69796 Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Proposed Rules 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), nor will it impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: November 3, 2014. 

V. Anne Heard, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2014–27808 Filed 11–21–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2014–0258; FRL–9919–50– 

Region 9] 

Approval and Promulgation of State 

Implementation Plans; Arizona; 

Infrastructure Requirements for the 

2008 Lead (Pb) and the 2008 8-Hour 

Ozone National Ambient Air Quality 

Standards (NAAQS) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of 

Arizona to address the requirements of 

section 110(a)(1) and (2) of the Clean Air 

Act (CAA) for the 2008 Lead (Pb) and 

2008 ozone national ambient air quality 

standards (NAAQS). Section 110(a) of 

the CAA requires that each State adopt 

and submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA. We refer to such 

SIP revisions as ‘‘infrastructure’’ SIPs 

because they are intended to address 

basic structural SIP requirements for 

new or revised NAAQS including, but 

not limited to, legal authority, 

regulatory structure, resources, permit 

programs, monitoring, and modeling 

necessary to assure attainment and 

maintenance of the standards. In 

addition, we are proposing to approve 

several state provisions addressing CAA 

conflict of interest and monitoring 

requirements into the Arizona SIP. We 

are taking comments on this proposal 

and plan to follow with a final action. 

DATES: Written comments must be 

received on or before December 24, 

2014. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R09– 

OAR–2014–0258, by one of the 

following methods: 

1. Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

2. Email: Jeffrey Buss at buss.jeffrey@

epa.gov. 

3. Fax: Jeffrey Buss, Air Planning 

Office (AIR–2), at fax number 415–947– 

3579. 

4. Mail: Jeffrey Buss, Air Planning 

Office (AIR–2), U.S. Environmental 

Protection Agency, Region IX, 75 

Hawthorne, San Francisco, California 

94105. 

5. Hand or Courier Delivery: Jeffrey 

Buss, Air Planning Section (AIR–2), U.S. 

Environmental Protection Agency, 

Region IX, 75 Hawthorne, San 

Francisco, California 94105. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. Special arrangements should 

be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R09–OAR–2014– 

0258. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information 

through www.regulations.gov or email 

that you consider to be CBI or otherwise 

protected from disclosure. The 

www.regulations.gov Web site is an 

anonymous access system, which means 

EPA will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an email comment directly to EPA 

without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 


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1For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

2See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–25165, May 12, 2005 (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

3EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submittal 

of certain types of SIP submittals in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submittal of emissions inventories for the ozone 

NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

4See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339, January 22, 2013 (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR 

4337, January 22, 2013 (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Office (AIR–2), U.S. 

Environmental Protection Agency, 

Region IX, 75 Hawthorne Street, San 

Francisco, California 94105. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection during normal 

business hours. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Buss, Office of Air Planning, U.S. 

Environmental Protection Agency, 

Region 9, (415) 947–4152, email: 

buss.jeffrey@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, the terms 

‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. 

Table of Contents 

I. EPA’s approach to the Review of 

Infrastructure SIP Submittals 

II. Background 

III. Arizona’s Submittals 

IV. EPA’s Evaluation and Proposed Action 

V. Statutory and Executive Order Reviews 

I. EPA’s Approach to the Review of 

Infrastructure SIP Submittals 

EPA is acting upon several SIP 

submittals from Arizona that address 

the infrastructure requirements of CAA 

sections 110(a)(1) and 110(a)(2) for the 

2008 ozone and 2008 Pb NAAQS. The 

requirement for states to make a SIP 

submittal of this type arises out of CAA 

section 110(a)(1). Pursuant to section 

110(a)(1), states must make SIP 

submittals ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submittals are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submittals, and 

the requirement to make the submittals 

is not conditioned upon EPA’s taking 

any action other than promulgating a 

new or revised NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submittal must address. 

