2230 Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Rules and Regulations 

Division, U.S. Department of Labor, and 

includes any official of the Wage and 

Hour Division who is authorized by the 

Administrator to perform any of the 

functions of the Administrator under 

this part. 

* * * * * 

PART 580—CIVIL MONEY 

PENALTIES—PROCEDURES FOR 

ASSESSING AND CONTESTING 

PENALTIES 

■ 74. The authority citation for part 580 

is revised to read as follows: 

Authority: 29 U.S.C. 9a, 203, 209, 211, 

212, 213(c), 216; Reorg. Plan No. 6 of 1950, 

64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 

Stat. 72, 76; Secretary’s Order 01–2014 (Dec. 

19, 2014), 79 FR 77527 (Dec. 24, 2014); 5 

U.S.C. 500, 503, 551, 559; 103 Stat. 938. 

■ 75. In § 580.1, revise the definition of 

‘‘Administrator’’ to read as follows: 

§ 580.1 Definitions. 

* * * * * 

Administrator means the 

Administrator of the Wage and Hour 

Division, U.S. Department of Labor, and 

includes any official of the Wage and 

Hour Division authorized by the 

Administrator to perform any of the 

functions of the Administrator under 

this part and parts 578 and 579 of this 

chapter. 

* * * * * 

PART 801—APPLICATION OF THE 

EMPLOYEE POLYGRAPH 

PROTECTION ACT OF 1988 

■ 76. The authority citation for part 801 

continues to read as follows: 

Authority: Pub. L. 100–347, 102 Stat. 646, 

29 U.S.C. 2001–2009; 28 U.S.C. 2461 note 

(Federal Civil Penalties Inflation Adjustment 

Act of 1990); Pub. L. 114–74 at § 701, 129 

Stat. 584. 

■ 77. In § 801.2: 

■ a. Remove paragraph (h); 

■ b. Redesignate paragraphs (i) and (j) as 

paragraphs (h) and (i), respectively; and 

■ c. Revise newly redesignated 

paragraph (h). 

The revision reads as follows: 

§ 801.2 Definitions. 

* * * * * 

(h) Wage and Hour Division means 

the organizational unit of the 

Department of Labor to which is 

assigned primary responsibility for 

enforcement and administration of the 

Act. 

* * * * * 

■ 78. In § 801.7, revise paragraph (d) to 

read as follows: 

§ 801.7 Authority of the Secretary. 

* * * * * 

(d) Any person may report a violation 

of the Act or these regulations to the 

Secretary by advising any local office of 

the Wage and Hour Division, U.S. 

Department of Labor, or any authorized 

representative of the Administrator. The 

office or person receiving such a report 

shall refer it to the appropriate office of 

the Wage and Hour Division for the 

region or area in which the reported 

violation is alleged to have occurred. 

* * * * * 

■ 79. In § 801.30, revise the 

parenthetical at the end of section to 

read as follows: 

§ 801.30 Records to be preserved for 3 

years. 

* * * * * 

(Approved by the Office of Management and 

Budget under control number 1235–0005.) 

PART 825—THE FAMILY AND 

MEDICAL LEAVE ACT OF 1993 

■ 80. The authority citation for part 525 

continues to read as follows: 

Authority: 29 U.S.C. 2654; 28 U.S.C. 2461 

Note (Federal Civil Penalties Inflation 

Adjustment Act of 1990); and Pub. L. 114– 

74 at § 701. 

■ 81. In § 825.104, revise paragraph (b) 

to read as follows: 

§ 825.104 Covered employer. 

* * * * * 

(b) The terms commerce and industry 

affecting commerce are defined in 

accordance with section 501(1) and (3) 

of the Labor Management Relations Act 

of 1947 (LMRA) (29 U.S.C. 142(1) and 

(3)), as set forth in the definitions at 

§ 825.102 of this part. For purposes of 

the FMLA, employers who meet the 50- 

employee coverage test are deemed to be 

engaged in commerce or in an industry 

or activity affecting commerce. 

* * * * * 

■ 82. In § 825.209, revise paragraph (a) 

to read as follows: 

§ 825.209 Maintenance of employee 

benefits. 

(a) During any FMLA leave, an 

employer must maintain the employee’s 

coverage under any group health plan 

(as defined in the Internal Revenue 

Code of 1986 at 26 U.S.C. 5000(b)(1) on 

the same conditions as coverage would 

have been provided if the employee had 

been continuously employed during the 

entire leave period. All employers 

covered by FMLA, including public 

agencies, are subject to the Act’s 

requirements to maintain health 

coverage. The definition of group health 

plan is set forth in § 825.102. For 

purposes of FMLA, the term group 

health plan shall not include an 

insurance program providing health 

coverage under which employees 

purchase individual policies from 

insurers provided that: 

(1) No contributions are made by the 

employer; 

(2) Participation in the program is 

completely voluntary for employees; 

(3) The sole functions of the employer 

with respect to the program are, without 

endorsing the program, to permit the 

insurer to publicize the program to 

employees, to collect premiums through 

payroll deductions and to remit them to 

the insurer; 

(4) The employer receives no 

consideration in the form of cash or 

otherwise in connection with the 

program, other than reasonable 

compensation, excluding any profit, for 

administrative services actually 

rendered in connection with payroll 

deduction; and, 

(5) The premium charged with respect 

to such coverage does not increase in 

the event the employment relationship 

terminates. 

* * * * * 

■ 83. In § 825.401, revise paragraph (a) 

to read as follows: 

§ 825.401 Filing a complaint with the 

Federal Government. 

(a) A complaint may be filed in 

person, by mail or by telephone, with 

the Wage and Hour Division, U.S. 

Department of Labor. A complaint may 

be filed at any local office of the Wage 

and Hour Division; the address and 

telephone number of local offices may 

be found in telephone directories or on 

the Department’s Web site. 

* * * * * 

[FR Doc. 2016–31293 Filed 1–6–17; 8:45 am] 

BILLING CODE 4510–27–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 22 and 124 

[FRL–9956–53–OARM] 

Consolidated Rules of Practice 

Governing the Administrative 

Assessment of Civil Penalties, 

Issuance of Compliance or Corrective 

Action Orders, and the Revocation/ 

Termination or Suspension of Permits; 

Procedures for Decisionmaking 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Environmental Protection Agency’s 

(‘‘EPA’’) Consolidated Rules of Practice 

governing the administrative assessment 


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of civil penalties and various other 

administrative adjudicatory hearings. 

