Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / Proposed Rules 40229 

13. Technical Standards 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

14. Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Management Directive 023–01 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. This proposed 

rule is categorically excluded, under 

figure 2–1, paragraph (34)(g), of the 

Commandant Instruction because it 

involves the establishment of a safety 

zone. 

A preliminary environmental analysis 

checklist and a preliminary categorical 

exclusion determination are available in 

the docket where indicated under 

ADDRESSES. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine Safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 0170.1 

■ 2. Add § 165.902(b) to read as follows: 

§ 165.902 Niagara River at Niagara Falls, 

New York—safety zone. 

* * * * * 

(b) The following is a safety zone— 

The United States waters of the Lower 

Niagara River, Niagara Falls, NY from a 

straight line drawn from position 

43°07′10.70′′ N., 079°04′02.32′′ W. (NAD 

83) and 43°07′09.41′′ N., 079°04′05.41′′ 

W. (NAD 83) just south of the whirlpool 

rapids from the east side of the river to 

the international border of the United 

States, to a straight line drawn from 

position 43°06′34.01′′ N., 079°03′28.04′′ 

W. (NAD 83) and 43°06′33.52′′ N., 

079°03′30.42′′ W. (NAD 83) at the 

International Railroad Bridge. 

Dated: June 15, 2016. 

B.W. Roche, 

Captain, U.S. Coast Guard, Captain of the 

Port Buffalo. 

[FR Doc. 2016–14620 Filed 6–20–16; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2016–0320; FRL–9947–96– 

Region 2] 

Disapproval of Interstate Transport 

Requirements for the 2008 Ozone 

National Ambient Air Quality 

Standards; New York 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to partially 

approve and partially disapprove 

elements of New York’s State 

Implementation Plan (SIP) submission 

regarding the infrastructure 

requirements of section 110(a)(1) and (2) 

of the Clean Air Act (CAA) for the 2008 

ozone national ambient air quality 

standards (NAAQS). The infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. This 

action pertains specifically to 

infrastructure requirements concerning 

interstate transport provisions. 

DATES: Comments must be received on 

or before July 21, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R02–OAR–2016–0320 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the Web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth Fradkin, Environmental 

Protection Agency, 290 Broadway, 25th 

Floor, New York, NY 10007–1866, (212) 

637–3702, or by email at 

Fradkin.Kenneth@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. EPA’s Review 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. Background 

Section 110(a) of the CAA imposes an 

obligation upon states to submit SIPs 

that provide for the implementation, 

maintenance and enforcement of a new 

or revised NAAQS within 3 years 

following the promulgation of that 

NAAQS. Section 110(a)(2) lists specific 

requirements that states must meet in 

these SIP submissions, as applicable. 

The EPA refers to this type of SIP 

submission as the ‘‘infrastructure’’ SIP 

because the SIP ensures that states can 

implement, maintain and enforce the air 

standards. Within these requirements, 

section 110(a)(2)(D)(i) contains 

requirements to address interstate 

transport of NAAQS pollutants. A SIP 

revision submitted for this sub-section 

is referred to as an ‘‘interstate transport 

SIP.’’ This rulemaking proposes action 

on the CAA section 110(a)(2)(D)(i) 

requirements of these submissions. In 

particular, section 110(a)(2)(D)(i)(I) 

requires SIPs to contain adequate 

provisions to prohibit emissions from 

the state that will contribute 

significantly to nonattainment of the 

NAAQS in any other state (commonly 

referred to as prong 1), or interfere with 

maintenance of the NAAQS in any other 

state (prong 2). Section 110(a)(2)(D)(i)(II) 

requires that infrastructure SIPs include 

provisions prohibiting any source or 

other type of emissions activity in one 

state from interfering with measures 

required to prevent significant 

deterioration (PSD) of air quality (prong 

3) and to protect visibility (prong 4) in 

another state. 

On March 12, 2008, EPA strengthened 

the NAAQS for ozone. EPA revised the 

level of the 8-hour ozone NAAQS from 

0.08 parts per million (ppm) to 0.075 

ppm. EPA also revised the secondary 8- 

hour standard to the level of 0.075 ppm 

making it identical to the revised 

primary standard. Infrastructure SIPs 

addressing the revised standard, 


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1 76 FR 48208 (August 8, 2011). 

2CSAPR was promulgated by EPA to help states 

reduce air pollution and attain and maintain CAA 

standards, including the 1997 ozone NAAQS and 

the 1997 and 2006 PM2.5 NAAQS. On August 21, 

2012, the D.C. Circuit vacated CASPR. See EME 

Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 

(D.C. Circuit 2012). The Court ordered EPA to 

continue administering CAIR pending the 

promulgation of a valid replacement for CSAPR. Id. 

at 60. 

including the interstate transport 

requirements, were due March 12, 2011. 

On April 4, 2013 the New York State 

Department of Environmental 

Conservation (NYSDEC) submitted a 

revision to its SIP to address 

requirements under section 110(a)(2) of 

the CAA (the infrastructure 

requirements) related to the 2008 ozone 

NAAQS, including interstate transport. 