EPA has historically referred to these 

SIP submittals made for the purpose of 

satisfying the requirements of CAA 

sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submittals. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submittal from submittals 

that are intended to satisfy other SIP 

requirements under the CAA, such as 

‘‘nonattainment SIP’’ or ‘‘attainment 

SIP’’ submittals to address the 

nonattainment planning requirements of 

part D of title I of the CAA, ‘‘regional 

haze SIP’’ submittals required by EPA 

rule to address the visibility protection 

requirements of CAA section 169A, and 

nonattainment new source review (NSR) 

permit program submittals to address 

the permit requirements of CAA, title I, 

part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submittals, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submittals. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.1 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submittals provided in section 110(a)(2) 

contains ambiguities concerning what is 

required for inclusion in an 

infrastructure SIP submittal. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP submittals 

for a given new or revised NAAQS. One 

example of ambiguity is that section 

110(a)(2) requires that ‘‘each’’ SIP 

submittal must meet the list of 

requirements therein, while EPA has 

long noted that this literal reading of the 

statute is internally inconsistent and 

would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.2 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submittals to 

address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submittal of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.3 This ambiguity illustrates 

that rather than apply all the stated 

requirements of section 110(a)(2) in a 

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submittal. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submittal, and whether EPA 

must act upon such SIP submittal in a 

single action. Although section 110(a)(1) 

directs states to submit ‘‘a plan’’ to meet 

these requirements, EPA interprets the 

CAA to allow states to make multiple 

SIP submittals separately addressing 

infrastructure SIP elements for the same 

NAAQS. If states elect to make such 

multiple SIP submittals to meet the 

infrastructure SIP requirements, EPA 

can elect to act on such submittals 

either individually or in a larger 

combined action.4 Similarly, EPA 

interprets the CAA to allow it to take 

action on the individual parts of one 

larger, comprehensive infrastructure SIP 

submittal for a given NAAQS without 

concurrent action on the entire 

submittal. For example, EPA has 

sometimes elected to act at different 

times on various elements and subVerDate Sep<11>2014 16:57 Nov 21, 2014 Jkt 235001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\24NOP1.SGM 24NOP1

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5On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

6For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

7EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submittals. The 

CAA directly applies to states and requires the 

submittal of infrastructure SIP submittals, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submittals. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

8 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

9EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submittals to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

elements of the same infrastructure SIP 

submittal.5

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submittal 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submittals for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submittal for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants, for example 

because the content and scope of a 

state’s infrastructure SIP submittal to 

meet this element might be very 

different for an entirely new NAAQS 

than for a minor revision to an existing 

NAAQS.6

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submittals required under the CAA. 

Therefore, as with infrastructure SIP 

submittals, EPA also has to identify and 

interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submittals. For 

example, section 172(c)(7) requires that 

attainment plan SIP submittals required 

by part D have to meet the ‘‘applicable 

requirements’’ of section 110(a)(2). 

Thus, for example, attainment plan SIP 

submittals must meet the requirements 

of section 110(a)(2)(A) regarding 

enforceable emission limits and control 

measures and section 110(a)(2)(E)(i) 

regarding air agency resources and 

authority. By contrast, it is clear that 

attainment plan SIP submittals required 

by part D would not need to meet the 

portion of section 110(a)(2)(C) that 

pertains to the air quality prevention of 

significant deterioration (PSD) program 

required in part C of title I of the CAA, 

because PSD does not apply to a 

pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submittal may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submittal. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submittal, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submittals against the 

list of elements in section 110(a)(2), but 

only to the extent each element applies 

for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submittals for particular 

elements.7 EPA most recently issued 

guidance for infrastructure SIPs on 

September 13, 2013 (2013 Infrastructure 

SIP Guidance).8 EPA developed this 

document to provide states with up-todate guidance for infrastructure SIPs for 

any new or revised NAAQS. Within this 

guidance, EPA describes the duty of 

states to make infrastructure SIP 

submittals to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submittals.9 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submittals need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submittal for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submittals. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submittals to ensure that the state’s SIP 

appropriately addresses the 

requirements of section 110(a)(2)(E)(ii) 

and section 128. The 2013 Infrastructure 

SIP Guidance explains EPA’s 

interpretation that there may be a 

variety of ways by which states can 

appropriately address these substantive 

statutory requirements, depending on 

the structure of an individual state’s 

permitting or enforcement program (e.g., 

whether permits and enforcement 

orders are approved by a multi-member 

board or by a head of an executive 

agency). However they are addressed by 

the state, the substantive requirements 

of section 128 are necessarily included 

in EPA’s evaluation of infrastructure SIP 

submittals because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submittals with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C, title I of the Act and 