These revisions simplify the 

administrative processing of cases by 

removing inconsistencies, codifying 

electronic filing and service procedures, 

and streamlining the procedures in 

cases initiated at EPA Headquarters. 

This rule also corrects some 

punctuation typographical errors found 

in the Consolidated Rules of Practice. 

This rule similarly revises EPA’s 

procedures governing decisionmaking 

in permit appeals. These amendments 

are procedural in nature and none of 

these changes are intended to 

substantively alter the Agency’s 

administrative enforcement actions or 

review of permit appeals. 

DATES: This rule is effective on March 

10, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Michael B. Wright, Office of 

Administrative Law Judges, U.S. 

Environmental Protection Agency, 

Ronald Reagan Building, Room M1200, 

1300 Pennsylvania Ave. NW., 

Washington, DC 20004, phone number 

(202) 564–3247 or by email at 

wright.michaelb@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Why is the EPA issuing this rule in 

final form without first issuing a 

proposal? 

Today’s final rule is limited to 

procedural requirements for 

administrative adjudicatory hearings 

and appeals from such hearings and 

from permit decisions. Under the 

Administrative Procedure Act, an 

agency may issue ‘‘rules of agency 

organization, procedure, or practice’’ 

without first proposing such rules for 

public comment. 5 U.S.C. 553(b). 

Accordingly, public comment is not 

required. 

II. Does this action apply to me? 

This action affects parties involved in 

EPA administrative adjudicatory 

proceedings for the assessment of civil 

penalties, issuance of various 

compliance orders, and termination or 

suspension of certain permits, under 

part 22 of title 40 of the CFR. See 40 

CFR 22.1. This action also affects parties 

involved in appeal of EPA permits 

under part 124 of title 40 of the CFR. 

III. Summary of Rule 

A. Background: The EPA’s Consolidated 

Rules of Practice in Part 22 and the 

EPA’s Rules for Procedures for 

Decisionmaking on Permits in Part 124 

Part 22 of Title 40 of the CFR 

establishes procedures governing 

administrative adjudicatory proceedings 

to assess administrative civil penalties, 

to issue various compliance orders, and 

to terminate or suspend certain permits. 

40 CFR 22.1. These proceedings are 

conducted under a variety of 

environmental statutes, including the 

Clean Air Act, the Clean Water Act, the 

Solid Waste Disposal Act, and the 

Federal Insecticide, Fungicide, and 

Rodenticide Act, among others. Such 

cases are generally heard by the 

Administrative Law Judges (ALJs) 

within the EPA’s Office of 

Administrative Law Judges or Regional 

Judicial Officers. The part 22 regulations 

are titled the ‘‘Consolidated Rules of 

Practice Governing the Administrative 

Assessment of Civil Penalties, Issuance 

of Compliance or Corrective Action 

Orders, and the Revocation/Termination 

or Suspension of Permits’’ (‘‘Rules of 

Practice’’). 

The EPA promulgated the Rules of 

Practice to establish uniform procedural 

rules for administrative proceedings 

required to be held on the record after 

opportunity for a hearing in accordance 

with section 554 of the Administrative 

Procedure Act, 5 U.S.C. 551 et seq., see 

40 CFR part 22, subparts A–G, and 

administrative enforcement proceedings 

not governed by section 554, id. part 22, 

subpart I. Consolidated Rules of 

Practice, 45 FR 24360 (Apr. 9, 1980). 

The Rules of Practice also establish 

supplementary rules that recognize the 

unique procedural requirements of 

certain environmental statutes within 

the EPA’s jurisdiction. See 40 CFR part 

22, subpart H. Finally, the Rules of 

Practice establish procedures for 

appeals from decisions of the ALJs and 

Regional Judicial Officers to the 

Environmental Appeals Board. See id. 

part 22, subpart F. 

Part 124 of Title 40 of the CFR 

establishes rules governing the EPA’s 

issuance, modification, and revocation 

of permits under the Resource 

Conservation and Recovery Act, the 

Underground Injection Control program 

of the Safe Drinking Water Act, the 

Prevention of Significant Deterioration 

program of the Clean Air Act, and the 

National Pollutant Discharge 

Elimination System program of the 

Clean Water Act. These permit rules 

include procedures for appealing permit 

decisions by the EPA’s regional offices 

to the Environmental Appeals Board. 

See 40 CFR 124.19. 

B. Amendments to Part 22 Procedures 

This action makes several minor 

changes to part 22 procedures. Many of 

these changes pertain to the electronic 

filing and service of documents. 

Filing and service. The EPA has 

amended the filing and service 

requirements to clarify how these 

requirements apply to electronic 

transmission of documents and to 

otherwise clarify filing and service 

requirements and make them more 

consistent with similar requirements in 

part 124. 

Section 22.5(a) currently allows a 

Presiding Officer or the Environmental 

Appeals Board to ‘‘authorize’’ filing of 

documents by ‘‘facsimile or electronic 

filing.’’ 40 CFR 22.5(a). The EPA is 

amending this section to also allow a 

Presiding Officer or the Environmental 

Appeals Board to ‘‘require’’ filing by 

‘‘facsimile or an electronic filing 

system.’’ Both the Office of the 

Administrative Law Judges and the 

Environmental Appeals Board have an 

operational electronic filing system. 

This section is also being amended to 

standardize the Environmental Appeals 

Board filing methods under part 22 with 

those currently in the EPA’s permit 

regulations in part 124. 

Section 22.5(b)(2) is modified to allow 

parties to agree with other parties to 

service by facsimile or other electronic 

means, including but not necessarily 

limited to email. A party’s consent to 

such methods of service must be in 

writing and the party must file 

acknowledgement of such consent with 

the Clerk for the Presiding Officer or the 

Environmental Appeals Board, 

whichever is appropriate. This section 

is also modified to allow the Presiding 

Officer or the Environmental Appeals 

Board to authorize or require that the 

parties serve each other by facsimile or 

other electronic means, including but 

not necessarily limited to email. To 

facilitate electronic service, § 22.5(b)(4) 

is modified to require that a party 

include an email address in the first 

document it files in a proceeding. 

The EPA emphasizes that the rules on 

electronic delivery of documents differ 

depending on whether the document is 

being filed with an EPA adjudicatory 

tribunal or served on a party to the 

proceeding. In the case of filing a 

document in an EPA administrative 

proceeding, the Presiding Officer or the 

Environmental Appeals Board has the 

sole authority to authorize or require 

electronic filing, and only these entities 

may authorize or require electronic 

filing by facsimile or an electronic filing 

system. As to service of documents 

between parties, not only may the 

Presiding Officer or the Environmental 

Appeals Board authorize or require 

service by either facsimile or other 

electronic means, including but not 

necessarily limited to email, but the 

parties may agree to such forms of 

electronic service. 