This proposed action pertains only to 

the portion of the SIP submittal 

addressing section 

110(a)(2)(D)(i)(I)(prongs 1 and 2), and 

section 110(a)(2)(D)(i)(II)(prong 4). EPA 

will address the other portions of the 

April 4, 2013 infrastructure SIP 

submittal, including section 

110(a)(2)(D)(i)(II)(prong 3), in another 

action. 

II. EPA’s Review 

Section 110(a)(2)(D) of the Clean Air 

Act is divided into two subsections: 

110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The 

first of these, 110(a)(2)(D)(i), in turn, 

contains four ‘‘prongs’’ the first two of 

which appear in 110(a)(2)(D)(i)(I) and 

the second two of which appear in 

110(a)(2)(D)(i)(II). The two prongs in 

110(a)(2)(D)(i)(I) require New York’s SIP 

to contain adequate provisions 

prohibiting any source or other type of 

emissions activity within the State from 

emitting any air pollutants in amounts 

which will contribute significantly to 

nonattainment in any other state with 

respect to any primary or secondary 

NAAQS (prong 1), or interfere with 

maintenance by any other state with 

respect to any primary or secondary 

NAAQS (prong 2). The two prongs in 

110(a)(2)(D)(i)(II) prohibit any source or 

other type of emissions activity within 

the State from emitting any air 

pollutants in amounts which will 

interfere with measures required to be 

included in the applicable 

implementation plan for any other state 

under part C to prevent significant 

deterioration of air quality (prong 3) or 

to protect visibility (prong 4). 

Section 110(a)(2)(D)(i)(I)—Prongs 1 

and 2 

In its SIP submission with respect to 

section 110(a)(2)(D)(i)(I) (prongs 1 and 

2) for the 2008 ozone NAAQS, New 

York cited various state rules including 

its nitrogen oxides (NOX) Reasonably 

Available Control Technology (RACT) 

regulations to reduce emissions of NOX

from its major stationary sources; NOX

RACT Rules for Cement Plants, Glass 

Plants, Asphalt Production, and other 

general emission sources; volatile 

organic carbon (VOC) regulations that 

limit emissions from major and area 

sources; and the California low emission 

vehicle program provisions under CAA 

Section 177. 

In its submittal, New York indicated 

that, based on preliminary emissions 

inventory work, the state would achieve 

significant NOX and VOC reductions 

from existing emission reduction 

programs. New York estimated that, 

between 2007 and 2020, it will reduce 

NOX emissions by 46.6% (from 579,471 

tons to 328,457 tons). Specifically, New 

York estimated that NOX RACT 

limitations will result in NOX emission 

reductions of 28,796 tons per year, or 

78.9 tons per day from 2007 levels. With 

regard to VOCs, New York estimates 

that, between 2007 and 2020, it will 

reduce VOC emissions by 20.8% (from 

484,440 tons in 2007 down to 368,784 

tons in 2020). 

New York further cited preliminary 

screening modeling performed for the 

Ozone Transport Commission (OTC) 

Modeling Committee that assumed a 

48–68% decrease in NOX emissions and 

a 30% reduction in VOC emissions in 

New York by 2020. The modeling 

showed that the only monitors 

‘‘predicted’’ to be nonattainment 

(outside the New York metropolitan 

nonattainment area) were located in the 

Philadelphia metropolitan area. New 

York asserted that the Philadelphia 

monitors would be most significantly 

affected by emissions from within 

Pennsylvania and other upwind states. 

New York indicated that they used the 

Community Multi-scale Air Quality 

(CMAQ) and the California 

Photochemical Grid (CALGRID) models 

for their analysis. 

New York also noted that its 

participation in the NOX trading 

programs promulgated in EPA’s Clean 

Air Interstate Rule (CAIR) addressed 

interstate transport requirements with 

respect to the 1997 ozone NAAQS. 

Although the State acknowledges that 

CAIR was remanded by the U.S. Court 

of Appeals for the District of Columbia 

Circuit (D.C. Circuit) in North Carolina 

v. EPA, 531 F.3d 896 (2008), the State 

indicated that it could rely on CAIR 

emission reductions to address 

interstate transport requirements for the 

2008 ozone NAAQS because EPA had 

not yet (at the time of the submittal) 

developed a valid replacement rule. 

New York notes that EPA’s Cross State 

Air Pollution Rule (CSAPR),1 which 

EPA intended to replace CAIR, was 

vacated by the D.C. Circuit in August 

2012, and that court instructed EPA to 

continue implementation of CAIR until 

the EPA promulgates a valid 

replacement.2 New York notes that 

CAIR imposed an effective emissions 

rate of 0.094 lbs NOX/mmBTU on New 

York sources. New York also compares 

its 2011 ozone season emission NOX

rates with NOX rates achieved in other 

states, noting that New York electric 

generating units (EGUs) operated at an 

actual NOX rate of 0.088 lbs 

NOX/mmBTU. For these reasons, New 

York concluded that it has satisfied its 

obligations pursuant to section 

110(a)(2)(D)(i)(I) with respect to the 

2008 ozone NAAQS. 

