exclusions are superseded for the geographic areas of Indian country covered by the EPA's approval of Oklahoma's SAFETEA request. 7 The approval also provided that future revisions or amendments to Oklahoma's approved environmental regulatory programs would extend to the covered areas of Indian country (without any further need for additional requests under SAFETEA). 8

As explained earlier in this action, the EPA is proposing to approve the Oklahoma CAA section 111(d)/129 CISWI state plan that was submitted by the State of Oklahoma on November 16, 2020. More specifically, we are proposing to approve Oklahoma's CISWI plan addressing CAA section 111(d)/129 requirements for CISWI under the CISWI EG codified at 40 CFR part 60, subpart DDDD. Consistent with the EPA's October 1, 2020, SAFETEA approval, if this approval is finalized as proposed, this Oklahoma CISWI plan will apply to all Indian country within Oklahoma, other than the excluded Indian country lands, as described earlier. The Oklahoma CISWI plan applies statewide, but only affects specific types of facilities, as discussed earlier in this notice. ODEQ has only identified one existing facility, located within the Muscogee Nation reservation, that is affected by the Oklahoma CISWI plan we are proposing to approve. Any newly constructed incinerators subject to the CISWI EG would be subject to the CISWI NSPS, not the CISWI plan implementing the CISWI EG requirements.

The EPA has evaluated the Oklahoma CISWI plan to determine whether the plan meets applicable requirements from the CISWI EG at 40 CFR part 60, subpart DDDD, and the CAA section 111(d) implementing regulations at 40 CFR part 60, subpart B.

Section 60.2515 of the CISWI EG addresses what must be included in state plan submittals. These requirements include:

(1) Inventory of affected CISWI, including those that have ceased operation but have not been dismantled.

(2) Inventory of emissions from affected CISWI in the State.

(3) Compliance schedules for each affected CISWI.

(4) Emission limitations, operator training and qualification requirements, a waste management plan, and operating limits for affected CISWIs that are at least as protective as the emission guidelines contained in this subpart.

(5) Performance testing, recordkeeping, and reporting requirements.

(6) Certification that the hearing on the state plan was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission.

(7) Provision for State progress reports to EPA.

(8) Identification of enforceable State mechanisms that the State selected for implementing the emission guidelines of this subpart.

(9) Demonstration of the state's legal authority to carry out the sections 111(d) and 129 in the state plan.

Section 60.2515 of the CISWI EG also requires the state plan to demonstrate that it is at least as protective as the CISWI EG if it deviates from the format and content of the EG in 40 CFR part 60, subpart DDDD. The state plan must also follow the requirements of 40 CFR part 60, subpart B.

The EPA's detailed rationale and discussion on the Oklahoma CISWI plan and how the plan meets these requirements can be found in the Technical Support Document (TSD), located in the docket for this rulemaking.

The EPA is proposing to approve the Oklahoma CISWI plan, submitted by ODEQ on November 16, 2020, and amend 40 CFR part 62 in accordance with the requirements under sections 111(d) and 129 of the CAA. The EPA is proposing to find that the Oklahoma CISWI plan is at least as protective as the Federal requirements provided under the CISWI EG, codified at 40 CFR part 60, subpart DDDD. Once approved by the EPA, the Oklahoma CISWI plan will become federally enforceable.

Information on Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) and how EPA defines environmental justice can be found in the section titled “Statutory and Executive Order Reviews” in this proposed rule. EPA is providing additional analysis of environmental justice associated with this action. The results of this analysis are being provided for informational and transparency purposes, not as a basis of our proposed action.

EPA conducted screening analyses using EJSCREEN, an environmental justice mapping and screening tool that provides EPA with a nationally consistent dataset and approach for combining various environmental and demographic indicators. 9 The EJSCREEN tool presents these indicators at a Census block group (CBG) level or a larger user-specified “buffer” area that covers multiple CBGs. 10 An individual CBG is a cluster of contiguous blocks within the same census tract and generally contains between 600 and 3,000 people. EJSCREEN is not a tool for performing in-depth risk analysis, but is instead a screening tool that provides an initial representation of indicators related to environmental justice and is subject to uncertainty in some underlying data ( e.g., some environmental indicators are based on monitoring data which are not uniformly available; others are based on self-reported data). 11 To help mitigate this uncertainty, we have summarized EJSCREEN data within larger “buffer” areas covering multiple block groups and representing the average resident within the buffer areas surrounding the sources. We present EJSCREEN environmental indicators to help screen for locations where residents may experience a higher overall pollution burden than would be expected for a block group with the same total population. These indicators of overall pollution burden include estimates of ambient particulate matter (PM 2.5 ) and ozone concentration, a score for traffic proximity and volume, percentage of pre-1960 housing units (lead paint indicator), and scores for proximity to Superfund sites, risk management plan (RMP) sites, and hazardous waste facilities. 12 EJSCREEN also provides information on demographic indicators, including percent low-income, communities of color, linguistic isolation, and education.

The EPA prepared EJSCREEN reports covering a buffer area of approximately 3-mile radius around the incinerator identified by ODEQ as subject to the CAA section 111(d)/129 CISWI plan. Table 1 presents a summary of results from the EPA's screening-level analysis for the areas surrounding the affected incinerator in Oklahoma compared to the U.S. as a whole. The full, detailed EJSCREEN report is provided in the docket for this rulemaking.