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1EPA has specifically included ‘‘EPA internal 

mail’’ in this revision to the mailbox rule because 

the Environmental Appeals Board previously ruled 

that a prior version of this provision referencing 

‘‘certified mail’’ did not cover a document served 

by EPA internal mail. In re Outboard Marine Corp., 

6 E.A.D. 194, 197 (EAB 1995). 

Additionally, the EPA is revising 

§ 22.5(b) to clarify that in cases before 

the Environmental Appeals Board, 

documents a party files with the Board 

need not also be served on the Board. 

Section 22.6 is amended to allow the 

Regional Hearing Clerk, the 

Headquarters Hearing Clerk, or the Clerk 

of the Environmental Appeals Board to 

serve rulings, orders, decisions, or other 

documents by electronic means 

(including but not necessarily limited to 

facsimile and email). 

Section 22.7(c) addresses when 

service is considered complete and 

includes a provision allowing an 

additional period of time for response to 

documents served using certain 

procedures. Id. § 22.7(c). The EPA has 

amended this section to specify that 

when documents are served by facsimile 

or other electronic means, the service 

will be complete upon transmission. 

This approach is similar to that in Rule 

5(b) of the Federal Rules of Civil 

Procedure. Fed. R. Civ. P. 5(b). 

The EPA has also modified the socalled ‘‘mailbox rule’’ in § 22.7(c) 

providing for additional days to respond 

to documents served using certain 

procedures. As modified, the revised 

mailbox rule in § 22.7(c) allows an 

additional three days to the time 

allowed for response to documents 

served by U.S. mail, the EPA’s internal 

mail,1 or commercial delivery service. 

Three additional days are not allowed 

for a response when a document to be 

responded to is served by personal 

delivery or electronic means (e.g., 

facsimile or email). This change allows 

additional days where needed, but 

recognizes that extra days for delivery 

are not needed where same-day delivery 

is utilized. Further, this change makes 

part 22 consistent with the Federal 

Rules of Civil Procedure, including 

changes made to the Rules effective 

December 1, 2016. Rule 6(d) of the 

Federal Rules of Civil Procedure 

currently grants an additional three days 

when service is effectuated by U.S. mail, 

an agreed-to delivery service, or an 

electronic means. However, an 

amendment to Rule 6(d) that was 

effective December 1, 2016, removes 

electronic service from the types of 

service to which the additional threeday rule applies. Order (S. Ct. Apr. 28, 

2016). This change was based on the 

conclusion that electronic service has 

become sufficiently reliable method of 

providing instantaneous delivery. Fed. 

R. Civ. P. 6(d) advisory committee’s note 

to 2016 amendment. 

Presiding officer prior to respondent 

filing answer. Generally, the Presiding 

Officer in part 22 proceedings is an 

Administrative Law Judge except for 

proceedings under subpart I, which are 

not governed by section 554 of the 

Administrative Procedure Act. See 40 

CFR 22.3 (definition of ‘‘Presiding 

Officer’’) & subpart I. Regional Judicial 

Officers are the Presiding Officer under 

subpart I proceedings. Id. § 22.51. The 

Environmental Appeals Board hears 

appeals from interlocutory orders and 

initial decisions of a Presiding Officer. 

Id. § 22.29–22.30. 

However, sections 22.4(a) and 

22.16(c) currently specify, among other 

things, that the Environmental Appeals 

Board will act as Presiding Officer in 

proceedings under part 22 commenced 

at EPA Headquarters until the 

respondent files an answer. Id. 

§§ 22.4(a), 22.16(c). In such proceedings, 

an Administrative Law Judge replaces 

the Environmental Appeals Board as the 

Presiding Officer once an answer is 

filed. Id. § 22.16(c). 

This rule amendment modifies 

§ 22.4(a) and § 22.16(c) to authorize an 

Administrative Law Judge to serve as 

the Presiding Officer in part 22 

proceedings commenced at EPA 

Headquarters from the time a complaint 

is filed. The Environmental Appeals 

Board will no longer be assigned as a 

Presiding Officer for the period between 

the filing of a complaint and the filing 

of an answer. Rather, an Administrative 

Law Judge will serve as the Presiding 

Officer both prior to and after the filing 

of the answer. Removing the 

Environmental Appeals Board from the 

initial stage of enforcement proceedings 

will enhance the efficiency of 

proceedings commenced at EPA 

Headquarters because a single entity 

will exercise the role of Presiding 

Officer. This also eliminates the 

possibility that the Environmental 

Appeals Board could be asked to review 

on appeal its own decision on a 

preliminary motion (filed before an 

answer is filed). 

Other changes. Section 22.28 

addresses motions to reopen a hearing. 

This rule modifies § 22.28 to clarify the 

effect of filing such a motion and to 

expand the section to apply to motions 

to set aside a default order. The revised 

language clarifies that the filing of a 

motion to reopen a hearing tolls not 

only the time by when an initial 

decision becomes final or by when an 

appeal of an initial decision to the 

Environmental Appeals Board must be 

filed but also the time by which the 

Board must decide whether it is going 

to exercise its authority to hear the case 

on its own initiative. The revised 

language also applies similar 

requirements to a motion to set aside a 

default order. 

Additionally, the EPA is making a 

series of changes to § 22.30 to clarify 

various issues relating to appeals to the 

Environmental Appeals Board. See id. 

§ 22.30. Section 22.30 is modified to (1) 

explain how attachments to a notice of 

appeal, appellate brief, or response brief 

should be identified (§ 22.30(a)(1)(iii) 

and (2)); (2) impose word/page 

limitations for briefs and motions 

(§ 22.30(a)(3)); (3) provide more 

consistency between § 22.30(a)(1)(iii) 

and § 124.19(a)(4)(ii) pertaining to the 

need for parties’ briefs to contain 

specific citations or other appropriate 

references (e.g., by including the 

document name and page number) 

(§ 22.30(a)(1)(iii) and (2)); (4) clarify that 

when the Board initiates review of an 

initial decision, it will identify any 

issues to be briefed and a schedule for 

briefing in its initial order of its intent 

to review or in a subsequent order 

(§ 22.30(b)); (5) clarify that the Board 

may request oral argument on its own 

initiative, how a party must request oral 

argument, and that the Board may 

establish additional oral argument 

procedures by order (§ 22.30(d)); (6) 

make explicit that the Board may act on 

a motion without awaiting a response 

(§ 22.30(e)(2)); and (7) explain the 

procedure for parties to request an 

extension of time (§ 22.30(e)(3)). 