Finally, New York’s SIP submission 

acknowledges that the state has 

contributed to downwind 

nonattainment and maintenance 

problems in New Jersey, Connecticut, 

Maryland, Massachusetts, Pennsylvania, 

Rhode Island, Virginia, and the District 

of Columbia, citing contribution 

analysis conducted when the EPA 

promulgated CSAPR. New York 

contends that because it shares 

nonattainment areas with New Jersey 

and Connecticut, and because the other 

states to which it has been linked are 

members of the Ozone Transport 

Commission, the state will address its 

obligations with respect to its 

contribution to nonattainment and 

interference with maintenance of the 

NAAQS in these states through the 

other statutory processes. 

Although New York’s analysis claims 

that there will be substantial emission 

reductions from existing programs from 

2007 to 2020, New York admits that 

those reductions are based on 

preliminary estimates that have not 

been updated since New York’s March 

2013 submission. Nor has the state 

demonstrated that the emission rates at 

which EGUs in the state operated are 

the result of enforceable emission limits 

or other mandatory programs such that 

the emission rates will not increase. 

Moreover, while the State asserts that it 

will achieve a 46.6% NOX reduction, 

and 20.8% VOC reduction during that 

time period, New York’s modeling used 

higher levels of assumed reductions, 

assuming 48% NOX reductions and 30% 

VOC reductions without demonstrating 

how it will achieve those higher levels 

of emissions reductions. Even assuming 

these projected emissions reductions 

were reliable, New York’s modeling 

shows ‘‘predicted’’ nonattainment in 


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Connecticut, New Jersey, and 

Pennsylvania. New York does not 

adequately explain how it concludes 

that New York emissions do not 

significantly contribute to these 

predicted exceedances. The fact that the 

State might have certain planning 

obligations with respect to areas in these 

states under other statutory provisions 

does not absolve the State of its 

obligation to address the planning 

requirements of section 

110(a)(2)(D)(i)(I). 

By only evaluating areas with 

predicted nonattainment in 2020, New 

York has also failed to address the 

State’s potential interference with 

maintenance of the 2008 ozone NAAQS 

in downwind states. In remanding CAIR 

to the EPA in the North Carolina 

decision, the D.C. Circuit explained that 

the regulating authority must give the 

‘‘interfere with maintenance’’ clause of 

section 110(a)(2)(D)(i)(I) ‘‘independent 

significance’’ by evaluating the impact 

of upwind state emissions on 

downwind areas that, while currently in 

attainment, are at risk of future 

nonattainment, considering historic 

variability. 531 F.3d at 910–911. New 

York’s analysis does not give the 

‘‘interfere with maintenance’’ clause of 

section 110(a)(2)(D)(i)(I) independent 

significance because its analysis did not 

attempt to evaluate the potential impact 

of New York emissions on areas that are 

currently measuring clean data, but that 

may have issues maintaining that air 

quality. 

Furthermore, the 2020 projection year 

New York chose for its modeling and by 

which the State asserts it will achieve 

substantial NOX reductions is two years 

later than the moderate area attainment 

date for the 2008 ozone NAAQS, which 

is July 11, 2018. Among other things, 

the court’s decision in North Carolina, 

clarified that, to the extent possible, 

upwind emissions reductions necessary 

to address the interstate transport of air 

pollution should be aligned with the 

attainment dates for downwind 

nonattainment areas. 531 F.3d at 912. 

New York has not demonstrated either 

that the State’s SIP is adequate to 

address interstate transport by the 

downwind attainment date for the 2008 

ozone NAAQS or that emissions 

reductions necessary to address 

interstate transport are not practically 

feasible until 2020. 

Among the emissions reductions cited 

by New York in its SIP, the State cites 

its participation in CAIR as a control 

measure that results in control of NOX

emissions within the State. New York 

notes that under CAIR, New York EGUs 

were subject to both the ozone season 

NOX emissions trading program and the 

annual NOX emissions trading program. 

The CAIR ozone season NOX emissions 

trading program was intended to 

address interstate transport of air 

pollution for the 1997 ozone NAAQS. 

The CAIR annual NOX emissions 

trading program, along with the annual 

sulfur dioxide (SO2) trading program, 

was intended to address interstate 

transport of air pollution for the 1997 

fine particulate matter (PM2.5) NAAQS. 

Although New York correctly notes 

that the North Carolina decision kept 

CAIR in place temporarily while EPA 

developed a replacement, and that the 

D.C. Circuit later issued a decision 

vacating that replacement, CSAPR, and 

requiring continued implementation of 

CAIR, the EPA does not agree that it is 

appropriate to rely on CAIR for 

purposes of addressing interstate 

transport with respect to the 2008 ozone 

NAAQS. First, EPA designed CAIR to 

address the 1997 ozone NAAQS, but not 

the more stringent 2008 ozone standard 

at issue here. It is not sufficient to 

merely cite evidence of compliance with 

older programs such as CAIR or 

measures implemented for prior ozone 

NAAQS as a means for satisfying 

interstate transport obligations for the 

2008 ozone NAAQS. 