EPA’s PSD regulations. Structural PSD 

program requirements include 

provisions necessary for the PSD 

program to address all regulated sources 

and regulated NSR pollutants, including 

greenhouse gases (GHGs). By contrast, 

structural PSD program requirements do 

not include provisions that are not 

required under EPA’s regulations at 40 


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10By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submittal that contained a legal deficiency, such as 

a new exemption for excess emissions during SSM 

events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

11For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 76 FR 21639, 

April 18, 2011. 

12EPA has used this authority to correct errors in 

past actions on SIP submittals related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536, December 30, 2010. EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664, July 25, 1996 and 62 FR 34641, 

June 27, 1997 (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062, November 16, 2004 (corrections to 

California SIP); and 74 FR 57051, November 3, 2009 

(corrections to Arizona and Nevada SIPs). 

13See, e.g., EPA’s disapproval of a SIP submittal 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 

42344, July 21, 2010 (proposed disapproval of 

director’s discretion provisions); 76 FR 4540, 

January 26, 2011 (final disapproval of such 

provisions). 

Code of Federal Regulations (CFR) 

51.166 but are merely available as an 

option for the state, such as the option 

to provide grandfathering of complete 

permit applications with respect to the 

2012 PM2.5 NAAQS. Accordingly, the 

latter optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submittal focuses on 

assuring that the state’s SIP meets basic 

structural requirements. For example, 

section 110(a)(2)(C) includes, inter alia, 

the requirement that states have a 

program to regulate minor new sources. 

Thus, EPA evaluates whether the state 

has a SIP-approved minor NSR program 

and whether the program addresses the 

pollutants relevant to that NAAQS. In 

the context of acting on an 

infrastructure SIP submittal, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submittal is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186, 

December 31, 2002, as amended by 72 

FR 32526, June 13, 2007 (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP submittal 

without scrutinizing the totality of the 

existing SIP for such potentially 

deficient provisions and may approve 

the submittal even if it is aware of such 

existing provisions.10 It is important to 

note that EPA’s approval of a state’s 

infrastructure SIP submittal should not 

be construed as explicit or implicit reapproval of any existing potentially 

deficient provisions that relate to the 

three specific issues just described. 

EPA’s approach to review of 

infrastructure SIP submittals is to 

identify the CAA requirements that are 

logically applicable to that submittal. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submittal is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submittal. EPA believes that a better 

approach is for states and EPA to focus 

attention on those elements of section 

110(a)(2) of the CAA most likely to 

warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 

Infrastructure SIP Guidance gives 

simpler recommendations with respect 

to carbon monoxide than other NAAQS 

pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP submittal 

for any future new or revised NAAQS 

for carbon monoxide need only state 

this fact in order to address the visibility 

prong of section 110(a)(2)(D)(i)(II). 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.11 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submittals.12

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submittal is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submittal, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.13

II. Background 

A. Statutory Framework 

As discussed in section I of this 

proposed rule, CAA section 110(a)(1) 

requires each state to submit to EPA, 

within three years after the 

promulgation of a primary or secondary 

NAAQS or any revision thereof, an 

infrastructure SIP revision that provides 


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14 73 FR 66964 (November 12, 2008). The 1978 Pb 

standard (1.5 mg/m3 as a quarterly average) was 

modified to a rolling 3 month average not to be 

exceeded of 0.15 mg/m3. EPA also revised the 

secondary NAAQS to 0.15 mg/m3 and made it 

identical to the revised primary standard. Id. 15See Memorandum from Stephen D. Page, 

Director, Office of Air Quality Planning and 

Standards, to Regional Air Division Directors, 

Regions 1–10 (October 14, 2011). 16 ‘‘DRAFT Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2008 Lead 

(Pb) National Ambient Air Quality Standards 

(NAAQS),’’ June 17, 2011 version. 