C. Amendments to Part 124 Procedures 

Most of the revisions to part 124 also 

concern filing and service issues. 

Section 124.19(i) addresses filing and 

service requirements in permit appeal 

proceedings before the Environmental 

Appeals Board. This section has been 

modified to add language clarifying 

when service is complete. Specifically, 

service is complete upon mailing for 

U.S. mail and EPA internal mail, when 

placed in the custody of a reliable 

commercial deliver service, or upon 

transmission for facsimile or email. This 

new language is similar to that in Rule 

5(b)(2) of the Federal Rules of Civil 

Procedure and Environmental Appeals 

Board decisions. Fed. R. Civ. P. 5(b)(2); 

see In re Beckman Prod. Servs., 5 E.A.D. 

10, 15 (EAB 1994) (‘‘When the Region 

serves a final permit decision by mail, 

service occurs upon mailing.’’). The 

EPA has revised the language in 

§ 124.19(i)(3) to clarify that parties may 

agree to electronic service by facsimile, 

email, or other electronic means. The 

EPA has also revised § 124.19(i)(3) to 

require that parties that consent to 


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service by electronic means file 

acknowledgement of that consent with 

the Environmental Appeals Board. 

The EPA has also made several 

changes to part 124 on service and filing 

that duplicate the changes made to part 

22: (1) Requiring that a party’s first 

filing contain an email address 

(§ 124.19(i)(3)(i)); (2) authorizing the 

Environmental Appeals Board to require 

that parties file documents by facsimile 

or through use of the Board’s electronic 

filing system (§ 124.19(i)(2)); (3) 

allowing the Environmental Appeals 

Board to authorize or require that the 

parties serve each other by facsimile or 

other electronic means, including email 

(§ 124.19(i)(3)(ii)); and (4) authorizing 

the Board to serve rulings, orders, and 

decisions on the parties by electronic 

means (including but not necessarily 

limited to facsimile and email). 

(§ 124.19(i)(3)(iii). 

Section 124.19(b)(1) and (2) are 

modified so that the deadlines for filing 

a response to a petition for review are 

based on the date the petition is served, 

rather than filed. This provides for 

appropriate notice of the petition for 

review in advance of the deadline for a 

response. 

Similar to the changes made in the 

mailbox rule in § 22.7(c), discussed 

above, the EPA has modified § 124.20(d) 

to specify that three days are added to 

a prescribed period of time to act when 

service is made by U.S. mail, the EPA’s 

internal mail, or a reliable, commercial 

delivery service. Three days are not 

added to the prescribed time to act 

when service is made by personal 

delivery or electronic transmission (e.g., 

facsimile or email). 

The EPA has also added word/page 

limitations to § 124.19(f) for motions 

mirroring the word/page limitations 

added to § 22.30. Finally, the EPA has 

amended § 124.19(a)(4)(ii) and (b) to 

further clarify that parties are to provide 

in their briefs appropriate reference to 

the administrative record (e.g., by 

including the document name and page 

number) as to each issue raised. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Orders 12866: Regulatory 

Planning and Review and 13563: 

Improving Regulation and Regulatory 

Review 

This action is exempt from review by 

the Office of Management and Budget 

(OMB) because it is limited to agency 

organization, management, or personnel 

matters. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

PRA. This action will modify the EPA’s 

procedural regulations governing 

administrative adjudicatory proceedings 

and appeals of adjudicatory proceedings 

and permit decisions to allow flexibility 

in the methods of serving and issuing 

documents and to promote efficiency in 

allocation of judicial resources. 

Specifically, the modifications to the 

Rules of Practice will codify the 

electronic service of documents between 

parties and by EPA adjudicative bodies. 

In addition, the modifications will 

facilitate the efficient issuance of rulings 

on motions by substituting an 

Administrative Law Judge for the 

Environmental Appeals Board to serve 

as the presiding officer in civil penalty 

cases initiated at EPA Headquarters 

before an answer is filed. 

C. Regulatory Flexibility Act 

This action is not subject to the RFA. 

The RFA applies only to rules subject to 

notice and comment rulemaking 

requirements under the Administrative 

Procedure Act (APA), 5 U.S.C. 553, or 

any other statute. This rule pertains to 

agency management or personnel, 

which the APA expressly exempts from 

notice and comment rulemaking 

requirements under 5 U.S.C. 553(a)(2). 

D. Unfunded Mandates Reform Act 

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. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effect on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175. This action will modify 

the EPA’s procedural regulations 

governing administrative adjudicatory 

proceedings and appeals of adjudicatory 

proceedings and permit decisions to 

allow flexibility in the methods of 

serving and issuing documents and to 

promote efficiency in allocation of 

judicial resources. Thus, Executive 

Order 13175 does not apply to this 

action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer 

Advancement Act 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this action does 

not have disproportionately high and 

adverse human health or environmental 

effects on minority populations, lowincome populations and/or indigenous 

peoples, as specified in Executive Order 

12898 (59 FR 7629, February 16, 1994). 

This action will modify the EPA’s 

procedural regulations governing 

administrative adjudicatory proceedings 

and appeals of adjudicatory proceedings 

and permit decisions to allow flexibility 

in the methods of serving and issuing 

documents and to promote efficiency in 

allocation of judicial resources. 

K. Congressional Review Act 

This rule is exempt from the CRA 

because it is a rule relating to agency 

management or personnel. 

List of Subjects 

40 CFR Part 22 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances, Hazardous waste, Penalties, 

Pesticides and pests, Poison prevention, 

Water pollution control. 

40 CFR Part 124 

Environmental protection, 

Administrative practice and procedures. 


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Dated: December 20, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons set out in the 

preamble, 40 CFR parts 22 and 124 are 

amended as follows: 

PART 22—CONSOLIDATED RULES OF 

PRACTICE GOVERNING THE 

ADMINISTRATIVE ASSESSMENT OF 

CIVIL PENALTIES AND THE 

REVOCATION/TERMINATION OR 

SUSPENSION OF PERMITS 

■ 1. The authority citation for part 22 is 

revised to read as follows: 

Authority: 7 U.S.C. 1361; 15 U.S.C. 2615; 

33 U.S.C. 1319, 1342, 1361, 1415 and 1418; 

42 U.S.C. 300g–3(g), 6912, 6925, 6928, 6991e 

and 6992d; 42 U.S.C. 7413(d), 7524(c), 

7545(d), 7547, 7601 and 7607(a), 9609, and 

11045. 