A discussion on how Oklahoma's CISWI plan meets Federal requirements, including CISWI EG requirements, is provided under the section titled “The EPA's Evaluation” in this proposed rule. CISWI EG requirements result in emission reductions for nine specified pollutants: particulate matter (PM), sulfur dioxide (SO 2 ), hydrogen chloride (HCl), nitrogen oxides (NO X ), carbon monoxide (CO), lead (Pb), cadmium (Cd), mercury (Hg), and dioxins/furans, and they additionally provide for opacity limits. Information on emissions controlled by the CISWI EG, its relationship to negative health impacts, and the estimated benefits from the CISWI EG, can be found at the Federal Register document titled “Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste” (78 FR 9112, February 7, 2013) and its associated Regulatory Impact Analysis. 13 We expect that this action will generally have positive environmental and health impacts on all populations, including people of color and low-income populations, in Oklahoma that are located near an existing incinerator subject to the CISWI EG. At a minimum, this action would not worsen any existing air quality and is expected to ensure the area is meeting requirements to attain air quality standards. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

In this action, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are proposing to incorporate by reference revisions to the Oklahoma regulations as described in the section titled “Proposed Action” in this proposed rule. The Oklahoma regulations at OAC 252:100-17, Part 9, Commercial and Industrial Solid Waste Incinerators, contains Oklahoma's CAA section 111(d)/129 plan provisions for sources subject to the Commercial and Industrial Solid Waste Incineration Units Emission Guidelines at 40 CFR part 60, subpart DDDD. We have made, and will continue to make, these documents generally available electronically through www.regulations.gov (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a CAA section 111(d)/129 submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60, subparts B and Cf; and 40 CFR part 62, subpart A. Thus, in reviewing CAA section 111(d)/129 state plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act and implementing regulations. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason:

This action is not a significant regulatory action as defined in Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023), and was therefore not subject to a requirement for Executive Order 12866 review.

This action does not impose an information collection burden under the PRA (44 U.S.C. 3501 et seq. ) because it does not contain any information collection activities.

This action is certified to not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This action will approve a state plan pursuant to CAA section 111(d)/129 and will therefore have no net regulatory burden for all directly regulated small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any State, local, or tribal governments or the private sector.

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 proposal to approve the Oklahoma CISWI plan will apply, if finalized as proposed, to certain areas of Indian country throughout Oklahoma as discussed in the preamble, and therefore has tribal implications as specified in E.O. 13175 (65 FR 67249, November 9, 2000). However, this action will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This action will not impose substantial direct compliance costs on federally recognized tribal governments because no actions will be required of tribal governments. This action will also not preempt tribal law as no Oklahoma tribe implements a regulatory program under the CAA, and thus does not have applicable or related tribal laws. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the EPA has offered consultation to tribal governments that may be affected by 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 definitions of “covered regulatory action” in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it approves a state program.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards. This action 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.

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA performed an environmental justice analysis, as described in the section titled “Environmental Justice Considerations” in this proposed rule. The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being taken here, this action is expected to have a neutral impact on the air quality of the affected area. In addition, there is no information in the record upon which this action is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

Throughout this document, “we,” “us,” and “our” refer to the EPA. This proposal addresses the following local rule: SCAQMD Rule 3001, “Title V Permits—Applicability.” In the Rules and Regulations section of this Federal Register , the EPA is approving the District's submissions and making administrative updates as a direct final rule without prior proposal because we view this as a noncontroversial action and anticipate no adverse comments. A detailed rationale for the action is set forth in the preamble to the direct final rule. If the EPA receives no adverse comments, the EPA contemplates no further action. If the EPA receives adverse comments, the EPA will withdraw the direct final rule and will address all public comments in a subsequent final rule based on this proposed rule. We do not plan to open a second comment period on this action, so anyone interested in commenting should do so at this time. Please note that if the EPA receives an adverse comment on an amendment, paragraph, or section of this proposed rule and if that provision may be severed from the remainder of the proposed rule, the EPA may adopt as final those provisions of the proposed rule that are not the subject of an adverse comment. For additional information, see the direct final rule of the same title that is located in the “Rules and Regulations” section of this Federal Register .

The CAA Amendments of 1990 include title V, which requires States to develop an operating permits program that meets the federal criteria codified in title 40 of the Code of Federal Regulations (CFR) part 70. The title V program requires certain sources of air pollution to obtain federal operating permits from their respective states. These federal operating permits improve enforcement and compliance by consolidating all applicable federal requirements into one federally enforceable document. Before a state can issue permits under 40 CFR part 70 (which are referred to as “title V permits”), the EPA must approve its programs under appendix A of 40 CFR part 70. States may submit revisions to their approved programs for EPA approval.

Title V of the CAA applies to “major stationary sources” as defined in title I, part D of the Act. 40 CFR 70.2 bases the definition of “major stationary source” on the nonattainment classification of the area where the source is located. Table 1 of this document shows the attainment/nonattainment/unclassifiable status for the applicable NAAQS within the District's jurisdictional boundary. As shown in Table 1, the SCAQMD's jurisdiction is classified as nonattainment for fine particulate matter with an aerodynamic diameter of less than or equal to 10 micrometers (PM 10 ), fine particulate matter with an aerodynamic diameter of less than or equal to 2.5 micrometers (PM 2.5 ), lead (Pb), and ozone. 1 The SCAQMD's jurisdiction is composed of several air basins that have different nonattainment classifications. The District is designated attainment/unclassifiable for nitrogen dioxide (NO 2 ), carbon monoxide (CO), and sulfur dioxide (SO 2 ). 40 CFR 81.305.

This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in CC Docket No. 80-286, FCC 24-71, adopted and released on July 1, 2024. The full text of this document is available at the following internet address: https://docs.fcc.gov/public/attachments/FCC-24-71A1.pdf. A notice of the renewal of the existing referrals to the Federal-State Joint Board on Separations relating to this document is published elsewhere in this issue of the Federal Register .

Paperwork Reduction Act. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198.

Providing Accountability Through Transparency Act. The Providing Accountability Through Transparency Act requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. Accordingly, the Commission will publish the required summary of this Further Notice on https://www.fcc.gov/proposed-rulemakings.

1. Today, the separations rules remain applicable to only a limited and declining number of incumbent LECs that continue to rely on costs to calculate rates or universal service support. Due to the breadth and complexity of these rules, as well as their narrow applicability, the Commission has repeatedly extended the freeze that was first adopted in 2001. The Commission expects that the benefits of its proposal to further extend the separations rules' freeze likely outweigh the costs of allowing it to end and seeks comment on various aspects of its proposal.