More importantly, in North Carolina, 

the D.C. Circuit held that CAIR was 

‘‘fundamentally flawed,’’ 531 F.3d at 

929, in part because CAIR did not 

satisfy the statutory requirement to 

‘‘achieve something measurable towards 

the goal of prohibiting sources ‘within 

the State’ from contributing to 

nonattainment or interfering with 

maintenance in ‘any other State.’ ’’ Id. at 

908. Accordingly, the D.C. Circuit held 

in EME Homer City Generation, L.P. v. 

EPA, ‘‘when our decision in North 

Carolina deemed CAIR to be an invalid 

effort to implement the requirements of 

the good neighbor provision, that ruling 

meant that the initial approval of the 

CAIR SIPs was in error at the time it was 

done.’’ 795 F.3d 118, 133 (2015). For 

these reasons, the EPA cannot now 

approve an interstate transport SIP 

addressing any NAAQS based on the 

state’s participation in CAIR. 

Regardless of CAIR’s infirmities, the 

rule is no longer being implemented. 

Subsequent to New York’s submission 

of its SIP, on April 29, 2014, the U.S. 

Supreme Court reversed that D.C. 

Circuit decision vacating CSAPR and 

remanded the case to the D.C. Circuit for 

further proceedings. EPA v. EME Homer 

City Generation, L.P., 134 S. Ct. 1584 

(2014). On October 23, 2014, the D.C. 

Circuit granted our motion to lift the 

judicial stay on CSAPR and delay 

compliance deadlines by three years. 

EME Homer City Generation, L.P. v. 

EPA, No. 11–1302 (D.C. Cir. Oct. 23, 

2014), Order at 3. Consistent with the 

Court’s order we issued an interim final 

rule amending CSAPR so that 

compliance could begin in an orderly 

manner on January 1, 2015 (79 FR 

71663, December 3, 2014), replacing 

CAIR. On July 28, 2015, the D.C. Circuit 

issued its decision on the issues raised 

on remand from the Supreme Court. The 

court denied all of petitioners’ facial 

challenges to CSAPR, but remanded 

several emissions budgets to the EPA for 

reconsideration. EME Homer City 

Generation, L.P v. EPA, 795 F.3d 118 

(D.C. Cir. 2015). A final rule making the 

revised CSAPR implementation 

schedule permanent was issued on 

March 14, 2016. 81 FR 13275. 

Accordingly, CAIR implementation 

ended in 2014 and CSAPR 

implementation began in 2015. States 

and the EPA are no longer 

implementing the CAIR trading 

programs. Thus, it is no longer 

appropriate for states to rely on the 

emissions reductions achieved by 

compliance with CAIR to satisfy 

emission reduction obligations. 

EPA has recently shared technical 

information with states to facilitate their 

efforts to address interstate transport 

requirements for the 2008 ozone 

NAAQS. EPA developed this technical 

information following the same 

approach used to evaluate interstate 

contribution in CSAPR in order to 

support the recently proposed CrossState Air Pollution Rule Update for the 

2008 Ozone NAAQS, 80 FR 75706 (Dec. 

3, 2015) (‘‘CSAPR Update Rule’’). In 

CSAPR, EPA used detailed air quality 

analyses to determine whether an 

eastern state’s contribution to 

downwind air quality problems was at 

or above specific thresholds. If a state’s 

contribution did not exceed the 

specified air quality screening 

threshold, the state was not considered 

‘‘linked’’ to identified downwind 

nonattainment and maintenance 

receptors and was therefore not 

considered to significantly contribute or 

interfere with maintenance of the 

standard in those downwind areas. If a 

state exceeded that threshold, the state’s 

emissions were further evaluated, taking 

into account both air quality and cost 

considerations, to determine what, if 

any, emissions reductions might be 

necessary. For the reasons stated below, 

we believe it is appropriate to use the 

same approach we used in CSAPR to 

establish an air quality screening 

threshold for the evaluation of interstate 

transport requirements for the 2008 

ozone standard. 

In CSAPR, EPA proposed an air 

quality screening threshold of one 


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3Notice of Availability of the Environmental 

Protection Agency’s Updated Ozone Transport 

Modeling Data for the 2008 Ozone National 

Ambient Air Quality Standard (NAAQS), 80 FR 

46271 (August 4, 2015). 

4These data also appear in Table V.D–1 of the 

CSAPR Update proposal. See 80 FR at 75727. 

percent of the applicable NAAQS and 

requested comment on whether one 

percent was appropriate. EPA evaluated 

the comments received and ultimately 

determined that one percent was an 

appropriately low threshold because 

there were important, even if relatively 

small, contributions to identified 

nonattainment and maintenance 

receptors from multiple upwind states. 