Subpart A—General 

■ 2. In § 22.4, revise the first sentence of 

paragraph (a)(1) to read as follows: 

§ 22.4 Powers and duties of the 

Environmental Appeals Board, Regional 

Judicial Officer and Presiding Officer; 

disqualification, withdrawal, and 

reassignment. 

(a) Environmental Appeals Board. (1) 

The Environmental Appeals Board rules 

on appeals from the initial decisions, 

rulings and orders of a Presiding Officer 

in proceedings under these 

Consolidated Rules of Practice, and 

approves settlement of proceedings 

under these Consolidated Rules of 

Practice commenced at EPA 

Headquarters. * * * 

* * * * * 

■ 3. In § 22.5, revise the section heading 

and paragraphs (a)(1), (b) introductory 

text, (b)(2), and (c)(4) to read as follows: 

§ 22.5 Filing, service by the parties, and 

form of all filed documents; business 

confidentiality claims. 

(a) Filing of documents. (1) The 

original and one copy of each document 

intended to be part of the record shall 

be filed with the Headquarters or 

Regional Hearing Clerk, as appropriate, 

when the proceeding is before the 

Presiding Officer, or filed with the Clerk 

of the Board when the proceeding is 

before the Environmental Appeals 

Board. A document is filed when it is 

received by the appropriate Clerk. When 

a document is required to be filed with 

the Environmental Appeals Board, the 

document shall be sent to the Clerk of 

the Board by U.S. Mail, delivered by 

hand or courier (including delivery by 

U.S. Express Mail or by a commercial 

delivery service), or transmitted by the 

Environmental Appeal Board’s 

electronic filing system, according to the 

procedures specified in 40 CFR 124.19 

(i)(2)(i), (ii), and (iii). The Presiding 

Officer or the Environmental Appeals 

Board may by order authorize or require 

filing by facsimile or an electronic filing 

system, subject to any appropriate 

conditions and limitations. 

* * * * * 

(b) Service of documents. Unless the 

proceeding is before the Environmental 

Appeals Board, a copy of each 

document filed in the proceeding shall 

be served on the Presiding Officer and 

on each party. In a proceeding before 

the Environmental Appeals Board, a 

copy of each document filed in the 

proceeding shall be served on each 

party. 

* * * * * 

(2) Service of filed documents other 

than the complaint, rulings, orders, and 

decisions. All documents filed by a 

party other than the complaint, rulings, 

orders, and decisions shall be served by 

the filing party on all other parties. 

Service may be made personally, by 

U.S. mail (including certified mail, 

return receipt requested, Overnight 

Express and Priority Mail), by any 

reliable commercial delivery service, or 

by facsimile or other electronic means, 

including but not necessarily limited to 

email, if service by such electronic 

means is consented to in writing. A 

party who consents to service by 

facsimile or email must file an 

acknowledgement of its consent 

(identifying the type of electronic means 

agreed to and the electronic address to 

be used) with the appropriate Clerk. In 

addition, the Presiding Officer or the 

Environmental Appeals Board may by 

order authorize or require service by 

facsimile, email, or other electronic 

means, subject to any appropriate 

conditions and limitations. 

(c) * * * 

(4) The first document filed by any 

person shall contain the name, mailing 

address, telephone number, and email 

address of an individual authorized to 

receive service relating to the 

proceeding on behalf of the person. 

Parties shall promptly file any changes 

in this information with the 

Headquarters or Regional Hearing Clerk 

or the Clerk of the Board, as appropriate, 

and serve copies on the Presiding 

Officer and all parties to the proceeding. 

If a party fails to furnish such 

information and any changes thereto, 

service to the party’s last known address 

shall satisfy the requirements of 

paragraph (b)(2) of this section and 

§ 22.6. 

* * * * * 

■ 4. Revise § 22.6 to read as follows: 

§ 22.6 Filing and service of rulings, orders 

and decisions. 

All rulings, orders, decisions, and 

other documents issued by the Regional 

Administrator or Presiding Officer shall 

be filed with the Headquarters or 

Regional Hearing Clerk, as appropriate, 

in any manner allowed for the service 

of such documents. All rulings, orders, 

decisions, and other documents issued 

by the Environmental Appeals Board 

shall be filed with the Clerk of the 

Board. The Clerk of the Board, the 

Headquarters Hearing Clerk, or the 

Regional Hearing Clerk, as appropriate, 

must serve copies of such rulings, 

orders, decisions and other documents 

on all parties. Service may be made by 

U.S. mail (including by certified mail or 

return receipt requested, Overnight 

Express and Priority Mail), EPA’s 

internal mail, any reliable commercial 

delivery service, or electronic means 

(including but not necessarily limited to 

facsimile and email). 

■ 5. In § 22.7, revise paragraph (c) to 

read as follows: 

§ 22.7 Computation and extension of time. 

* * * * * 

(c) Completion of service. Service of 

the complaint is complete when the 

return receipt is signed. Service of all 

other documents is complete upon 

mailing, when placed in the custody of 

a reliable commercial delivery service, 

or for facsimile or other electronic 

means, including but not necessarily 

limited to email, upon transmission. 

Where a document is served by U.S. 

mail, EPA internal mail, or commercial 

delivery service, including overnight or 

same-day delivery, 3 days shall be 

added to the time allowed by these 

Consolidated Rules of Practice for the 

filing of a responsive document. The 

time allowed for the serving of a 

responsive document is not expanded 

by 3 days when the served document is 

served by personal delivery, facsimile, 

or other electronic means, including but 

not necessarily limited to email. 

Subpart C—Prehearing Procedures 

■ 6. In § 22.16, revise paragraph (c) to 

read as follows: 

§ 22.16 Motions. 

* * * * * 

(c) Decision. The Regional Judicial 

Officer (or in a proceeding commenced 

at EPA Headquarters, an Administrative 

Law Judge) shall rule on all motions 

filed or made before an answer to the 

complaint is filed. Except as provided in 

§§ 22.29(c) and 22.51, an Administrative 

Law Judge shall rule on all motions filed 

or made after an answer is filed and 


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before an initial decision becomes final 

or has been appealed. The 

Environmental Appeals Board shall rule 

as provided in § 22.29(c) and on all 

motions filed or made after an appeal of 

the initial decision is filed, except as 

provided pursuant to § 22.28. 