2. Jurisdictional Separations Process. The jurisdictional separations rules were designed to ensure that rate-of-return incumbent LECs apportion the costs of their regulated services between the interstate or intrastate jurisdictions in a manner that reflects the relative use of their networks to provide interstate or intrastate telecommunications services. Jurisdictional separations is the third step in a four-step regulatory cost-based rate-making process. First, a rate-of-return carrier records its costs and revenues in various accounts using the Uniform System of Accounts prescribed by the Commission's part 32 rules. Second, the carrier divides the costs in these accounts between regulated and nonregulated activities in accordance with the Commission's part 64 rules, a step that helps ensure that the costs of nonregulated activities will not be recovered through regulated interstate rates. Third, the carrier separates the regulated costs and revenues between the interstate and intrastate jurisdictions using the Commission's part 36 jurisdictional separations rules. Finally, the carrier apportions the interstate regulated costs among the interexchange services and the rate elements that form the cost basis for its exchange access tariffs. Carriers subject to rate-of-return regulation perform this apportionment in accordance with the Commission's part 69 rules.

3. To comply with these rules, rate-of-return incumbent LECs must perform annual cost studies that include jurisdictional separations. After separating non-regulated from regulated costs and revenues, the cost study directly assigns or allocates the regulated costs and revenues to various part 36 categories. Amounts in categories that are used exclusively for interstate or intrastate communications are directly assigned to the appropriate jurisdiction. Amounts in categories that support both interstate and intrastate services are divided between the jurisdictions using allocation factors developed in accordance with part 36 that reflect relative use or a fixed percentage.

4. Attempts at Separations Reform and Separations Freezes. In 1997, recognizing that “changes in the law, technology, and market structure of the telecommunications industry” necessitated a thorough reevaluation of the jurisdictional separations process, the Commission initiated a proceeding to comprehensively reform the separations rules. At the same time, pursuant to section 410(c) of the Communications Act of 1934, as amended (the Communications Act), the Commission referred the matter of jurisdictional separations reform to the Joint Board for a recommended decision.

5. In 2000, the Joint Board—comprised of both State and Federal members—issued a recommendation that the Commission freeze the part 36 category relationships and jurisdictional allocation factors pending resolution of comprehensive reform. In 2001, the Commission adopted an order concluding that a freeze would stabilize the separations process pending reform by minimizing any impact of cost shifts on separations results due to circumstances—such as the growth of internet usage, new technologies, and local competition—not contemplated by the rules. The Commission also determined that a freeze would simplify the separations process by eliminating the need for many separations studies until separations reform was implemented. Accordingly, the Commission froze all part 36 allocation factors and allowed rate-of-return carriers to voluntarily freeze their category relationships, enabling each carrier to determine whether such a freeze would be beneficial “based on its own circumstances and investment plans.” In 2009, the Commission made another referral, asking the Joint Board to consider comprehensive jurisdictional separations reform as well as “an interim adjustment of the current jurisdictional separations freeze.” In 2018, the Commission tasked the Joint Board with addressing two specific issues during the interim period pending comprehensive reform. These included exploring the possibility of amending separations rules to acknowledge that certain carriers are no longer bound by them, as well as updating existing recordkeeping requirements to align with the current applicability of separations rules. The Joint Board has not to date submitted a recommended decision on comprehensive separations reform or on any interim adjustments.

6. The Commission specified that the 2001 freeze would last five years or until the Commission completed comprehensive separations reform, whichever came first. The Commission also concluded that, prior to the expiration of the five-year period, the Commission would, in consultation with the Joint Board, determine whether the freeze period should be extended, explaining that “the determination of whether the freeze should be extended at the end of the five-year period shall be based upon whether, and to what extent, comprehensive reform of separations has been undertaken by that time.”

7. Since 2001, the Commission has extended the separations freeze eight times, for periods ranging from one year to six years, the most recent extension of which expires on December 31, 2024. In repeatedly extending the freeze, the Commission has explained that the freeze would stabilize and simplify the separations process while the Joint Board and the Commission continued to work on separations reform.

8. Declining Relevance of Jurisdictional Separations. The jurisdictional separations rules no longer apply to the majority of carriers currently providing telecommunications services. Currently, out of 1,079 rate-of-return carriers, only about 247 carriers that receive cost-based Universal Service Fund (USF) support make the full use of separations to set end-user common line, business data services (BDS), and Consumer Broadband-Only Loop service rates, as well as to determine the level of USF support. Approximately 374 Alternative-Connect America Cost Model and Alaska Plan carriers use separations only for setting BDS rates. The separations rules were never applicable to wireless carriers, and in 2008, the Commission granted price cap incumbent LECs forbearance from the separations rules, leaving rate-of-return incumbent LECs as the only remaining carriers required to comply with the separations rules. In addition, in 2018, the Commission offered rate-of-return carriers the option to receive fixed or model-based high-cost universal service support with the ability to elect incentive regulation for their business data services (BDS). Carriers electing both model-based support and incentive regulation for BDS no longer need to engage in separation of their costs for any Federal regulatory purpose, whether for universal service funding or rate-making. Currently, 232 A-CAM carriers have elected incentive regulation for BDS. Moreover, apart from a handful of carriers performing sample cost studies, the separations rules do not apply to rate-of-return carriers that are “average schedule companies.” At present, 226 companies participate in NECA's average schedule. These companies do not perform jurisdictional separations; they receive pool revenues, or settlements, from the National Exchange Carrier Association, Inc. for interstate telecommunications services based on a series of statistical formulas, approved by the Commission, that approximate the amounts received by a similar cost company. What is more, the Commission expects additional rate-of-return carriers will take advantage of the Commission's latest Enhanced A-CAM program for universal service support and will also select to be subject to incentive regulation for BDS—thus, the Commission expects the number of carriers that will be subject to the separations rules to decrease even further.