In response to commenters who 

advocated a higher or lower threshold 

than one percent, EPA compiled the 

contribution modeling results for 

CSAPR to analyze the impact of 

different possible thresholds for the 

eastern United States. EPA’s analysis 

showed that the one-percent threshold 

captures a high percentage of the total 

pollution transport affecting downwind 

states, while the use of higher 

thresholds would exclude increasingly 

larger percentages of total transport. For 

example, at a five percent threshold, the 

majority of interstate pollution transport 

affecting downwind receptors would be 

excluded. In addition, EPA determined 

that it was important to use a relatively 

lower one-percent threshold because 

there are adverse health impacts 

associated with ambient ozone even at 

low levels. EPA also determined that a 

lower threshold such as 0.5 percent 

would result in relatively modest 

increases in the overall percentages of 

fine particulate matter and ozone 

pollution transport captured relative to 

the amounts captured at the one-percent 

level. EPA determined that a ‘‘0.5 

percent threshold could lead to 

emission reduction responsibilities in 

additional states that individually have 

a very small impact on those receptors— 

an indicator that emission controls in 

those states are likely to have a smaller 

air quality impact at the downwind 

receptor. We are not convinced that 

selecting a threshold below one percent 

is necessary or desirable.’’ 

In the final CSAPR, EPA determined 

that one percent was a reasonable 

choice considering the combined 

downwind impact of multiple upwind 

states in the eastern United States, the 

health effects of low levels of fine 

particulate matter and ozone pollution, 

and EPA’s previous use of a one-percent 

threshold in CAIR. EPA used a single 

‘‘bright line’’ air quality threshold equal 

to one percent of the 1997 8-hour ozone 

standard, or 0.08 ppm. The projected 

contribution from each state was 

averaged over multiple days with 

projected high modeled ozone, and then 

compared to the one-percent threshold. 

We concluded that this approach for 

setting and applying the air quality 

threshold for ozone was appropriate 

because it provided a robust metric, was 

consistent with the approach for fine 

particulate matter used in CSAPR, and 

because it took into account, and would 

be applicable to, any future ozone 

standards below 0.08 ppm. EPA has 

subsequently proposed to use the same 

threshold for purposes of evaluating 

interstate transport with respect to the 

2008 ozone standard in the CSAPR 

Update Rule. 

On August 4, 2015, EPA issued a 

Notice of Data Availability (NODA) 

containing air quality modeling data 

that applies the CSAPR approach to 

contribution projections for the year 

2017 for the 2008 8-hour ozone 

NAAQS.3 The modeling data released in 

this NODA was also used to support the 

proposed CSAPR Update Rule. The 

moderate area attainment date for the 

2008 ozone standard is July 11, 2018. In 

order to demonstrate attainment by this 

attainment deadline, states will use 

2015 through 2017 ambient ozone data. 

Therefore, EPA proposed that 2017 is an 

appropriate future year to model for the 

purpose of examining interstate 

transport for the 2008 ozone NAAQS. 

EPA used photochemical air quality 

modeling to project ozone 

concentrations at air quality monitoring 

sites to 2017 and estimated state-bystate ozone contributions to those 2017 

concentrations. This modeling used the 

Comprehensive Air Quality Model with 

Extensions (CAMx version 6.11) to 

model the 2011 base year and the 2017 

future base case emissions scenarios to 

identify projected nonattainment and 

maintenance sites with respect to the 

2008 ozone NAAQS in 2017. EPA used 

nationwide state-level ozone source 

apportionment modeling (CAMx Ozone 

Source Apportionment Technology/

Anthropogenic Precursor Culpability 

Analysis technique) to quantify the 

contribution of 2017 base case NOX and 

VOC emissions from all sources in each 

state to the 2017 projected receptors. 

The air quality model runs were 

performed for a modeling domain that 

covers the 48 contiguous United States 

and adjacent portions of Canada and 

Mexico. The NODA and the supporting 

technical support documents have been 

included in the docket for this SIP 

action. The modeling data released in 

the NODA on August 4, 2015 and the 

CSAPR Update are the most up-to-date 

information EPA has developed to 

inform our analysis of upwind state 

linkages to downwind air quality 

problems. As discussed in the CSAPR 

Update proposal for the 2008 ozone 

NAAQS, the air quality modeling (1) 

identified locations in the U.S. where 

EPA expects nonattainment or 

maintenance problems in 2017 for the 

2008 ozone NAAQS (i.e., nonattainment 

or maintenance receptors), and (2) 

quantified the projected contributions of 

emissions from upwind states to 

downwind ozone concentrations at 

those receptors in 2017 (80 FR 75706, 

75720–30, December 3, 2015). 

Consistent with CSAPR, EPA proposed 

to use a threshold of 1 percent of the 

2008 ozone NAAQS (0.75 parts per 

billion) to identify linkages between 

upwind states and downwind 

nonattainment or maintenance 

receptors. EPA proposed that eastern 

states with contributions to a specific 

receptor that meet or exceed this 

screening threshold are considered 

‘‘linked’’ to that receptor, and were 

analyzed further to quantify available 

emissions reductions necessary to 

address interstate transport to these 

receptors. 

The results of EPA’s air quality 

modeling with respect to New York is 

summarized in Table 1 below.4 That 

modeling indicates that emissions from 

New York are linked to both 

nonattainment and maintenance 

receptors in downwind states. 