17See Memorandum dated September 13, 2013 

from Stephen D. Page, Director, EPA Office of Air 

Quality Planning and Standards, to Regional Air 

Directors, EPA Regions 1–10, ‘‘Guidance on 

Infrastructure State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 110(a)(1) 

and 110(a)(2)’’ (referred to herein as ‘‘2013 

Infrastructure SIP Guidance’’). 

18 73 FR 16436 (March 27, 2008). 

19Preparation of guidance for the 2008 Ozone 

NAAQS was postponed given EPA’s 

reconsideration of the standard. See 78 FR 34183 

(June 6, 2013). 

20See Memorandum dated September 13, 2013 

from Stephen D. Page, Director, EPA Office of Air 

Quality Planning and Standards, to Regional Air 

Directors, EPA Regions 1–10, ‘‘Guidance on 

Infrastructure State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 110(a)(1) 

and 110(a)(2)’’ (referred to herein as ‘‘2013 

Infrastructure SIP Guidance’’). 

21 In a separate rulemaking, EPA fully approved 

Arizona’s SIP to address the requirements regarding 

air pollution emergency episodes in CAA section 

110(a)(2)(G) for the 1997 8-hour ozone NAAQS. 77 

FR 62452 (October 15, 2012). Although ADEQ did 

not submit an analysis of Section 110(a)(2)(G) 

requirements, we discuss them in our TSD, which 

is in the docket for this rulemaking. 

for the implementation, maintenance, 

and enforcement of such NAAQS. 

Section 110(a)(2) sets the content 

requirements of such a plan, which 

generally relate to the information and 

authorities, compliance assurances, 

procedural requirements, and control 

measures that constitute the 

‘‘infrastructure’’ of a state’s air quality 

management program. These 

infrastructure SIP elements required by 

section 110(a)(2) are as follows: 

• Section 110(a)(2)(A): Emission 

limits and other control measures. 

• Section 110(a)(2)(B): Ambient air 

quality monitoring/data system. 

• Section 110(a)(2)(C): Program for 

enforcement of control measures and 

regulation of new and modified 

stationary sources. 

• Section 110(a)(2)(D)(i): Interstate 

pollution transport. 

• Section 110(a)(2)(D)(ii): Interstate 

and international pollution abatement. 

• Section 110(a)(2)(E): Adequate 

resources and authority, conflict of 

interest, and oversight of local and 

regional government agencies. 

• Section 110(a)(2)(F): Stationary 

source monitoring and reporting. 

• Section 110(a)(2)(G): Emergency 

episodes. 

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

• Section 110(a)(2)(J): Consultation 

with government officials, public 

notification, PSD, and visibility 

protection. 

• Section 110(a)(2)(K): Air quality 

modeling and submittal of modeling 

data. 

• Section 110(a)(2)(L): Permitting 

fees. 

• Section 110(a)(2)(M): Consultation/

participation by affected local entities. 

Two elements identified in section 

110(a)(2) are not governed by the threeyear submittal deadline of section 

110(a)(1) and are therefore not 

addressed in this action. These two 

elements are: (i) Section 110(a)(2)(C) to 

the extent it refers to permit programs 

required under part D (nonattainment 

NSR), and (ii) section 110(a)(2)(I), 

pertaining to the nonattainment 

planning requirements of part D. As a 

result, this action does not address 

infrastructure for the nonattainment 

NSR portion of section 110(a)(2)(C) or 

the whole of section 110(a)(2)(I). 

B. Regulatory History 

2008 Pb NAAQS 

On November 12, 2008, the U.S. 