9. For carriers that remain subject to the separations rules, the separations process has increasingly limited application because of regulatory reforms by the Commission that remove the need to engage in the separations process. For example, as part of comprehensive reform and modernization of the universal service and intercarrier compensation systems, the Commission adopted rate caps for the switched access services of rate-of-return carriers (including a transition to bill-and-keep for certain rate elements), thereby eliminating the need to apply separations rules for calculating switched access rates. Further, rate-of-return carriers receiving high-cost universal service support based on the Commission's A-CAM programs but not electing incentive regulation for business data services no longer need to use jurisdictional separations to quantify the amount of high-cost support for the interstate portion of their common line services or to set interstate rates for these services.

10. The Commission proposes to extend the separations freeze for another six years and invites comment on this proposal. Several factors—recent changes to the composition of the Joint Board, the complex nature of the work required to develop comprehensive recommendations for separations reform, and the fact that the current freeze expires at the end of this calendar year—have combined to leave limited and insufficient time within which to develop and advance recommended decisions. Moreover, allowing the freeze to expire without further extension would force rate-of-return carriers to engage in unnecessary, costly and burdensome cost studies based on outdated rules and assumptions that bear little relationship to the marketplace today. Accordingly, after weighing the likely benefits of extending the current freeze against the likely costs of allowing it to expire, the Commission proposes to extend the separations freeze until December 31, 2030. The Commission seeks comment on this proposal as well as whether it should change any aspect of the separations freeze should the Commission extend the freeze as proposed.

11. Process Considerations. The proposal to extend the freeze through December 31, 2030, would allow the Joint Board to consider next steps in addressing separations reform. This Joint Board has quite recently seated several new members who are just beginning their opportunity to delve into the complicated issues they need to grapple with in considering reform measures. For example, in 2018, the Commission referred a couple of discrete issues to the Joint Board, but the Joint Board has not been able to issue a recommended decision on them. In short the new Board will need time to develop a meaningful recommendation. The combination of these recent changes and the procedural process necessary for any recommendation render it unlikely that the Joint Board could issue a recommended decision on comprehensive reform and that the Commission could consider that recommendation, and then act upon it before the current freeze expires. Even if the Joint Board could develop a recommendation for consideration, the Commission would likely seek comment on that recommendation before issuing an order revising the rules. Section 410(c) contemplates a Joint Board recommendation before the Commission moves forward on comprehensive separations reform. Therefore, as a practical matter, the Commission is limited at this point to either extending the separations freeze or allowing the long-fallow and outdated separations rules to take effect on January 1, 2025.

12. Benefits Outweigh the Costs. The Commission seeks comment on the limited options it has under the current circumstances. The Commission has consistently found that letting the freeze expire would impose significant burdens on rate-of-return carriers, particularly smaller rural carriers, and create undue instability. In extending the most recent freeze in 2018, the Commission explained that lifting the freeze and reinstating the separations rules after an absence of more than two decades, would make it extremely difficult, if not impossible, for most carriers to perform all of the studies needed to remain in full compliance. This would require substantial training and investment by rural incumbent LECs, and could cause significant disruptions to regulated rates, cost recovery, and other operating conditions when applying the outdated separations rules to today's operations. Indeed, the Commission has found that requiring carriers to reinstate their separations systems “would be unduly burdensome when there is a significant likelihood that there would be no lasting benefit to doing so.” 82 FR 25535-01. The Commission has thus previously concluded that the benefits that will result from granting a further extension of the freeze far exceed any possible harms. These prior conclusions are also compelling and remain relevant today. The Commission proposes to find that an additional extension of the freeze far outweighs any potential harms, and the Commission seeks comment on this proposal.

13. In extending the separations freeze, the Commission also proposes to direct rate-of-return incumbent LECs to continue to use the same frozen category relationships and jurisdictional allocation factors. When the Commission allowed a one-time unfreeze of category relationships in 2018, only three carriers capitalized on this opportunity. The Commission seeks comment on whether it should reintroduce the option to unfreeze category relationships at this time. The Commission also seeks comment on the comparative costs and benefits of maintaining the separations freeze without offering an option to unfreeze category relationships.

14. Length of the Freeze Extension. The Commission proposes an extension period of up to six years. Under this proposal, the freeze would be extended until December 31, 2030 or until comprehensive reform of the part 36 rules is achieved, whichever occurs earlier. The Commission seeks comment on this proposal. In 2018, given the difficulty of achieving reform up to that point, the Commission initially proposed a 15 year freeze because short-term extensions adopted in the past would “not provide the Joint Board, the Commission, and interested stakeholders sufficient time” to revise its rules. After considering comments submitted in response to that proposal, including from the State members of the Joint Board, the Commission found that an extension of up to six years was more appropriate.

15. When the Commission extended the freeze for six years in 2018, it concluded that this time period best “balances the competing considerations” of enabling the Joint Board to focus on solving the complex issues versus the Commission's experience in granting a series of short-term separations extensions in the past when attempts at separations reform stalled. Does this assessment continue to weigh in favor of the Commission granting another six-year freeze extension? Have any circumstances changed that would lead to a different assessment, or do parties have other views on the length of an extension? Should the freeze be extended for a longer period of time than six years? Repeated short-term freeze extensions necessarily consume Commission, State, and industry resources. Alternatively, should the Commission permanently extend the separations freeze, as some commenters have suggested in the past?

16. The Commission asks commenters to discuss the advantages and disadvantages of a temporally defined extension period versus an unlimited extension until comprehensive reform is achieved, and seeks comment on the specific reasons in support of recommended timeframes. In this regard, the Commission recognizes that the Federal and State members of the Joint Board have not issued a recommended decision on comprehensive separations reform in the more than two decades since the Commission originally proposed such reform. Commenters supporting shorter extension periods than the proposed six years should also take into account the time necessary for the Commission and the industry to adopt and implement revised separations rules and procedures.