TABLE 1—CSAPR UPDATE PROPOSAL CONTRIBUTIONS TO DOWNWIND NONATTAINMENT AND MAINTENANCE AREAS

State Largest contribution to 

nonattainment 

Largest contribution to 

maintenance 

Downwind nonattainment 

receptors 

located in states 

Downwind maintenance 

receptors located 

in states 

New York ......................... 16.96 ppb ....................... 17.21 ppb ....................... Connecticut .................... Connecticut and New Jersey. 


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5New York and others interested parties have 

provided comments on both the NODA and 

proposed CSAPR Update Rule. See Docket No. 

EPA–HQ–OAR–2015–0500 at http://

www.regulations.gov. We will consider these 

comments in final rulemaking on the CSAPR 

Update Rule. Even absent this data, New York’s SIP 

failed to adequately address the requirements of 

CAA section 110(a)(2)(D)(i)(I) with respect to the 

2008 ozone NAAQS. 

As noted above, New York provided 

information documenting significant 

emission reductions that have been 

made throughout the state beginning in 

1995 and additional emission 

reductions expected to occur by 2020. 

These controls have resulted in 

significant reductions in NOX emissions 

in New York and undoubtedly have 

reduced the amount of transported 

pollution to other states. However, 

many of the emission reductions 

achieved through these measures were 

accounted for in the EPA’s modeling 

baseline of 2011 used to evaluate 

interstate transport with respect to the 

2008 ozone NAAQS, and further 

accounted for in EPA’s modeling 

projections to 2017. Accordingly, the 

most recent technical analysis available 

to the EPA contradicts New York’s 

conclusion that the state’s SIP contains 

adequate provisions to address 

interstate transport as to the 2008 ozone 

standard. Furthermore, New York did 

not demonstrate how these rules and 

data developed for different purposes 

provide sufficient controls on emissions 

to address interstate transport for the 

2008 ozone NAAQS. Despite the 

substantial emissions reductions 

achieved by New York, we have 

subsequently published information and 

proposed an update to CSAPR that 

addresses the 2008 ozone NAAQS that 

demonstrates New York emissions still 

have an impact on other states. 

EPA is proposing to disapprove the 

2008 ozone New York Infrastructure SIP 

submission for both the prong 1 and 

prong 2 requirements of CAA section 

110(a)(2)(D)(i)(I). As explained above, 

the SIP submission does not provide an 

adequate technical analysis 

demonstrating that the state’s SIP 

contains adequate provisions 

prohibiting emissions that will 

significantly contribute to 

nonattainment or interfere with the 

2008 ozone NAAQS in any other state. 

Moreover, EPA’s most recent modeling 

indicates that emissions from New York 

are projected to significantly contribute 

to downwind nonattainment and 

maintenance receptors in other states.5

Section 110(a)(2)(D)(i)(II)—Prong 4 

In this action, EPA is proposing that 

New York satisfies the 110(a)(2)(D)(i)(II) 

requirement for visibility (or prong 4). 

New York addresses visibility 

protection requirements for the 2008 

ozone NAAQS through its Regional 

Haze SIP. EPA approved New York’s 

Regional Haze SIP submittal (August 28, 

2012, 77 FR 51915) as part of New 

York’s SIP. The regional haze rule 

requires that a state participating in a 

regional planning process include all 

measures needed to achieve its 

apportionment of emission reduction 

obligations agreed upon through that 

process. Thus, New York’s approved 

Regional Haze SIP ensures that 

emissions from sources within the State 

are not interfering with measures to 

protect visibility in other states. 

EPA’s notes that New York’s Regional 

Haze SIP was supplemented with a FIP 

by EPA for three units at two sources 

where EPA disapproved the Best 

Available Retrofit Technology (BART) 

determinations for those units. In our 

August 2012 rulemaking, EPA 

promulgated a FIP to address our 

disapproval of BART determinations for 

Roseton Generating Station Units 1 and 

2 and Danskammer Generating Station’s 

Unit 4. 77 FR 51915 (Aug. 28, 2012). 

The additional emission reductions 

under the FIP were, however, not 

necessary to demonstrate that New York 

met its share of the emissions 

reductions sufficient to meet reasonable 

progress goals (found at 40 CFR 51.308 

(d)(1)) at Class I areas affected by New 

York’s emissions. EPA fully approved 

that aspect of New York’s Regional Haze 

SIP. EPA’s analysis demonstrating that 

New York had met its share of its 

regional emissions reductions can be 

found in the Regional Haze Technical 

Support document, which is available 

in the docket for the rule. 

Since EPA’s action on New York’s 

Regional Haze Plan, the Title V permits 

for Danskammer and Roseton have been 

updated by New York to incorporate the 

FIP limits established by EPA. The Title 

V permit for Danskammer was 

submitted to EPA as a SIP revision on 

August 20, 2015. 

III. What action is EPA taking? 

EPA is proposing to disapprove the 

portion of the April 4, 2013 New York 

SIP submittal pertaining to the 

requirements of CAA section 

110(a)(2)(D)(i)(I) regarding interstate 

transport of air pollution that will 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2008 ozone NAAQS 

(i.e., CAA section 110 (a)(2)(D)(i)(I) 

(prongs 1 and 2)) in other states. 