■ 7. Revise the subpart E heading to 

read as follows: 

Subpart E—Initial Decision, Motion To 

Reopen a Hearing, and Motion To Set 

Aside a Default Order 

■ 8. Revise § 22.28 to read as follows: 

§ 22.28 Motion to reopen a hearing or to 

set aside a default order. 

(a) Motion to reopen a hearing—(1) 

Filing and content. A motion to reopen 

a hearing to take further evidence must 

be filed no later than 20 days after 

service of the initial decision and shall 

state the specific grounds upon which 

relief is sought. Where the movant seeks 

to introduce new evidence, the motion 

shall: State briefly the nature and 

purpose of the evidence to be adduced; 

show that such evidence is not 

cumulative; and show good cause why 

such evidence was not adduced at the 

hearing. The motion shall be made to 

the Presiding Officer and filed with the 

Headquarters or Regional Hearing Clerk, 

as appropriate. A copy of the motion 

shall be filed with the Clerk of the Board 

in the manner prescribed by § 22.5(a)(1). 

(2) Disposition of motion to reopen a 

hearing. Within 15 days following the 

service of a motion to reopen a hearing, 

any other party to the proceeding may 

file with the Headquarters or Regional 

Hearing Clerk, as appropriate, and serve 

on all other parties a response. A 

reopened hearing shall be governed by 

the applicable sections of these 

Consolidated Rules of Practice. The 

timely filing of a motion to reopen a 

hearing shall automatically toll the 

running of the time periods for an initial 

decision becoming final under 

§ 22.27(c), for appeal under § 22.30, and 

for the Environmental Appeals Board to 

elect to review the initial decision on its 

own initiative pursuant to § 22.30(b). 

These time periods begin again in full 

when the Presiding Officer serves an 

order denying the motion to reopen the 

hearing or an amended decision. The 

Presiding Officer may summarily deny 

subsequent motions to reopen a hearing 

filed by the same party if the Presiding 

Officer determines that the motion was 

filed to delay the finality of the 

decision. 

(b) Motion to set aside default order— 

(1) Filing and content. A motion to set 

aside a default order must be filed no 

later than 20 days after service of the 

initial decision and shall state the 

specific grounds upon which relief is 

sought. The motion shall be made to the 

Presiding Officer and filed with the 

Headquarters or Regional Hearing Clerk, 

as appropriate. A copy of the motion 

shall be filed with the Clerk of the Board 

in the manner prescribed by § 22.5(a)(1). 

(2) Effect of motion to set aside 

default. The timely filing of a motion to 

set aside a default order automatically 

tolls the running of the time periods for 

an initial decision becoming final under 

§ 22.27(c), for appeal under § 22.30(a), 

and for the Environmental Appeals 

Board to elect to review the initial 

decision on its own initiative pursuant 

to § 22.30(b). These time periods begin 

again in full when the Presiding Officer 

serves an order denying the motion to 

set aside or an amended decision. The 

Presiding Officer may summarily deny 

subsequent motions to set aside a 

default order filed by the same party if 

the Presiding Officer determines that the 

motion was filed to delay the finality of 

the decision. 

Subpart F—Appeals and 

Administrative Review 

■ 9. In § 22.30, revise paragraphs (a), (b), 

(c), (d), and (e) to read as follows: 

§ 22.30 Appeal from or review of initial 

decision. 

(a) Notice of appeal and appeal 

brief—(1) Filing an appeal—(i) Filing 

deadline and who may appeal. Within 

30 days after the initial decision is 

served, any party may file an appeal 

from any adverse order or ruling of the 

Presiding Officer. 

(ii) Filing requirements. Appellant 

must file a notice of appeal and an 

accompanying appellate brief with the 

Environmental Appeals Board as set 

forth in § 22.5(a). One copy of any 

document filed with the Clerk of the 

Board shall also be served on the 

Headquarters or Regional Hearing Clerk, 

as appropriate. Appellant also shall 

serve a copy of the notice of appeal 

upon the Presiding Officer. Appellant 

shall simultaneously serve one copy of 

the notice and brief upon all other 

parties and non-party participants. 

(iii) Content. The notice of appeal 

shall summarize the order or ruling, or 

part thereof, appealed from. The 

appellant’s brief shall contain tables of 

contents and authorities (with 

appropriate page references), a 

statement of the issues presented for 

review, a statement of the nature of the 

case and the facts relevant to the issues 

presented for review (with specific 

citation or other appropriate reference to 

the record (e.g., by including the 

document name and page number)), 

argument on the issues presented, a 

short conclusion stating the precise 

relief sought, alternative findings of fact, 

and alternative conclusions regarding 

issues of law or discretion. If any 

appellant includes attachments to its 

notice of appeal or appellate brief, the 

notice of appeal or appellate brief shall 

contain a table that provides the title of 

each appended document and assigns a 

label identifying where it may be found 

in the record. 

(iv) Multiple appeals. If a timely 

notice of appeal is filed by a party, any 

other party may file a notice of appeal 

and accompanying appellate brief on 

any issue within 20 days after the date 

on which the first notice of appeal was 

served or within the time to appeal in 

paragraph (a)(1)(i) of this section, 

whichever period ends later. 

(2) Response brief. Within 20 days of 

service of notices of appeal and briefs 

under paragraph (a)(1) of this section, 

any other party or non-party participant 

may file with the Environmental 

Appeals Board an original and one copy 

of a response brief responding to 

arguments raised by the appellant, 

together with specific citation or other 

appropriate reference to the record, 

initial decision, and opposing brief (e.g., 

by including the document name and 

page number). Appellee shall 

simultaneously serve one copy of the 

response brief upon each party, nonparty participant, and the Regional 

Hearing Clerk. Response briefs shall be 

limited to the scope of the appeal brief. 

If any responding party or non-party 

participant includes attachments to its 

response brief, the response brief shall 

contain a table that provides the title of 

each appended document and assigns a 

label identifying where it may be found 

in the record. Further briefs may be filed 

only with leave of the Environmental 

Appeals Board. 

(3) Length—(i) Briefs. Unless 

otherwise ordered by the Environmental 

Appeals Board, appellate and response 

briefs may not exceed 14,000 words, 

and all other briefs may not exceed 7000 

words. Filers may rely on the wordprocessing system used to determine the 

word count. As an alternative to this 

word limitation, filers may comply with 

a 30-page limit for appellate and 

response briefs, or a 15-page limit for 

replies. Headings, footnotes, and 

quotations count toward the word 

limitation. The table of contents, table of 

authorities, table of attachments (if any), 

statement requesting oral argument (if 

any), statement of compliance with the 

word limitation, and any attachments 

do not count toward the word or pagelength limitation. The Environmental 


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2236 Federal Register / Vol. 82, No. 5 / Monday, January 9, 2017 / Rules and Regulations 

Appeals Board may exclude any appeal, 

response, or other brief that does not 

meet word or page-length limitations. 

Where a party can demonstrate a 

compelling and documented need to 

exceed such limitations, such party 

must seek advance leave of the 

Environmental Appeals Board to file a 

longer brief. Such requests are 

discouraged and will be granted only in 

unusual circumstances. 

(ii) Motions. Unless otherwise ordered 

by the Environmental Appeals Board, 

motions and any responses or replies 

may not exceed 7000 words. Filers may 

rely on the word-processing system 

used to determine the word count. As 

an alternative to this word limitation, 

filers may comply with a 15-page limit. 

Headings, footnotes, and quotations 

count toward the word or page-length 

limitation. The Environmental Appeals 

Board may exclude any motion that 

does not meet word limitations. Where 

a party can demonstrate a compelling 

and documented need to exceed such 

limitations, such party must seek 

advance leave of the Environmental 

Appeals Board. Such requests are 

discouraged and will be granted only in 

unusual circumstances. 

(b) Review initiated by the 

Environmental Appeals Board. 

Whenever the Environmental Appeals 

Board determines to review an initial 

decision on its own initiative, it shall 

issue an order notifying the parties and 

the Presiding Officer of its intent to 

review that decision. The Clerk of the 

Board shall serve the order upon the 

Regional Hearing Clerk, the Presiding 

Officer, and the parties within 45 days 

after the initial decision was served 

upon the parties. In that order or in a 

later order, the Environmental Appeals 

Board shall identify any issues to be 

briefed by the parties and establish a 

time schedule for filing and service of 

briefs. 

(c) Scope of appeal or review. The 

parties’ rights of appeal shall be limited 

to those issues raised during the course 

of the proceeding and by the initial 

decision, and to issues concerning 

subject matter jurisdiction. If the 

Environmental Appeals Board 

determines that issues raised, but not 

appealed by the parties, should be 

argued, it shall give the parties written 

notice of such determination to allow 

preparation of adequate argument. The 

Environmental Appeals Board may 

remand the case to the Presiding Officer 

for further proceedings. 

(d) Argument before the 

Environmental Appeals Board. The 

Environmental Appeals Board may, at 

its discretion in response to a request or 

on its own initiative, order oral 

argument on any or all issues in a 

proceeding. To request oral argument, a 

party must include in its substantive 

brief a statement explaining why oral 

argument is necessary. The 

Environmental Appeals Board may, by 

order, establish additional procedures 

governing any oral argument before the 

Environmental Appeals Board. 

(e) Motions on appeal—(1) General. 

All motions made during the course of 

an appeal shall conform to § 22.16 

unless otherwise provided. In advance 

of filing a motion, parties must attempt 

to ascertain whether the other party(ies) 

concur(s) or object(s) to the motion and 

must indicate in the motion the attempt 

made and the response obtained. 

(2) Disposition of a motion for a 

procedural order. The Environmental 

Appeals Board may act on a motion for 

a procedural order at any time without 

awaiting a response. 

(3) Timing on motions for extension of 

time. Parties must file motions for 

extensions of time sufficiently in 

advance of the due date to allow other 

parties to have a reasonable opportunity 

to respond to the request for more time 

and to provide the Environmental 

Appeals Board with a reasonable 

opportunity to issue an order. 

* * * * * 

PART 124—PROCEDURES FOR 

DECISIONMAKING 

■ 10. The authority citation for part 124 

continues to read as follows: 

Authority: Resource Conservation and 

Recovery Act, 42 U.S.C. 6901 et seq.; Safe 

Drinking Water Act, 42 U.S.C. 300f et seq.; 

Clean Water Act, 33 U.S.C. 1251 et seq.; 

Clean Air Act, 42 U.S.C. 7401 et seq. 

Subpart A—General Program 

Requirements 

■ 11. In § 124.19: 

■ a. Revise the first sentence of 

paragraph (a)(4)(ii), and paragraph (b). 

■ b. Redesignate paragraph (f)(5) as 

paragraph (f)(6). 

■ c. Add a new paragraph (f)(5). 

■ d. Revise paragraphs (i) introductory 

text, (i)(2) introductory text, and (3). 

The addition and revisions read as 

follows: 

§ 124.19 Appeal of RCRA, UIC, NPDES and 

PSD Permits. 

(a) * * * 

(4) * * * 

(ii) Petitioners must demonstrate, by 

providing specific citation or other 

appropriate reference to the 

administrative record (e.g., by including 

the document name and page number), 

that each issue being raised in the 

petition was raised during the public 

comment period (including any public 

hearing) to the extent required by 

§ 124.13. * * * 

(b) Response(s) to a petition for 

review. (1) In a PSD or other new source 

permit appeal, the Regional 

Administrator must file a response to 

the petition for review, a certified index 

of the administrative record, and the 

relevant portions of the administrative 

record within 21 days after the service 

of the petition. The response brief must 

respond to arguments raised by the 

appellant, together with specific citation 

or other appropriate reference to the 

record (e.g., by including the document 

name and page number). 

(2) In all other permit appeals under 

this section, the Regional Administrator 

must file a response to the petition, a 

certified index of the administrative 

record, and the relevant portions of the 

administrative record within 30 days 

after the service of a petition. 

* * * * * 

(f) * * * 

(5) Length. Unless otherwise ordered 

by the Environmental Appeals Board, 

motions and any responses or replies 

may not exceed 7000 words. Filers may 

rely on the word-processing system 

used to determine the word count. In 

lieu of a word limitation, filers may 

comply with a 15-page limit. Headings, 

footnotes, and quotations count toward 

the word or page-length limitation. The 

Environmental Appeals Board may 

exclude any motion that does not meet 

word limitations. Where a party can 

demonstrate a compelling and 

documented need to exceed such 

limitations, such party must seek 

advance leave of the Environmental 

Appeals Board. Such requests are 

discouraged and will be granted only in 

unusual circumstances. 

* * * * * 

(i) Filing and service requirements. 

Documents filed under this section, 

including the petition for review, must 

be filed with the Clerk of the 

Environmental Appeals Board. A 

document is filed when it is received by 

the Clerk of the Environmental Appeals 

Board at the address specified for the 

appropriate method of delivery as 

provided in paragraph (i)(2) of this 

section. Service of a document between 

parties to an appeal or by the 

Environmental Appeals Board on a 

party is complete upon mailing for U.S. 

mail or EPA internal mail, when placed 

in the custody of a reliable commercial 

delivery service, or upon transmission 

for facsimile or email. 

* * * * * 

(2) Method of filing. Unless otherwise 

permitted under these rules, documents 


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must be filed either by using the 

Environmental Appeals Board’s 

electronic filing system, by U.S. mail, or 

by hand delivery. In addition, a motion 

or a response to a motion may be 

submitted by facsimile if the submission 

contains no attachments. Upon filing a 

motion or response to a motion by 

facsimile, the sender must, within one 

business day, submit the original copy 

to the Clerk of the Environmental 

Appeals Board either electronically, by 

mail, or by hand-delivery. The 

Environmental Appeals Board may by 

order require filing by facsimile or the 

Board’s electronic filing system, subject 

to any appropriate conditions and 

limitations. 

* * * * * 

(3) Service—(i) Service information. 

The first document filed by any person 

shall contain the name, mailing address, 

telephone number, and email address of 

an individual authorized to receive 

service relating to the proceeding. 

Parties shall promptly file any changes 

in this information with the Clerk of the 

Environmental Appeals Board, and 

serve copies on all parties to the 

proceeding. If a party fails to furnish 

such information and any changes 

thereto, service to the party’s last known 

address shall satisfy the requirements of 

paragraph (i)(3) of this section. 

(ii) Service requirements for parties. 

Petitioner must serve the petition for 

review on the Regional Administrator 

and the permit applicant (if the 

applicant is not the petitioner). Once an 

appeal is docketed, every document 

filed with the Environmental Appeals 

Board must be served on all other 

parties. Service must be by first class 

U.S. mail, by any reliable commercial 

delivery service, or, if agreed to by the 

parties, by facsimile or other electronic 

means, including but not necessarily 

limited to or email. A party who 

consents to service by facsimile or other 

electronic means must file an 

acknowledgement of its consent 

(identifying the type of electronic means 

agreed to and the electronic address to 

be used) with the Clerk of the 

Environmental Appeals Board. The 

Environmental Appeals Board may by 

order authorize or require service by 

facsimile, email, or other electronic 

means, subject to any appropriate 

conditions and limitations. 

(iii) Service of rulings, orders, and 

decisions. The Clerk of the 

Environmental Appeals Board must 

serve copies of rulings, orders, and 

decisions on all parties. Service may be 

made by U.S. mail (including by 

certified mail or return receipt 

requested, Overnight Express and 

Priority Mail), EPA’s internal mail, any 

reliable commercial delivery service, or 

electronic means (including but not 

necessarily limited to facsimile and 

email). 

* * * * * 

■ 12. In § 124.20, revise paragraph (d) to 

read as follows: 

§ 124.20 Computation of time. 

* * * * * 

(d) When a party or interested person 

may or must act within a prescribed 

period after being served and service is 

made by U.S. mail, EPA’s internal mail, 

or reliable commercial delivery service, 

3 days shall be added to the prescribed 

time. The prescribed period for acting 

after being served is not expanded by 3 

days when service is made by personal 

delivery, facsimile, or email. 

[FR Doc. 2016–31638 Filed 1–6–17; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2015–0402; FRL–9957–27– 

Region 1] 

Approval and Promulgation of 

Implementation Plans; Rhode Island; 

Clean Air Act Infrastructure State and 

Federal Implementation Plans 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is removing several 

obsolete Federal Implementation Plans 

(FIPs) for the State of Rhode Island. 

These FIPs address Clean Air Act (CAA) 

infrastructure State Implementation 

Plan (SIP) requirements that have since 

been addressed by Rhode Island in its 

SIP. Therefore, EPA is removing from 

the Code of Federal Regulations (CFR) 

the corresponding FIPs. This action is 

being taken in accordance with the 

CAA. 

DATES: This rule is effective on February 

8, 2017. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OAR– 

2015–0402. All documents in the docket 

are listed on the http://

www.regulations.gov Web site, although 

some information, such as confidential 

business information or other 

information whose disclosure is 

restricted by statute is not publically 

available. Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available at http://www.regulations.gov 

or at the U.S. Environmental Protection 

Agency, EPA New England Regional 

Office, Office of Ecosystem Protection, 

Air Quality Planning Unit, 5 Post Office 

Square—Suite 100, Boston, MA. EPA 

requests that, if at all possible, you 

contact the contact listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Richard P. Burkhart, Air Quality 

Planning Unit, Air Programs Branch 

(Mail Code OEP05–02), U.S. 

Environmental Protection Agency, 

Region 1, 5 Post Office Square, Suite 

100, Boston, Massachusetts, 02109– 

3912; (617) 918–1664; 

burkhart.richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 

Organization of this document. The 

following outline is provided to aid in 

locating information in this preamble. 

I. Background and Purpose 

II. Public Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background and Purpose 

This rulemaking addresses 

infrastructure SIP submissions from the 

State of Rhode Island for the 1997 fine 

particle matter (PM2.5), 2006 PM2.5, 2008 

lead (Pb), 2008 ozone, 2010 nitrogen 

dioxide (NO2), and 2010 sulfur dioxide 

(SO2) National Ambient Air Quality 

Standards (NAAQS). The state 

submitted these infrastructure SIPs on 

the following dates: 1997 PM2.5— 

September 10, 2008; 2006 PM2.5— 

November 6, 2009; 2008 Pb—October 

26, 2011; 2008 ozone—January 2, 2013; 

2010 NO2—January 2, 2013; and 2010 

SO2—June 27, 2014. Details of Rhode 

Island’s submittals and EPA evaluation 

of those submittals can be found in our 

Notice of Proposed Rulemaking (NPR) 

(81 FR 10168; February 29, 2016). 

On April 20, 2016, EPA took final 

action on the vast majority of the 

elements included in these submittals 

(see 81 FR 23175). In today’s action, 

EPA is taking final action on its 

proposal to remove the following 

sections from the Code of Federal 

Regulations (CFR): 40 CFR 52.2073(b); 

52.2075(b); and 52.2078(b). As 

discussed in detail in the NPR, these 

sections related to the public 


sradovich on DSK3GMQ082PROD with RULES