17. The Commission also invites comment on what effect, if any, particular extension periods would have on rates and ratepayers. Would a relatively long or permanent extension be inconsistent with section 201(b) of the Act's prohibition on unjust and unreasonable charges? For example, in the past, some commenters have supported extending the freeze for 15 years, while others expressed concern that such a long freeze would result in unjust and unreasonable rates because of the frozen allocation of the underlying costs to the interstate and intrastate jurisdictions.

18. Ex Parte Requirements. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

19. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) in appendix B of the Further Notice and set forth below concerning the possible/potential impact of the rule and policy changes contained in this Further Notice. Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comment on this Further Notice. Comments must have a separate and distinct heading designating them as responses to the IRFA.

20. Paperwork Reduction Act. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198.

21. Providing Accountability Through Transparency Act. The Providing Accountability Through Transparency Act requires each agency, in providing notice of a rulemaking, to post online a brief plain-language summary of the proposed rule. Accordingly, the Commission will publish the required summary of this Further Notice on https://www.fcc.gov/proposed-rulemakings.

22. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules imposed in the Further Notice of Proposed Rulemaking (Further Notice). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments specified in the Further Notice. The Commission will send a copy of the Further Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

23. The Commission's part 36 rules regarding jurisdictional separations category relationships and cost allocation factors (separations rules) originated more than 35 years ago when the Commission and its State counterparts used costs to set rates, and the rules were designed to help prevent local exchange carriers (LECs) from recovering the same costs from both the interstate and intrastate jurisdictions. In 1997, the Commission initiated a proceeding to comprehensively reform those rules in light of the statutory, technological, and marketplace changes that had affected the telecommunications industry. In 2001, the Commission, pursuant to a recommendation by the Federal-State Joint Board on Jurisdictional Separations (Joint Board), froze the part 36 separations rules for a five-year period beginning July 1, 2001, or until the Commission completed comprehensive separations reform, whichever came first. The Commission has extended the freeze eight times, with the most recent extension set to expire on December 31, 2024.

24. In repeatedly extending the freeze, the Commission has explained that the freeze would stabilize and simplify the separations process while the Joint Board and the Commission continued to work on separations reform. This Joint Board has quite recently seated several new members who are just beginning their opportunity to delve into the complicated issues they need to grapple with in considering reform measures. In short, the new Joint Board will need time to develop a meaningful recommendation. The combination of these recent changes and the procedural process necessary for any recommendation render it unlikely that the Joint Board could issue a recommended decision on comprehensive reform and that the Commission could consider that recommendation, and then act upon it before the current freeze expires. Section 410(c) of the Communications Act of 1934, as amended, contemplates a Joint Board recommendation before the Commission moves forward on comprehensive separations reform. Therefore, as a practical matter, the Commission is limited at this point to either extending the separations freeze or allowing the outdated separations rules to take effect on January 1, 2025.

25. The Commission expects that permitting the freeze to expire would impose significant burdens on rate-of-return carriers, many of which include small carriers, that would far exceed the benefits, if any, of requiring those carriers to comply with rules that they have not implemented since 2001. As a result, the Further Notice proposes to extend for up to six years the freeze of part 36 category relationships and jurisdictional cost allocation factors to enable the Joint Board to address the complex nature of the work involved in developing comprehensive recommendations for separations reform. Under this proposal, this extension would continue until the earlier of December 31, 2030, or the completion of comprehensive reform of the part 36 jurisdictional separations rules. The Commission invites comments on this proposal.

26. The proposed action is authorized pursuant to sections 1, 4(i) and (j), 205, 220, 221(c), 254, 303(r), 403, and 410 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 205, 220, 221(c), 254, 303(r), 403, 410, and section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. 1302.

27. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

28. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 33.2 million businesses.

29. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2022, there were approximately 530,109 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

30. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2022 Census of Governments indicate there were 90,837 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,845 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 11,879 special purpose governments (independent school districts) with enrollment populations of less than 50,000. Accordingly, based on the 2022 U.S. Census of Governments data, we estimate that at least 48,724 entities fall into the category of “small governmental jurisdictions.”

31. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers.

32. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 4,590 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,146 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

33. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange carriers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 1,212 providers that reported they were incumbent local exchange service providers. Of these providers, the Commission estimates that 916 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of incumbent local exchange carriers can be considered small entities.

34. The Commission has included small incumbent LECs in this RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. Because the Commission's proposal to freeze the part 36 rules will affect incumbent LECs, some entities employing 1,500 or fewer employees may be affected by the rule changes proposed in the Further Notice. The Commission has therefore included small incumbent LECs in this RFA analysis, although this RFA action has no effect on the Commission's analyses and determinations in other, non-RFA contexts.

35. The proposed rules, if adopted, would not impose any new or additional requirements on small or other entities. The Further Notice proposes to extend an existing freeze, and the Commission does not anticipate small entities will incur additional compliance costs, or be required to hire professionals to comply with the rule proposals, if adopted.

36. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or part thereof, for such small entities.

37. The Commission's proposed rules to extend the separations freeze is not expected to have a significant economic impact on a substantial number of small entities. To the contrary, an extension of the separations freeze constitutes an essential step towards reducing unnecessary and burdensome costs to small entities when compared to the alternative of not doing so. For example, if the freeze was allowed to expire and was not extended, the outmoded separations rules would be reinstated. The Commission has consistently over the years found that such a result would impose new significant economic burdens on rate-of-return carriers, particularly smaller rural carriers, and create undue instability for those carriers. Indeed, if the separations rules were reinstated after an absence of more than two decades, most affected carriers would find it extremely difficult, if not impossible, to perform all of the studies needed to remain in full compliance. This would require substantial training and investment by affected rural incumbent LECs, and could cause significant disruptions in regulated rates, cost recovery, and other operating conditions when applying the outdated separations rules to today's operations.