Disapproval will establish a 2-year 

deadline for EPA to promulgate a FIP to 

address New York’s CAA interstate 

transport requirements pertaining to 

significant contribution to 

nonattainment and interference with 

maintenance unless the State submits, 

and EPA approves a SIP that meets 

these requirements (per section 

110(c)(1) of the CAA). Disapproval does 

not start a mandatory sanctions clock 

pursuant to CAA section 179 because 

this action does not pertain to either a 

part D plan for nonattainment areas 

required under CAA section 110(a)(2)(I) 

or a SIP call pursuant to CAA section 

110(k)(5). 

EPA is proposing approval of the 

portion of the April 4, 2013 New York 

SIP submittal pertaining to the CAA 

section 110(a)(2)(D)(i)(II) requirement 

for visibility (or prong 4). 

EPA is soliciting public comments on 

the issues discussed in this proposal. 

These comments will be considered 

before EPA takes final action. Interested 

parties may participate in the Federal 

rulemaking procedure by following the 

directions in the ADDRESSES section of 

this Federal Register. 

IV. Statutory and Executive Order 

Reviews 

a. Executive Order 12866, Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (E.O.) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the E.O. 

b. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., because this 

proposed partial approval and partial 

disapproval of SIP revisions under CAA 

section 110 will not in-and-of itself 

create any new information collection 

burdens but simply proposes to approve 

certain State requirements, and to 

disapprove certain other State 

requirements, for inclusion into the SIP. 

Burden is defined at 5 CFR 1320.3(b). 

c. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to conduct 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 


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40234 Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / Proposed Rules 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule, we 

certify that this proposed action will not 

have a significant impact on a 

substantial number of small entities. 

This proposed rule does not impose any 

requirements or create impacts on small 

entities. This proposed partial SIP 

approval and partial SIP disapproval 

under CAA section 110 will not in-andof itself create any new requirements 

but simply proposes to approve certain 

State requirements, and to disapprove 

certain other State requirements, for 

inclusion into the SIP. Accordingly, it 

affords no opportunity for EPA to 

fashion for small entities less 

burdensome compliance or reporting 

requirements or timetables or 

exemptions from all or part of the rule. 

Therefore, this action will not have a 

significant economic impact on a 

substantial number of small entities. 

We continue to be interested in the 

potential impacts of this proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

d. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local, or tribal 

governments or the private sector. EPA 

has determined that the proposed 

partial approval and partial disapproval 

action does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

state, local, or tribal governments in the 

aggregate, or to the private sector. This 

action proposes to approve certain preexisting requirements, and to 

disapprove certain other pre-existing 

requirements, under state or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

state, local, or tribal governments, or to 

the private sector, result from this 

proposed action. 

e. Executive Order 13132, Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely proposes to approve certain state 

requirements, and to disapprove certain 

other State requirements, for inclusion 

into the SIP and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. Thus, Executive Order 

13132 does not apply to this action. 

f. Executive Order 13175, Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because the SIP on which EPA is 

proposing action would not apply in 

Indian country located in the state, and 

EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

Thus, Executive Order 13175 does not 

apply to this proposed action. 

g. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This proposed action is not 

subject to Executive Order 13045 

because it is not an economically 

significant regulatory action based on 

health or safety risks subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997). This proposed partial 

approval and partial disapproval under 

CAA section 110 will not in-and-of itself 

create any new regulations but simply 

proposes to approve certain state 

requirements, and to disapprove certain 

other state requirements, for inclusion 

into the SIP. 

h. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule 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. 

i. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

EPA believes that this proposed 

action is not subject to requirements of 

Section 12(d) of NTTAA because 

application of those requirements would 

be inconsistent with the Clean Air Act. 

j. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Population 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA lacks the discretionary authority 

to address environmental justice in this 

proposed action. In reviewing SIP 

submissions, EPA’s role is to approve or 

disapprove state choices, based on the 

criteria of the Clean Air Act. 

Accordingly, this action merely 

proposes to partially approve and 

partially disapprove certain state 

requirements for inclusion into the SIP 

under section 110(a) of the CAA and 

will not in-and-of itself create any new 

requirements. Accordingly, it does not 

provide EPA with the discretionary 


rmajette on DSK2TPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / Proposed Rules 40235 

1The ANPRM public comment period originally 

closed on July 29, 2008, but was reopened until 

December 15, 2008 (see notice, 73 FR 46912, Aug. 

12, 2008). Two public meetings were held in 

Seattle, WA, Nov. 21 and 22, 2008. 

authority to address, as appropriate, 

disproportionate human health or 

environmental effects, using practicable 

and legally permissible methods, under 

Executive Order 12898. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Incorporation by reference, 

Nitrogen dioxide, Ozone, Sulfur 

dioxide, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: June 13, 2016. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2016–14523 Filed 6–20–16; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Part 28 

[Docket No. USCG–2003–16158] 

RIN 1625–AA77 

Commercial Fishing Industry Vessels 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of withdrawal of advance 

notice of proposed rulemaking. 

SUMMARY: The Coast Guard announces 

the withdrawal of this regulatory 

project, which involved possible 

amendments to Coast Guard regulations 

affecting uninspected United States 

commercial fishing, fish processing, and 

fish tender vessels. The possible 

amendments involved vessel stability 

and watertight integrity, risk awareness 

and minimization, personnel instruction 

and drill requirements, safety and 

survival equipment, and compliance 

documentation. Withdrawal of this 

regulatory project will allow the Coast 

Guard to focus on a new rulemaking 

project implementing 2010 and 2012 

legislation that affects the commercial 

fishing industry. 

DATES: The advance notice of proposed 

rulemaking on Commercial Fishing 

Industry Vessels, published on March 

31, 2008, at 73 FR 16815, is withdrawn 

as of June 21, 2016. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice, call 

or email Mr. Jack Kemerer, Chief, 

Fishing Vessel Safety Division (CG– 

CVC–3), Office of Vessel Activities (CG– 

CVC); telephone 202–372–1249, email 

Jack.A.Kemerer@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

Discussion 

This is one of two Coast Guard 

publications that appear in today’s 

Federal Register and that address 

uninspected commercial fishing 

industry vessels (CFVs). 

• This document, announcing the 

withdrawal of an older rulemaking 

project that we began prior to 2010. 

• A notice of proposed rulemaking 

(NPRM) for a newer rulemaking project, 

implementing the 2010 and 2012 

statutory mandates. 

We opened this older project in 2002. 

Its purpose was to improve safety in the 

commercial fishing industry, which 

remains one of the most hazardous 

occupations in the United States. As we 

discussed in our March 31, 2008, 

advance notice of proposed rulemaking 

(ANPRM; 73 FR 16815),1 although 

existing Coast Guard regulations had 

resulted in improved safety on CFVs, 

the improvements in safety had leveled 

off and we concluded that additional 

regulatory action was needed to achieve 

further fatality and vessel loss 

reductions. We further concluded that 

safety could be improved significantly 

through new regulations for vessel 

stability and watertight integrity, risk 

awareness and minimization, personnel 

instruction and drill requirements, 

safety and survival equipment, and 

compliance documentation. 

Public comments on our withdrawal 

of the older project are welcome, but 

should be submitted to the docket for 

the newer project. In particular, we 

encourage comments on whether any of 

the regulatory ideas discussed in our 

March 31, 2008 ANPRM (73 FR 16815) 

should be the subject of future Coast 

Guard regulatory action. Please see Part 

I of the new NPRM’s preamble for 

information on how to submit 

comments, and see Part VI of that 

preamble for a discussion of the 

comments we received on the ANPRM. 

Legislation enacted in 2010 and 2012 

has provided the Coast Guard with 

additional regulatory authority over 

CFVs. The new legislation appears in 

Title VI of the Coast Guard 

Authorization Act of 2010, Pubic Law 

111–281, 124 Stat. 2959 and in sections 

303 and 305 of the Coast Guard and 

Maritime Transportation Act of 2012, 

Public Law 112–213, 126 Stat. 1563– 

1534. The new legislation significantly 

changes the Coast Guard’s regulatory 

authority over CFVs and mandates some 

safety provisions that were proposed in 

this older project. For example, the new 

legislation— 

• Mandates new equipment 

requirements for many vessels, or 

extends existing requirements to wider 

vessel populations; 

• Extends Coast Guard authority over 

Aleutian Trade fish tenders and CFVs 

that operate more than 3 nautical miles 

offshore or that carry more than 16 

individuals onboard—the vessels 

regulated under 46 CFR part 28, subpart 

C; 

• Requires the Coast Guard to 

conduct periodic mandatory dockside 

examinations of vessels regulated under 

subpart C; 

• Requires new-built, smaller CFVs 

regulated under subpart C to meet 

recreational vessel safety standards; 

• Requires CFVs regulated under 

subpart C to document maintenance, 

instruction, and drills; 

• Requires new-built, larger, CFVs to 

meet loadline and vessel classification 

requirements, and phases in alternate 

safety compliance requirements for 

older, larger CFVs; and 

• Expands the Coast Guard’s 

authority to terminate a vessel’s 

operation under unsafe conditions. 

These requirements are discussed at 

greater length in the newer project’s 

NPRM. We have decided to focus our 

regulatory attention on the effective 

implementation of the 2010 and 2012 

legislation, and we therefore withdraw 

this older project. This notice is issued 

under the authority of 5 U.S.C. 552. 

Dated: June 10, 2016. 

Paul F. Zukunft, 

Admiral, U.S. Coast Guard, Commandant. 

[FR Doc. 2016–14400 Filed 6–20–16; 8:45 am] 

BILLING CODE 9110–04–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 54 

[WC Docket Nos. 10–90, 14–58, 14–259; FCC 

16–64] 

Connect America Fund, ETC Annual 

Reports and Certification, Rural 

Broadband Experiments 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) seeks comment on several 

specific procedures that will apply in 

the Phase II auction. Pursuant to the 

Commission’s existing rules for 


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