Environmental Protection Agency (EPA) 

issued a revised NAAQS for Pb.14 This 

action triggered a requirement for states 

to submit an infrastructure SIP to 

address the applicable requirements of 

section 110(a)(2) within three years of 

issuance of the revised NAAQS. On 

October 14, 2011, EPA issued 

‘‘Guidance on Section 110 Infrastructure 

SIPs for the 2008 Pb NAAQS’’, referred 

to herein as EPA’s 2011 Pb Guidance.15

Depending on the timing of a given 

submittal, some states relied on the 

earlier draft version of this guidance, 

referred to herein as EPA’s 2011 Draft 

Pb Guidance.16 EPA issued additional 

guidance on infrastructure SIPs on 

September 13, 2013.17

2008 Ozone NAAQS 

On March 27, 2008, EPA issued a 

revised NAAQS for 8-hour Ozone.18

This action triggered a requirement for 

states to submit an infrastructure SIP to 

address the applicable requirements of 

section 110(a)(2) within three years of 

issuance of the revised NAAQS. EPA 

did not, however, prepare guidance at 

this time for states in submitting I–SIP 

revisions for the 2008 Ozone NAAQS.19

On September 13, 2013, EPA issued 

‘‘Guidance of Infrastructure State 

Implementation Plan (SIP) Elements 

under Clean Air Act Sections 110(a)(1) 

and 110(a)(2),’’ which provides advice 

on the development of infrastructure 

SIPs for the 2008 ozone NAAQS (among 

other pollutants) as well as 

infrastructure SIPs for new or revised 

NAAQS promulgated in the future.20

III. The State’s Submittals 

The Arizona Department of 

Environmental Quality (ADEQ) has 

submitted several infrastructure SIP 

revisions pursuant to EPA’s 

promulgation of the NAAQS addressed 

by this proposed rule, including the 

following: 

• October 14, 2011—‘‘Arizona State 

Implementation Plan Revision under 

Clean Air Act Section 110(a)(2) and (2); 

2008 Lead NAAQS,’’ to address all of 

the CAA section 110(a)(2) requirements, 

except for section 110(a)(2)(G) 21 for the 

2008 Pb NAAQS (2011 Pb I–SIP 

Submittal). 

• December 27, 2012—‘‘Arizona State 

Implementation Plan Revision under 

Clean Air Act Section 110(a)(2) and (2); 

2008 8-hour Ozone NAAQS,’’ to address 

all of the CAA section 110(a)(2) 

requirements for the 2008 8-hour Ozone 

NAAQS (2012 Ozone I–SIP Submittal). 

• December 6, 2013—‘‘Submittal of 

Maricopa County Rule 100 revising the 

Maricopa County Portion of the Arizona 

State Implementation Plan for Section 

110(a)(2) Infrastructure’’ from Eric 

Massey, Director of ADEQ (2013 

Maricopa County Submittal). Maricopa 

County Rule 100 was submitted to 

address a deficiency in section 

110(a)(2)(E)(ii) of the SIP for Maricopa 

County concerning conflict of interest 

requirements for hearing boards. 

• December 19, 2013—‘‘Submittal of 

Pima County Rules revising the Pima 

County Portion of the Arizona State 

Implementation Plan for Section 

110(a)(2) Infrastructure’’ from Eric 

Massey, Director of ADEQ (2013 Pima 

County Submittal). This submittal 

included Pima County Rule 17.04.190 

‘‘Composition,’’ adopted September 28, 

1993; Pima County Rule 17.12.040 

‘‘Reporting for Compliance 

Evaluations,’’ adopted September 28, 

1993; and Pima County Rule 17.24.040 

‘‘Reporting Requirements,’’ adopted 

April 19, 2005 for inclusion into the 

Arizona SIP. These rules were 

submitted to address deficiencies in 

section 110(a)(2)(E)(ii) of the SIP 

concerning conflict of interest 

requirements for hearing boards and 

section 110(a)(2)(F) of the SIP 

concerning stationary source monitoring 

and reporting. 

• September 4, 2014—‘‘Submittal of 

Pinal County Rule 1–3–140 Revising the 

Pinal County Portion of the Arizona 

State Implementation Plan for Section 

110(a)(2) Infrastructure’’ from Eric 

Massey, Director of ADEQ (2014 Pinal 


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22Copies of these Arizona county regulations are 

included in the 2013 Pima County and Maricopa 

County Submittals, and 2014 Pinal County 

Submittal, which are available in the docket for this 

action and online at http://regulations.gov, docket 

number EPA–R09–OAR–2014–0258. 

23 77 FR 66398 (November 5, 2012). 

County Submittal). This submittal 

included Pinal County Rule 1–3–140 

‘‘Definitions,’’ adopted July 23, 2014 for 

inclusion into the Arizona SIP. Pinal 

County Rule 1–3–140 was submitted to 

address a deficiency in section 

110(a)(2)(E)(ii) of the SIP for Pinal 

County concerning conflict of interest 

requirements for hearing boards. 

We find that these submittals meet the 

procedural requirements for public 

participation under CAA section 

110(a)(2) and 40 CFR 51.102. 

In addition to the above infrastructure 

submittals, on October 29, 2012, ADEQ 

submitted ‘‘New Source Review State 

Implementation Plan Submission’’ as 

well as ‘‘Supplemental Information to 

2012 New Source Review State 

Implementation Plan Submission’’ on 

July 2, 2014. In addition to addressing 

revisions to Arizona’s New Source 

Review (NSR) program, these 

submissions also relate to I–SIP 

elements in CAA sections 110(a)(2)(C), 

(D), (J) and (K), which EPA is not acting 

on in today’s rulemaking. The I–SIP 

elements in CAA sections 110(a)(2)(C), 

(D), (J) and (K) will be addressed in a 

future rulemaking. 

IV. EPA’s Evaluation and Proposed 

Action 

EPA has evaluated the 2011 Pb I–SIP 

Submittal, the 2012 Ozone I–SIP 

Submittal, the 2013 Maricopa County 

Submittal, the 2013 Pima County 

Submittal, and the 2014 Pinal County 

Submittal, as well as the existing 

provisions of the Arizona SIP for 

compliance with the CAA section 110(a) 

requirements for the 2008 Pb and 2008 

ozone NAAQS. Our Technical Support 

Document (TSD) contains more detailed 

evaluations and is available in the 

public docket for this rulemaking, 

which may be accessed online at http:// 

www.regulations.gov, docket number 

EPA–R09–OAR–2014–0258. 

Based upon this analysis, EPA 

proposes to approve the 2011 Pb I–SIP 

Submittal, the 2012 Ozone I–SIP 

Submittal, the 2013 Maricopa County 

Submittal, the 2013 Pima County 

Submittal and the 2013 Pinal County 

Submittal with respect to the following 

infrastructure SIP requirements: 

• Section 110(a)(2)(A): Emission 

limits and other control measures. 

• Section 110(a)(2)(B): Ambient air 

quality monitoring/data system. 

• Section 110(a)(2)(E): Adequate 

resources and authority, conflict of 

interest, and oversight of local and 

regional government agencies. 

• Section 110(a)(2)(F): Stationary 

source monitoring and reporting. 

• Section 110(a)(2)(G): Emergency 

episodes. 

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

• Section 110(a)(2)(K): Air quality 

modeling and submission of modeling 

data. 

• Section 110(a)(2)(L): Permitting 

fees. 

• Section 110(a)(2)(M): Consultation/

participation by affected local entities. 

In addition, we are proposing to 

approve into the SIP certain regulatory 

provisions included in the 2013 Pima 

County and Maricopa County 

Submittals, and in the 2014 Pinal 

County Submittal, as discussed in the 

TSD.22

On November 5, 2012, EPA approved 

in part and disapproved in part State 

Implementation Plan (SIP) revisions 

submitted by the state of Arizona 

pursuant to the requirements of the 

Clean Air Act (CAA) for the 1997 8-hour 

ozone NAAQS and the 1997 and 2006 

NAAQS for fine particulate matter 

(PM2.5).23 In today’s action, we propose 

to approve certain portions of the 

previously disapproved infrastructure 

SIP action. Specifically, today’s 

proposed action will correct the 

previous deficiencies with respect to 

CAA section 110(a)(2)(E)(ii) for 

Maricopa, Pima, and Pinal Counties and 

section 110(a)(2)(F) for Pima County. If 

finalized before the end of the two-year 

FIP deadline established by our 2012 

action on Arizona’s I–SIP for the 1997 

8-hour ozone NAAQS and 1997 and 

2006 PM2.5 NAAQS, approval of these 

infrastructure SIP elements would 

relieve EPA of the obligation to 

promulgate a FIP, as required under 

CAA Section 110(c)(1). 

We are not proposing to act today on 

those elements of the infrastructure SIP 

that address the requirements of 

sections 110(a)(2)(C), (D), (J) and (K) of 

the Act. On October 29, 2012, ADEQ 

submitted ‘‘New Source Review State 

Implementation Plan Submission’’ and 

on July 2, 2014 submitted 

‘‘Supplemental Information to 2012 

New Source Review State 

Implementation Plan Submission’’. 

These submissions address the 

permitting portions of I–SIP elements in 

CAA sections 110(a)(2)(C), (D), (J) and 

(K) and will be addressed in a 

subsequent rulemaking. 

Section 110(l) of the Act prohibits 

EPA from approving any SIP revision 

that would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (RFP) or any 

other applicable requirement of the Act. 

All of the elements of the infrastructure 

SIP that we are proposing to approve, as 

explained in the TSD, would improve 

the SIP by replacing obsolete statutes or 

regulations and by updating the state 

and local agencies’ SIP implementation 

and enforcement authorities. We 

propose to determine that our approval 

of the elements discussed above would 

comply with CAA section 110(l) 

because the proposed SIP revision 

would not interfere with the on-going 

process for ensuring that requirements 

for RFP and attainment of the NAAQS 

are met, and the SIP revision clarifies 

and updates the SIP. Our TSD contains 

a more detailed discussion of our 

evaluation. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 


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69802 Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Proposed Rules 

1Multi-State Plan option or MSP option means a 

discrete pairing of a package of benefits with 

particular cost sharing (which does not include 

premium rates or premium rate quotes) that is 

offered under a contract with OPM. 

2Note that the U.S. Department of Health & 

Human Services (HHS) determined that Statespecific requirements in the ACA do not apply to 

U.S. territories, and thus territories are not required 

to establish Exchanges. See Letter to Commissioner 

Gregory R. Francis, Division of Banking & 

Insurance, St. Croix, Virgin Islands, from Marilyn 

Tavenner, Administrator, Centers for Medicare and 

Medicaid Services, July 16, 2014. 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Lead, Reporting and 

recordkeeping requirements. 

Dated: September 30, 2014. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2014–27752 Filed 11–21–14; 8:45 am] 

BILLING CODE 6560–50–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

45 CFR Part 800 

RIN 3206–AN12 

Patient Protection and Affordable Care 

Act; Establishment of the Multi-State 

Plan Program for the Affordable 

Insurance Exchanges 

AGENCY: Office of Personnel 

Management. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Office of Personnel 

Management (OPM) is issuing a 

proposed rule to implement 

modifications to the Multi-State Plan 

(MSP) Program based on the experience 

of the Program to date. OPM established 

the MSP Program pursuant to section 

1334 of the Patient Protection and 

Affordable Care Act, as amended by the 

Health Care and Education 

Reconciliation Act of 2010, referred to 

collectively as the Affordable Care Act. 

This proposed rule clarifies the 

approach used to enforce the applicable 

requirements of the Affordable Care Act 

with respect to health insurance issuers 

that contract with OPM to offer MSP 

options. This proposed rule amends 

MSP standards related to coverage area, 

benefits, and certain contracting 

provisions under section 1334 of the 

Affordable Care Act. This document 

also makes non-substantive technical 

changes. 

DATES: Comments are due on or before 

December 24, 2014. 

ADDRESSES: You may submit comments, 

identified by Regulation Identifier 

Number (RIN) 3206–AN12 using any of 

the following methods: 

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

Mail, Hand Delivery or Courier: 

National Healthcare Operations, 

Healthcare and Insurance, U.S. Office of 

Personnel Management, 1900 E Street 

NW., Room 3468, Washington, DC 

20415. 

FOR FURTHER INFORMATION CONTACT: 

Cameron Stokes by telephone at (202) 

606–2128, by FAX at (202) 606–4430, or 

by email at mspp@opm.gov. 

SUPPLEMENTARY INFORMATION: The 

Patient Protection and Affordable Care 

Act (Pub. L. 111–148), as amended by 

the Health Care and Education 

Reconciliation Act of 2010 (Pub. L. 111– 

152), together known as the Affordable 

Care Act, provides for the establishment 

of Affordable Insurance Exchanges, or 

‘‘Exchanges’’ (also called Health 

Insurance Marketplaces, or 

‘‘Marketplaces’’), where individuals and 

small businesses can purchase qualified 

coverage. The Exchanges provide 

competitive marketplaces for 

individuals and small employers to 

compare available private health 

insurance options based on price, 

quality, and other factors. The 

Exchanges enhance competition in the 

health insurance market, improve 

choice of affordable health insurance, 

and give individuals and small 

businesses purchasing power 

comparable to that of large businesses. 

The Multi-State Plan (MSP) Program 

was created pursuant to section 1334 of 

the Affordable Care Act to increase 

competition by offering high-quality 

health insurance coverage sold in 

multiple States on the Exchanges. The 

U.S. Office of Personnel Management 

(OPM) is proposing this regulation to 

modify the standards set forth for the 

MSP Program under 45 CFR part 800 

that was published as final rule on 

March 11, 2013 (78 FR 15560). This 

proposed rule will clarify OPM’s intent 

in administering the Program as well as 

make regulatory changes in order to 

expand issuer participation and 

offerings in the Program to meet the goal 

of increasing competition. 

Abbreviations 

EHB Essential Health Benefits 

FEHBA Federal Employees Health Benefits 

Act 

FEHB Program Federal Employees Health 

Benefits Program 

HHS U.S. Department of Health and Human 

Services 

MSP Multi-State Plan 

NAIC National Association of Insurance 

Commissioners 

OPM U.S. Office of Personnel Management 

PHS Act Public Health Service Act 

QHP Qualified Health Plan 

SHOP Small Business Health Options 

Program 

Table of Contents 

I. Background 

A. Affordable Insurance Exchanges 

B. Objectives of the Multi-State Plan 

Program 

C. Review of U.S. Office of Personnel 

Management’s Role in Contracting Under 

the Federal Employees Health Benefits 

Program 

D. Overview of the Multi-State Plan 

Program’s Statutory Requirements 

E. Stakeholder Interaction 

II. Proposed Regulatory Approach 

A. Overview of Regulatory Approach 

B. Governing Law 

III. Provisions of the Proposed Regulation 

A. General Provisions and Definitions 

B. Multi-State Plan Issuer Requirements 

C. Application and Contracting Procedures 

D. Compliance 

E. Miscellaneous 

IV. Regulatory Impact Analysis 

V. Paperwork Reduction Act 

VI. Regulatory Flexibility Act 

VII. Unfunded Mandates 

VIII. Federalism 

I. Background 

Section 1334 of the Affordable Care 

Act created the Multi-State Plan (MSP) 

Program to foster competition in the 

individual and small group health 

insurance markets on the Exchanges 

(also called Health Insurance Exchanges 

or Marketplaces) based on price, quality, 

and benefit delivery. The Affordable 

Care Act directs the U.S. Office of 

Personnel Management (OPM) to 

contract with private health insurance 

issuers to offer at least two MSP options 

on each of the Exchanges in the States 

and the District of Columbia.1 2 The law 


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