38. In addition, the jurisdictional freeze has eliminated the need for many rate-of-return incumbent LECs that still perform cost studies, including incumbent LECs with 1,500 employees or fewer, to complete certain annual separations studies that otherwise would be required by the Commission's part 36 jurisdictional separations rules. Thus, an extension of this freeze would avoid increasing the administrative burden of regulatory compliance for these carriers, including small incumbent LECs.

39. The Commission has thus previously concluded that the benefits that will result from an additional extension of the freeze far exceed any possible harms and anticipates that those prior conclusions are compelling and remain relevant today. The Commission therefore proposes to extend the separations freeze to permit rate-of-return incumbent LECs to continue to use the same frozen category relationships and jurisdictional allocation factors. The Commission invites comment on this proposal and on the relative costs and benefits of continuing the separations freeze.

40. When the Commission granted a six-year freeze in 2018, it concluded that this time period best “balances the competing considerations” of enabling the Joint Board to focus on solving the complex issues versus the Commission's experience in granting a series of short-term separations extensions in the past when attempts at separations reform stalled. The Commission seeks comment on whether this assessment continues to weigh in favor of the Commission granting another six-year freeze extension, whether any circumstances changed that would lead to a different assessment, and whether parties have other views on the length of an extension.

41. None.

42. Accordingly, it is ordered, pursuant to sections 1, 4(i) and (j), 205, 220, 221(c), 254, 303(r), 403, and 410 of the Communication Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 205, 220, 221(c), 254, 303(r), 403, 410, and section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. 1302, that this Further Notice of Proposed Rulemaking and is adopted .

43. It is further ordered, pursuant to section 220(i) of the Communications Act, 47 U.S.C. 220(i), that notice be given to each State commission of the above rulemaking proceeding, and that the Secretary shall serve a copy of this Further Notice of Proposed Rulemaking on each State commission.

44. It is further ordered that the Commission's Office of the Secretary shall send a copy of this Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis and Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 36 as follows:

The United States is a member of the IATTC, which was established under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission (1949 Convention). In 2003, the IATTC updated the 1949 Convention through the adoption of the Convention for the Strengthening of the IATTC Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention). The Antigua Convention entered into force in 2010. The United States acceded to the Antigua Convention on February 24, 2016. The full text of the Antigua Convention is available at: https://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf.

The IATTC consists of 21 member nations and 5 cooperating non-member nations. The IATTC facilitates scientific research, as well as the conservation and management, of tuna and tuna-like species in the IATTC Convention Area. The IATTC Convention Area is defined as waters of the EPO within the area bounded by the west coast of the Americas and by 50° N latitude, 150° W longitude, and 50° S latitude. The IATTC maintains a scientific research and fishery monitoring program and regularly assesses the status of tuna, sharks, and billfish stocks in the IATTC Convention Area to determine appropriate catch limits and other measures deemed necessary to promote sustainable fisheries and prevent the overexploitation of these stocks.

As a party to the Antigua Convention and a member of the IATTC, the United States is legally bound to implement decisions of the IATTC under the TCA, as amended (16 U.S.C. 951 et seq. ). The TCA directs the Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the U.S. Coast Guard, to promulgate such regulations as may be necessary to carry out the United States' obligations under the Antigua Convention, including recommendations and decisions adopted by the IATTC. The authority of the Secretary of Commerce to promulgate such regulations has been delegated to NMFS.

The 101st Meeting of the IATTC was held in Victoria, Canada, in August 2023. At this meeting, the IATTC adopted Resolutions C-23-03 and C-23-04.

Resolution C-23-03 amends Resolution C-99-07 and continues to recommend that tender vessels remain prohibited, while clarifying that vessels may engage in FAD recovery activities that are limited to the collection of FADs for final disposal, but not for maintenance or adjustment. If FADs are recovered for final disposal or recycling, the resolution requires that all associated information on FAD recovery activities be reported to the IATTC Secretariat. The resolution encourages the initiation of recovery programs for FADs through cooperative initiatives among fishing vessels and other vessels implementing recovery projects in the IATTC Convention Area.

Resolution C-23-04 contains new measures regarding materials that can be used in FADs that are deployed or redeployed in the IATTC Convention Area. These include biodegradable and non-entangling materials which would be phased in between 2025 and 2029. Beginning on January 1, 2025, purse seine vessel owners and operators are required to meet non-entangling design requirements for FADs and the use of mesh nets will be prohibited for any part of a FAD. Resolution C-23-04 defines “non-entangling FAD” as “a FAD that does not include any netting materials for any part of the FAD including both the surface structure ( e.g., raft) and subsurface structure ( e.g., tail).” Beginning on January 1, 2026, purse seine vessel owners and operators are required to begin using biodegradable materials in either the surface or subsurface portion of FADs. By January 1, 2029, both the surface and subsurface portion of the FAD must be composed of biodegradable materials. Resolution C-23-04 defines “biodegradable” as “non-synthetic materials and/or bio- based alternatives that are consistent with international standards for materials that are biodegradable in marine environments. The components resulting from the degradation of these materials should not be damaging to the marine and coastal ecosystems or include heavy metals or plastics in their composition.”

This proposed rule would be implemented under the TCA (16 U.S.C. 951 et seq. ) and proposes changes to part 300, subpart C of title 50 of the Code of Federal Regulations (CFR). This proposed rule would implement provisions in Resolutions C-23-03 and C-23-04 that would: (1) clarify that vessels may engage in the recovery of FADs for final disposal or recycling and implement reporting requirements for recovered FADs, while continuing to prohibit tender vessels; (2) specify requirements for non-entangling FADs starting on January 1, 2025; and (3) specify requirements to phase in biodegradable FAD components starting on January 1, 2026.

The proposed rule would implement the provisions of Resolution C-23-03 by clarifying what are considered allowable FAD recovery activities by vessels and by implementing disposal and reporting requirements for recovered FADs in the IATTC Convention Area. Cooperative initiatives and recovery projects are encouraged in the resolution; however, they are not intended to be the focus of the proposed rule or to be a formal NMFS program. Rather, the proposed rule is meant to clarify that vessels may volunteer to engage in recovery activities and to describe the permissible parameters of such activities. While tender vessels  1 are still prohibited in the IATTC Convention Area (see 50 CFR 300.24(c) and 50 CFR 300.25(b)), the proposed rule would clarify that U.S. vessel owners and operators may recover FADs, provided the recovery activities are limited to collecting FADs for final disposal or recycling in port and do not include any type of maintenance, adjustment, or deployment.

Tuna purse seine vessels that recover FADs are still allowed to deploy and maintain FADs when engaged in normal fishing operations, but other vessels engaged in FAD recovery are prohibited from deploying or maintaining FADs. Purse seine vessels that interact with FADs must continue to comply with the requirements in 50 CFR 300.22 (c)(1).

The proposed rule would also implement a reporting requirement for information associated with all FADs recovered by vessel owners and operators in the IATTC Convention Area, unless that information is already reported by an observer. These data would be reported to the IATTC scientific staff for analysis using a format and address provided by NMFS. Because this information is already collected and reported to the IATTC by observers, if a vessel has an observer onboard, FAD recovery data would not need to be separately collected and reported by the vessel owners and operators.

The proposed rule would also implement the provisions of Resolution C-23-04 by amending regulations at 50 CFR 300.28 to require non-entangling and biodegradable materials. Since January 1, 2019, the IATTC and the United States have required “less entangling” FAD designs which allow a raft with mesh netting, if that mesh size is less than 7 centimeters and tightly wrapped such that no netting hangs below the FAD when deployed (see 50 CFR 300.28(g)(1)). Additionally, existing regulations stipulate that any netting used in the subsurface structure of the FAD must be tightly tied into bundles ( i.e., sausages) or have stretched mesh size less than 7 centimeters in a panel that is weighted on the lower end with at least enough weight to keep the netting taut in the water column (see 50 CFR 300.28(g)(2)).

The proposed rule would amend the existing regulations on FAD design to prohibit the use of mesh net from any part of the FAD and require all materials to be non-entangling beginning on January 1, 2025. A definition of “non-entangling FAD,” consistent with the definition adopted by the IATTC, would be included at 50 CFR 300.21 as follows: “Non-entangling FAD means a FAD that does not include any netting materials for any part of the FAD including both the surface structure ( e.g., raft) and subsurface structure ( e.g., tail).”

Additionally, beginning on January 1, 2026, the proposed rule would implement a phased approach requiring FADs to be made out of biodegradable materials. As discussed in more detail in the next paragraphs, purse seine vessel owners and operators would be required to begin using biodegradable materials in either the surface or subsurface portion of FADs beginning on January 1, 2026, and would be required to use biodegradable materials in both the surface and subsurface portion of the FAD beginning on January 1, 2029. A definition of “biodegradable,” consistent with the definition adopted by the IATTC, would be included at 50 CFR 300.21 as follows:

NMFS seeks comments on additional materials that could be authorized as biodegradable. In the future, if the members of the IATTC approve other standards, NMFS will revise the definition accordingly to include them.

By January 1, 2026, the proposed rule would require all FADs deployed or redeployed in the IATTC Convention Area to be designed and constructed according to one of three sets of specifications. Under option one, the surface part of the FAD must be made of fully biodegradable materials, except for flotation components, but the subsurface part may contain non-biodegradable materials ( e.g., synthetic raffia, metallic frame, plastic floats, nylon ropes). Under option two, the subsurface part of the FAD must be made of fully biodegradable materials, but the surface part and any flotation components may be made of non-biodegradable materials. Under option three, the surface part, except for flotation components, and subsurface part must both be made of fully biodegradable materials. All three options would allow for plastic-based flotation components ( e.g., plastic buoys, foam, purse-seine corks). The third option would allow an exception for satellite buoys that are attached to FADs to track them and for nylon ropes, which can be used exclusively to strengthen the structure of the floating or underwater component of the FAD.

By January 1, 2029, the proposed rule would require all FADs deployed or redeployed in the IATTC Convention Area to be designed and constructed such that the surface part and subsurface part are both made of fully biodegradable materials, except that any flotation component on the surface part may still be made of non-biodegradable materials. The exceptions for satellite buoys and nylon ropes discussed in the previous paragraph would continue to apply.

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the TCA and other applicable laws, subject to further consideration after public comment.

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

This proposed rule contains changes to the collection of information requirement for the purposes of the Paperwork Reduction Act of 1995 (PRA). NMFS is amending the supporting statement for the “West Coast Region Pacific Tuna Fisheries Logbook, Fish Aggregating Device Form, and Observer Safety Reporting,” Office of Management and Business (OMB) PRA requirements (OMB Control No. 0648-0148) to include the data collection requirements for U.S. vessel owners and operators to report information on recovered FADs to the IATTC if that information is not already collected and submitted to the IATTC by an observer onboard the vessel. Current FAD reporting requirements under that collection of information would continue to apply.

NMFS estimates that the public reporting burden for the collection of information for recovered FADs will average 5 minutes per form, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Under existing regulations at 50 CFR 300.22(c), vessel owners and operators that do not have an observer onboard are required to report detailed information on any interaction or activity with a deployed FAD, including information about the design of the FAD. NMFS estimates that the public reporting burden for this existing collection of information for FAD design will not change if the proposed changes to FAD design requirements are implemented.

NMFS is requesting public comment on the addition of the FAD recovery program data collection to the PRA package, including whether the paperwork would unnecessarily burden any vessel owners and operators. Public comment is sought regarding: (1) whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (2) the accuracy of the burden estimate; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and, (4) ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. See ADDRESSES section above for information on where to send comments on these or any other aspects of the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: https://www.reginfo.gov/public/do/PRAMain.

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The rationale for the certification is provided in the following paragraphs.

The U.S. SBA defines a “small business” (or “small entity”) as one with annual revenue that meets or is below an established size standard. For RFA purposes only, NMFS has established a small business size standard of $11 million in annual gross receipts for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 114111), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses.

NMFS prepared analyses for this regulatory action in light of this size standard. All of the entities directly regulated by this regulatory action are commercial finfish fishing businesses. Under this size standard, some U.S. purse seine vessels affected by this action are considered large, and some are small businesses. Non-fishing vessels may also engage in these voluntary FAD recovery activities. NMFS is aware of one non-governmental organization engaging in this activity in the western Pacific Ocean but is not aware of non-fishing vessels engaged in this activity in the IATTC Convention Area. Given the lack of information on these non-fishing vessels, NMFS is unable to evaluate if these entities are a small or large business. NMFS plans to reevaluate engagement of non-fishing vessels in FAD recovery programs in the future if more data become available on these activities.

There are two components to the U.S. tuna purse seine fishery in the EPO: (1) large purse seine vessels ( i.e., size class 6; greater than 363 metric tons (mt) carrying capacity) that typically are based in the western and central Pacific Ocean (WCPO); and (2) coastal purse seine vessels with smaller fish hold volumes ( i.e., size class 2-3; between 46 and 181 mt carrying capacity) that are based out of California. The proposed regulations would apply only to vessels that recover FADs in the IATTC Convention Area. To date, NMFS is only aware of large purse seine vessels being potentially interested in engaging in this activity in the EPO.

As of February 2024, the U.S. has 15 large purse seine vessels (all size class 6) registered to fish in the IATTC Convention Area. These large purse seine vessels target skipjack tuna by fishing on FADs and also fish on unassociated sets of schooling tuna. They also catch and retain yellowfin and bigeye tuna.

Currently, there are 15 active large U.S. purse seine vessels on the IATTC Regional Vessel Register authorized to fish in the EPO. Thirteen of these vessels also have Western and Central Pacific Fisheries Commission (WCPFC) Area Endorsements. WCPFC Area Endorsements are NMFS-issued authorizations required for a vessel to fish commercially for highly migratory species on the high seas in the WCPFC Convention Area as defined at 50 CFR 300.211. NMFS used cannery data from the IATTC and Regional Purse Seine Logbook (RPL) data from Pacific Islands Fisheries Science Center to estimate fish landings in both the EPO and WCPO for the vessels that fished in both the IATTC and WCPFC Convention Areas within a year.

Because neither gross receipts nor ex-vessel price information specific to individual fishing vessels are available to NMFS, NMFS applied regional price data—as approximations of ex-vessel prices—to annual catches of individual vessels obtained from RPLs and IATTC observer data, to estimate the vessels' annual receipts.

Using this approach, NMFS estimates that among the affected vessels, the range in average annual per-vessel receipts in 2021-2023 was $500,000 to $13.4 million with an average of approximately $9.5 million. Ten of the active purse seine vessels had estimated average annual receipts of less than $11 million, and thus are considered to be small entities. The remaining five are considered large businesses.

The expected economic effects of the proposed action are discussed in detail in the following paragraphs.

FAD recovery: Resolution C-23-03 encourages the commencement of recovery programs for FADs among fishing vessels and other vessels implementing recovery projects in the IATTC Convention Area. The proposed rule would establish reporting requirements for FAD recoveries if they occur. Because it is not mandatory to participate in the recovery of a FAD, any potential costs of recovering FADs are optional for U.S. vessels. For fishing vessel owners and operators opting to take part, the recovery operations could occur on fishing trips and would not necessarily need to be a separate trip to recover a FAD. As stated previously, non-fishing vessels may also engage in voluntary FAD recovery activities, but NMFS does not have enough information on what types of vessels may do this to include in this analysis. For vessel owners or operators that choose to participate in the recovery of FADs, the reporting requirements are similar to existing requirements of 50 CFR 300.22 (c) and are not expected to reduce the profitability of the fishery.

Non-entangling and biodegradable FAD design: As described earlier in this preamble, the use of non-entangling and biodegradable materials would be required for FADs deployed or redeployed in the IATTC Convention Area beginning on January 1, 2025 and on January 1, 2026, respectively.

Given the differences in the designs and materials used by each vessel for FADs, there is variation in costs. The availability of supplies can also vary and can have an impact on the cost. Some owners and operators of U.S. purse seine vessels have been experimenting with non-entangling and biodegradable FAD designs for several years and are already familiar with costs and construction of non-entangling and biodegradable FADs. During the IATTC's seventh meeting of the ad hoc working group on FADs in 2023, the IATTC scientific staff presented data on trials of non-entangling and biodegradable FAD prototypes paired with traditional FADs. The trials found the average catch rate for non-entangling and biodegradable FAD prototypes were comparable to traditional FADs, suggesting no substantial change in attracting target stocks. Furthermore, the IATTC trials showed that the lifespan ( i.e., the “operational” life) of traditional FADs and non-entangling and biodegradable prototypes were similar. At the 2019 IATTC FAD working group meeting, the International Seafood Sustainability Foundation (ISSF) presented and reported that the range of costs for non-entangling biodegradable FADs ranged from $180 to $450 depending on the design. In comparison, ISSF reported traditional FADs currently being used range from $250 to $900. Replacing and redeploying FADs is considered routine by large purse seine vessels, regardless of design type. NMFS does not expect the transition to the proposed FAD designs to reduce profitability of the fishery.

No disproportionate impacts between small and large businesses are expected. The proposed action to impose restrictions on FAD designs is not expected to change the fishing behavior of the U.S. fleet.

In summary, the proposed action is not expected to substantially change the typical fishing practices of affected vessels. Any impact to the income of U.S. vessels is expected to be minor. Therefore, NMFS has determined that the action is not expected to have a significant economic impact on a substantial number of small entities, or a disproportionate economic impact on the small entities relative to the large entities. Given these conclusions, an Initial Regulatory Flexibility Analysis is not required and none has been prepared.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 300 as follows: