66336 Federal Register / Vol. 88, No. 186 / Wednesday, September 27, 2023 / Proposed Rules 

the notice is also provided to the public 

agency. 

(e) Within 10 days of the date of 

publication of the notice of the 

Administrator’s decision, the public 

agency shall— 

(1) Advise the FAA in writing that it 

will complete any corrective action 

prescribed in the decision within 30 

days; or 

(2) Provide the FAA with a listing of 

the air carriers and foreign air carriers 

operating at the airport and all other 

issuing carriers that have remitted PFC 

revenue to the public agency in the 

preceding 12 months. 

(f) When the Administrator’s decision 

does not provide for corrective action or 

the public agency fails to complete such 

action, the FAA provides a copy of the 

Federal Register notice to each air 

carrier and foreign air carrier identified 

in paragraph (e) of this section. Such 

carriers are responsible for terminating 

or modifying PFC collection no later 

than 30 days after the date of 

notification by the FAA. 

■ 35. Add § 158.89 to read as follows: 

§ 158.89 Loss of Federal airport grant 

funds. 

(a) If the Administrator determines 

that revenue derived from a PFC is 

excessive or is not being used as 

approved, the Administrator may 

reduce the amount of funds otherwise 

payable to the public agency under 49 

U.S.C. 47114. Such a reduction may be 

made as a corrective action under 

§ 158.85 or § 158.87. 

(b) The amount of the reduction under 

paragraph (a) of this section shall equal 

the excess collected, or the amount not 

used in accordance with this part. 

(c) A reduction under paragraph (a) of 

this section shall not constitute a 

withholding of approval of a grant 

application or the payment of funds 

under an approved grant within the 

meaning of 49 U.S.C. 47111(d). 

■ 36. Amend § 158.95 by revising 

paragraph (c) to read as follows: 

§ 158.95 Implementation of reduction. 

* * * * * 

(c) If the projection of PFC revenue in 

a fiscal year is inaccurate, the reduction 

in apportioned funds may be increased 

or decreased in the following fiscal year, 

except that any further reduction shall 

not cause the total reduction to exceed 

either 50 percent or 75 percent of such 

apportioned amount as would otherwise 

be apportioned in any fiscal year. 

■ 37. Amend appendix A to part 158 by 

revising paragraphs (A)(2) and (3), and 

(B)(5) to read as follows: 

Appendix A to Part 158 Assurances 

A. * * * 

2. These assurances are required to be 

submitted as part of the application for 

approval or acknowledgment of 

authority to impose a PFC under the 

provisions of 49 U.S.C. 40117. 

3. Upon approval of an application or 

acknowledgment of a notice of intent by 

the Administrator, the public agency is 

responsible for compliance with these 

assurances. 

B. * * * 

5. Non-exclusivity of contractual 

agreements. It will not enter into an 

exclusive long-term lease or use 

agreement with an air carrier or foreign 

air carrier for projects funded by PFC 

revenue. Such leases or use agreements 

will not preclude the public agency 

from funding, developing, or assigning 

new capacity at the airport with PFC 

revenue. 

* * * * * 

Issued under authority provided by 49 

U.S.C. 106(f) and 40117 in Washington, DC. 

Shannetta R. Griffin, 

Associate Administrator for Airports. 

[FR Doc. 2023–20559 Filed 9–26–23; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2023–0330; FRL–4908.1– 

01–OAR] 

RIN 2060–AV20 

Review of Final Rule Reclassification 

of Major Sources as Area Sources 

Under Section 112 of the Clean Air Act 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing to add 

requirements for sources to reclassify 

from major source status to area source 

status under the National Emission 

Standards for Hazardous Air Pollutants 

(NESHAP) program. The requirements 

of this proposal would apply to all 

sources that choose to reclassify, 

including any sources which have 

reclassified since January 25, 2018. The 

EPA is proposing that sources 

reclassifying from major source status to 

area source status under the NESHAP 

program must satisfy the following 

criteria: any permit limitations taken to 

reclassify from a major source of 

hazardous air pollutants (HAP) under 

the Clean Air Act to an area source of 

HAP must be federally enforceable, any 

such permit limitations must contain 

safeguards to prevent emission increases 

after reclassification beyond the 

applicable major source NESHAP 

requirements at time of reclassification, 

and reclassification will only become 

effective once a permit has been issued 

containing enforceable conditions 

reflecting the requirements proposed in 

this action and electronic notification 

has been submitted to the EPA. 

Additionally, we are proposing 

clarifications to reporting requirements 

and updating language regarding 

submittal of confidential business 

information. 

DATES: 

Comments. Comments must be 

received on or before November 13, 

2023. Under the Paperwork Reduction 

Act (PRA), comments on the 

information collection provisions are 

best assured of consideration if the 

Office of Management and Budget 

(OMB) receives a copy of your 

comments on or before October 27, 

2023. 

Public hearing: If anyone contacts us 

requesting a public hearing on or before 

October 2, 2023, we will hold a virtual 

public hearing. See SUPPLEMENTARY

INFORMATION for information on 

requesting and registering for a public 

hearing. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2023–0330, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Email: a-and-r-docket@epa.gov. 

Include Docket ID No. EPA–HQ–OAR– 

2023–0330 in the subject line of the 

message. 

• Fax: (202) 566–9744. Attention 

Docket ID No. EPA–HQ–OAR–2023– 

0330. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Docket ID No. EPA–HQ–OAR–2023– 

0330, Mail Code 28221T, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460. 

• Hand/Courier Delivery: EPA Docket 

Center, WJC West Building, Room 3334, 

1301 Constitution Avenue NW, 

Washington, DC 20004. The Docket 

Center’s hours of operation are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

federal holidays). 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 


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on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: For 

questions about this proposed action, 

contact U.S. EPA, Attn: Nathan 

Topham, Mail Drop: D243–02, 109 T.W. 

Alexander Drive, P.O. Box 12055, RTP, 

North Carolina 27711; telephone 

number: (919) 541–0483; email address: 

topham.nathan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Participation in virtual public 

hearing. To request a virtual public 

hearing, contact the public hearing team 

at (888) 372–8699 or by email at 

SPPDpublichearing@epa.gov. If 

requested, the hearing will be held via 

virtual platform on October 12, 2023. 

The hearing will convene at 10:00 a.m. 

Eastern Time (ET) and will conclude at 

4:00 p.m. ET. The EPA may close a 

session 15 minutes after the last preregistered speaker has testified if there 

are no additional speakers. The EPA 

will announce further details at https:// 

www.epa.gov/stationary-sources-airpollution/reclassification-majorsources-area-sources-under-section-112. 

If a public hearing is requested, the 

EPA will begin pre-registering speakers 

for the hearing no later than 1 business 

day after a request has been received. To 

register to speak at the virtual hearing, 

please use the online registration form 

available at https://www.epa.gov/ 

stationary-sources-air-pollution/ 

reclassification-major-sources-areasources-under-section-112 or contact the 

public hearing team at (888) 372–8699 

or by email at SPPDpublichearing@

epa.gov. The last day to pre-register to 

speak at the hearing will be October 10, 

2023. Prior to the hearing, the EPA will 

post a general agenda that will list preregistered speakers at: https:// 

www.epa.gov/stationary-sources-airpollution/reclassification-majorsources-area-sources-under-section-112. 

The EPA will make every effort to 

follow the schedule as closely as 

possible on the day of the hearing; 

however, please plan for the hearings to 

run either ahead of schedule or behind 

schedule. 

Each commenter will have 4 minutes 

to provide oral testimony. The EPA 

encourages commenters to provide the 

EPA with a copy of their oral testimony 

electronically (via email) by emailing it 

to topham.nathan@epa.gov. The EPA 

also recommends submitting the text of 

your oral testimony as written 

comments to the rulemaking docket. 

The EPA may ask clarifying questions 

during the oral presentations but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral testimony 

and supporting information presented at 

the public hearing. 

Please note that any updates made to 

any aspect of the hearing will be posted 

online at https://www.epa.gov/ 

stationary-sources-air-pollution/ 

reclassification-major-sources-areasources-under-section-112. While the 

EPA expects the hearing to go forward 

as set forth above, please monitor our 

website or contact the public hearing 

team at (888) 372–8699 or by email at 

SPPDpublichearing@epa.gov to 

determine if there are any updates. The 

EPA does not intend to publish a 

document in the Federal Register 

announcing updates. 

If you require the services of a 

translator or special accommodation 

such as audio description, please preregister for the hearing with the public 

hearing team and describe your needs 

by October 4, 2023. The EPA may not 

be able to arrange accommodations 

without advanced notice. 

Docket. The EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2023–0330. All 

documents in the docket are listed in 

https://www.regulations.gov/. Although 

listed, some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy. With the 

exception of such material, publicly 

available docket materials are available 

electronically in Regulations.gov. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2023– 

0330. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at https:// 

www.regulations.gov/, including any 

personal information provided, unless 

the comment includes information 

claimed to be CBI or other information 

whose disclosure is restricted by statute. 

Do not submit electronically to https:// 

www.regulations.gov/ any information 

that you consider to be CBI or other 

information whose disclosure is 

restricted by statute. This type of 

information should be submitted as 

discussed below. 

The EPA may publish any comment 

received to its public docket. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the Web, 

cloud, or other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

The https://www.regulations.gov/ 

website allows you to submit your 

comment anonymously, which means 

the 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 the 

EPA without going through https:// 

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, the EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

digital storage media you submit. If the 

EPA cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, the EPA may not 

be able to consider your comment. 

Electronic files should not include 

special characters or any form of 

encryption and be free of any defects or 

viruses. For additional information 

about the EPA’s public docket, visit the 

EPA Docket Center homepage at https:// 

www.epa.gov/dockets. 

Submitting CBI. Do not submit 

information containing CBI to the EPA 

through https://www.regulations.gov/. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information on any digital 

storage media that you mail to the EPA, 

note the docket ID, mark the outside of 

the digital storage media as CBI, and 

identify electronically within the digital 

storage media the specific information 

that is claimed as CBI. In addition to 

one complete version of the comments 

that includes information claimed as 

CBI, you must submit a copy of the 

comments that does not contain the 

information claimed as CBI directly to 

the public docket through the 

procedures outlined in Instructions 

above. If you submit any digital storage 

media that does not contain CBI, mark 

the outside of the digital storage media 

clearly that it does not contain CBI and 

note the docket ID. Information not 

marked as CBI will be included in the 

public docket and the EPA’s electronic 

public docket without prior notice. 

Information marked as CBI will not be 


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1This refers to the legal authority granted under 

the CAA (i.e., under section 113 and section 304(a) 

of the statute) to the EPA Administrator and 

citizens to enforce in Federal court all limitations 

and conditions that implement requirements under 

the CAA (e.g., issued under an approved program 

under section 112(l) of the CAA or a SIP or another 

statute administered by the EPA.). 

disclosed except in accordance with 

procedures set forth in 40 Code of 

Federal Regulations (CFR) part 2. 

Our preferred method to receive CBI 

is for it to be transmitted electronically 

using email attachments, File Transfer 

Protocol (FTP), or other online file 

sharing services (e.g., Dropbox, 

OneDrive, Google Drive). Electronic 

submissions must be transmitted 

directly to the OAQPS CBI Office at the 

email address oaqpscbi@epa.gov, and as 

described above, should include clear 

CBI markings and note the docket ID. If 

assistance is needed with submitting 

large electronic files that exceed the file 

size limit for email attachments, and if 

you do not have your own file sharing 

service, please email oaqpscbi@epa.gov 

to request a file transfer link. If sending 

CBI information through the postal 

service, please send it to the following 

address: OAQPS Document Control 

Officer (C404–02), OAQPS, U.S. 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, Attention Docket ID No. EPA– 

HQ–OAR–2023–0330. The mailed CBI 

material should be double wrapped and 

clearly marked. Any CBI markings 

should not show through the outer 

envelope. 

Preamble acronyms and 

abbreviations. Throughout this 

preamble the use of ‘‘we,’’ ‘‘us,’’ or 

‘‘our’’ is intended to refer to the EPA. 

We use multiple acronyms and terms in 

this preamble. While this list may not be 

exhaustive, to ease the reading of this 

preamble and for reference purposes, 

the EPA defines the following terms and 

acronyms here: 

CAA Clean Air Act 

CEDRI Compliance and Emissions Data 

Reporting Interface 

CFR Code of Federal Regulations 

D.C. Cir. the United States Court of Appeals 

for the District of Columbia Circuit 

EPA Environmental Protection Agency 

FIP Federal Implementation Plan 

HAP hazardous air pollutant(s) 

MACT maximum achievable control 

technology 

MM2A Major MACT to Area 

MRR monitoring, recordkeeping, and 

reporting 

NESHAP national emission standards for 

hazardous air pollutants 

NMA National Mining Association 

NSR New Source Review 

NTTAA National Technology Transfer and 

Advancement Act 

OIAI Once In, Always In 

OMB Office of Management and Budget 

PRA Paperwork Reduction Act 

PSD prevention of significant deterioration 

PTE potential to emit 

RFA Regulatory Flexibility Act 

RIA Regulatory Impact Analysis 

SIP State Implementation Plan 

TIP Tribal Implementation Plan 

tpy tons per year 

UMRA Unfunded Mandates Reform Act 

Organization of this document. The 

information in this preamble is 

organized as follows: 

I. General Information 

A. Does this rule apply to me? 

B. Where can I get a copy of this document 

and other related information? 

II. Background 

A. What is the statutory authority for this 

action? 

B. History of PTE and Enforceability of 

Limits in the NESHAP Program 

C. History of Reclassifications in the 

NESHAP Program 

III. Proposed Criteria for MM2A 

Reclassifications 

A. Electronic Notification and 

Reclassification Effective Date 

B. Sufficiency of Limits Taken To 

Reclassify 

C. Ministerial Revisions From the 2020 

MM2A Final Rule 

D. What sources will have to ensure all 

new requirements are met and when will 

those sources need to comply with the 

new requirements? 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations and Executive Order 14096: 

Revitalizing Our Nation’s Commitment 

to Environmental Justice for All 

I. General Information 

A. Does this rule apply to me? 

Categories and entities potentially 

impacted by this rule include major 

sources of HAP that choose to take 

limitations to restrict their potential to 

emit in order to reclassify from a major 

source of HAP to an area source of HAP 

pursuant to the requirements in 40 CFR 

part 63, subpart A, implementing 

section 112 of the CAA. This rule also 

would impact those sources that have 

reclassified since January 25, 2018. 

Federal, state, local, and tribal 

governments may be affected by the 

proposed amendments, once 

promulgated, if their current programs 

do not meet the requirements, and those 

jurisdictions choose to create potential 

to emit (PTE) limiting mechanisms that 

allow sources located within their 

jurisdiction to reclassify from major to 

area source status under the NESHAP 

program. Section 112(l) of the CAA 

allows for delegation of the 

implementation and enforcement of 

NESHAPs to state and local air 

pollution control agencies and 40 CFR 

part 63, subpart E contains the 

regulatory framework for such 

delegations. Per 40 CFR 63.90(e), 

programs approved under 40 CFR part 

63, subpart E are federally enforceable 

by the Administrator and citizens under 

the CAA.1 Subpart E describes the types 

of delegations, including straight 

delegations of NESHAPs (delegation of 

individual NESHAPs without change), 

rule adjustment (delegation of 

individual NESHAPs with changes), 

rule substitution (delegation of 

individual NESHAPs through use of a 

state/local/tribal rule in place of the 

NESHAP), equivalence by permit 

(alternative requirements and 

authorities that take the form of permit 

terms and conditions for individual 

facilities instead of source category 

regulations), and approval of programs 

that substitute for CAA section 112 

requirements (intended for mature air 

toxics programs with many regulations 

affecting source categories regulated by 

Federal section 112 standards). Subpart 

E describes the necessary components 

for programs, timing of review and 

approval by the EPA, and approval or 

disapproval process for such programs. 

If federally enforceable HAP PTE 

limiting mechanisms do not exist in a 

state, that state can choose to submit 

mechanisms according to one of the 

processes provided in 40 CFR part 63, 

subpart E. In short, this process involves 

a state submitting authorities to the EPA 

for review and approval to use in lieu 

of CAA section 112 requirements. While 

the specific steps involved in this 

process depend on the type of HAP PTE 

limiting mechanism under 

consideration (e.g., the process for a 

straight delegation is simpler than the 

state program approval process), the end 

result is a federally enforceable 

mechanism that has been reviewed and 

approved by the EPA. We are seeking 

comment on the potential burdens on 


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2Two tribes have approved title V programs or 

delegation of 40 CFR part 71. The tribes may have 

sources that request to no longer be covered by title 

V. Neither of these two tribes have approved minor 

source permitting programs but may in the future. 

In the meantime, the tribes will need to coordinate 

with the EPA, who is the permitting authority in 

Indian country for these requests. In addition, two 

other tribes has a major source that would be 

eligible to request reclassification. If that source 

requests a new permit, the tribe may issue the 

minor source permit, but the EPA would need to 

be made aware of the request, as the EPA is the 

permitting authority for title V. 

3The term regulatory authority is intended to be 

inclusive of the federal, state, tribal, or local air 

pollution control agency with authority to process 

reclassification requests and issuance of enforceable 

PTE limits. 

4CAA section 112(a)(1) defines major source, in 

relevant part, as ‘‘any stationary source or group of 

stationary sources located within a contiguous area 

and under common control that emits or has the 

potential to emit considering controls, in the 

aggregate, 10 tons per year or more of any 

hazardous air pollutant or 25 tons per year or more 

of any combination of hazardous air pollutants.’’ 

(emphasis added). 

states and regulated facilities related to 

the use of 40 CFR part 63, subpart E by 

states for mechanisms to allow sources 

to reclassify from major sources to area 

sources. We are also seeking comment 

on the time needed should a state 

choose to submit programs for EPA 

review and approval under subpart E in 

order to allow for sources to reclassify 

from major sources to area sources 

where no such federally enforceable 

programs currently exist. This proposal 

does not require any changes or seek to 

alter in any way existing state-only 

enforceable PTE limiting mechanisms 

that are not used for sources 

reclassifying from major sources of HAP 

to area sources of HAP. 

The EPA is the permitting authority 

for issuing, rescinding, and amending 

permits for sources in Indian country, 

with four exceptions.2 Once 

promulgated, state, local, or tribal 

regulatory authorities 3 may receive 

requests to issue new permits or make 

changes to existing permits for sources 

in their jurisdiction to address the 

amended requirements. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this action 

is available on the internet. Following 

signature by the EPA Administrator, the 

EPA will post a copy of this proposed 

action at https://www.epa.gov/ 

stationary-sources-air-pollution/ 

reclassification-major-sources-areasources-under-section-112. Following 

publication in the Federal Register, the 

EPA will post the Federal Register 

version of the proposal and key 

technical documents at this same 

website. 

A memorandum showing the rule 

edits that would be necessary to 

incorporate the changes to 40 CFR part 

63, subpart A proposed in this action is 

available in the docket (Docket ID No. 

EPA–HQ–OAR–2023–0330). The EPA 

also will post a copy of this document 

to https://www.epa.gov/stationarysources-air-pollution/reclassificationmajor-sources-area-sources-undersection-112. 

II. Background 

A. What is the statutory authority for 

this action? 

The statutory authority for this action 

is provided by section 112 of the CAA, 

as amended (42 U.S.C. 7401 et seq.). 

Section 112 of the CAA requires the 

EPA to establish emissions standards for 

‘‘major sources’’ and ‘‘area sources’’ of 

HAP to control and reduce their 

emissions. Section 112(a)(1) defines 

major source, in relevant part, as ‘‘any 

stationary source or group of stationary 

sources located within a contiguous area 

and under common control that emits or 

has the potential to emit considering 

controls, in the aggregate, 10 tons per 

year or more of any hazardous air 

pollutant or 25 tons per year or more of 

any combination of hazardous air 

pollutants’’; and 112(a)(2) defines area 

source, in relevant part, as ‘‘any 

stationary source of hazardous air 

pollutants that is not a major source.’’ 

42 U.S.C. 7412(a)(1) and (2). 

For major sources, section 112 

establishes a two-stage regulatory 

process to develop standards to control 

HAP emissions. The first stage requires 

the EPA to establish technology-based 

standards based on the maximum 

achievable control technology (MACT). 

In this stage the EPA must establish 

minimum standards based on best 

performing units in a source category, 

referred to as the MACT floor, and 

evaluate whether additional emission 

reductions are achievable based on the 

EPA’s consideration the cost of 

achieving such emission reduction, and 

any non-air quality health and 

environmental impacts and energy 

requirements, referred to as the beyondthe-floor analysis. The second stage 

requires the EPA to evaluate residual 

risk from HAP after implementation of 

the initial standards to determine 

whether promulgation of additional 

standards is needed to provide an ample 

margin of safety to protect public health 

or to prevent an adverse environmental 

effect, referred to as the residual risk 

review; and requires the EPA to evaluate 

developments in practices, processes, 

and control technologies to determine if 

more stringent standards are necessary, 

referred to as the technology review. 

Pursuant to CAA section 112(f)(2), the 

EPA is required to perform residual risk 

reviews within 8 years of promulgating 

initial standards; and pursuant to 

section 112(d)(6), the EPA is required to 

perform the technology review no less 

often than every 8 years. 

For area sources, the EPA may elect 

to promulgate alternative standards than 

those established for major sources that 

provide for the use of generally 

available control technologies (GACT) 

or management practices to reduce HAP 

emissions. Unlike MACT standards 

required for major sources, GACT 

standards are not required to be updated 

pursuant to residual risk reviews and 

unlike the MACT ‘‘floor’’ process, GACT 

standards may consider costs when 

establishing the level of the standard. 

B. History of PTE and Enforceability of 

Limits in the NESHAP Program 

The potential to emit (PTE) is key to 

the distinction between major and area 

sources. PTE refers to the maximum 

capacity of a stationary source to emit 

a pollutant under its physical and 

operational design and is used to 

determine whether a source qualifies as 

a major or area source. In 1994, the EPA 

promulgated the definition of PTE in the 

General Provisions of the NESHAP at 40 

CFR 63.2, which defined PTE in terms 

based on the major source definition in 

section 112(a)(1) of the CAA.4 As 

promulgated in 1994, the PTE definition 

states that PTE ‘‘means the maximum 

capacity of a stationary source to emit 

a pollutant under its physical and 

operational design. Any physical or 

operational limitation on the capacity of 

the stationary source to emit a pollutant, 

including air pollution control 

equipment and restrictions on hours of 

operation or on the type or amount of 

material combusted, stored, or 

processed, shall be treated as part of its 

design if the limitation or the effect it 

would have on emissions is federally 

enforceable.’’ Under this definition, and 

consistent with section 112(a)(1), 

sources that would otherwise qualify as 

major sources are able to obtain 

enforceable permit limitations from the 

EPA or delegated authority containing 

physical or operational limits to bring 

their emission below the major source 

threshold, referred to as synthetic minor 

sources. 

In National Mining Association 

(NMA) v. EPA, 59 F.3d 1351 (D.C. Cir. 

1995), the D.C. Cir. remanded without 

vacatur the 40 CFR 63.2 definition to the 

EPA to justify the requirement that 


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5Two additional cases addressing PTE in 

different CAA programs were decided after 

National Mining. In Chemical Manufacturers Ass’n 

v. EPA, No. 89–1514, 1995 WL 650098 (D.C. Cir. 

Sept. 15, 1995), the court, in light of National 

Mining, vacated and remanded to EPA the federal 

enforceability component in the potential to emit 

definition in the PSD and NSR regulations (40 CFR 

parts 51 and 52). In Clean Air Implementation 

Project v. EPA, No. 96–1224, 1996 WL 393118 (D.C. 

Cir. June 28, 1996), the court vacated and remanded 

the federal enforceability requirement in the title V 

regulations (40 CFR part 70). The CMA and the 

CAIP orders were similar in that they contained no 

independent legal analysis, but rather relied on the 

National Mining decision. 

6See ‘‘Third Extension of January 25, 1995 

Potential to Emit Transition Policy,’’ from John S. 

Seitz and Eric V. Schaeffer to Regional Offices 

(December 20, 1999). See also ‘‘Options for Limiting 

the Potential to Emit (PTE) of a Stationary Source 

Under Section 112 and Title V of the Clean Air 

Act,’’ from John S. Seitz and Robert I. Van Heuvelen 

to Regional Offices (January 25, 1995); ‘‘Extension 

of January 25, 1995, Potential to Emit Transition 

Policy,’’ from John S. Seitz and Robert I. Van 

Heuvelen to Regional offices (August 27, 1997). 

Copies of these memoranda are available in the 

docket for this action. 

7 ‘‘Options for Limiting the Potential to Emit 

(PTE) of a Stationary Source Under Section 112 and 

Title V of the Clean Air Act,’’ from John S. Seitz 

and Robert I. Van Heuvelen to Regional Offices 

(January 25, 1995) 

8See 40 CFR 63.10(b)(3). These requirements 

became final April 5, 2002. See 67 FR 16582 (April 

5, 2002); see also, 66 FR 16342 (March 23, 2001). 

9 ‘‘Potential to Emit for MACT Standards— 

Guidance on Timing Issues,’’ from John Seitz to the 

EPA Regional Air Division Directors (May 16, 1995) 

(‘‘1995 Seitz Memorandum’’) (available in the 

docket for this action). 

10The ‘‘first substantive compliance date’’ is 

defined as the first date a source must comply with 

an emission limitation or other substantive 

regulatory requirement (i.e., leak detection and 

repair programs, work practice measures, etc., but 

not a notice requirement) in the applicable 

standard. 

11See 1995 Seitz Memorandum at 9 (‘‘A once in, 

always in policy ensures that MACT emissions 

reductions are permanent, and that the health and 

environmental protection provided by MACT 

standards is not undermined.’’). 

12 Id. at 6. 

physical or operational limits on the 

capacity to emit a pollutant be 

‘‘federally enforceable,’’ i.e., whether 

limits needed to be enforceable by the 

EPA and citizen groups under the CAA 

or other federal statutes. The NMA 

decision confirmed that the EPA has an 

obligation to ensure that limits 

considered in determining a source’s 

PTE are effective, but it stated that the 

Agency had not adequately explained 

how ‘‘federal enforceability’’ furthered 

effectiveness. 59 F.3d at 1363–1365.5

After the NMA decision, the EPA 

extended a pre-existing transitional 

policy allowing the use of non-federally 

enforceable limits (e.g., state-only 

enforceable limits) for limiting PTE 

provided those limits are legally 

enforceable and practicably 

enforceable.6 Legal enforceability means 

that the reviewing authority has the 

right to enforce a limit or restriction. As 

the EPA explained in the transitional 

policy, practicably enforceable means 

that limitations and restrictions must be 

of sufficient quality and quantity to 

ensure accountability, and specifically, 

for a permit provision to be practicable 

enforceable it must specify ‘‘(1) a 

technically-accurate limitation and the 

portions of the source subject to the 

limitation; (2) the time period for the 

limitation (hourly, daily, monthly, 

annually); and (3) the method to 

determine compliance including 

appropriate monitoring, recordkeeping 

and reporting.’’ 7

On March 23, 2001, the EPA added 

recordkeeping requirements for 

applicability determinations for sources 

with a maximum capacity to emit HAP 

in amounts greater than major source 

thresholds but with PTE limits to avoid 

applicability of a standard.8 At that 

time, the EPA also confirmed that until 

the rules are clarified to address various 

PTE issues, consistent with the NMA 

Court decision, any determination of 

HAP PTE under 40 CFR 63.2 should 

consider the regulations and also take 

into consideration the EPA transition 

policy guidance memoranda. 66 FR 

16342 (March 23, 2001). 

On November 19, 2020, the EPA issue 

a final rule titled ‘‘Reclassification of 

Major Sources as Area Sources Under 

Section 112 of the Clean Air Act,’’ 85 FR 

73854 (referred to here as the 2020 

MM2A final rule), in which the EPA 

made an interim ministerial revision to 

the definition of ‘‘potential to emit’’ in 

40 CFR 63.2, which is discussed further 

in section II.C.1. of this preamble. See 

85 FR 73875 (November 19, 2020). 

Specifically, the Agency removed the 

word ‘‘federally’’ from the phrase 

‘‘federally enforceable’’ that was in the 

40 CFR 63.2 definition of ‘‘potential to 

emit.’’ 

C. History of Reclassifications in the 

NESHAP Program 

1. What has happened to date in Section 

112 of the CAA related to major source 

reclassifications? 

Shortly after the EPA began 

promulgating individual NESHAP 

standards following the 1990 CAA 

Amendments, the Agency received 

multiple requests to clarify when a 

major source of HAP could avoid CAA 

section 112 requirements applicable to 

major sources by taking enforceable 

limits on its PTE below the major source 

thresholds. In response, the EPA issued 

a 1995 a memorandum 9 that provided 

guidance on three timing issues related 

to avoidance of CAA section 112 

requirements for major sources: 

• ‘‘By what date must a facility limit 

its PTE if it wishes to avoid major 

source requirements of a MACT 

standard?’’ 

• ‘‘Is a facility that is required to 

comply with a MACT standard 

permanently subject to that standard?’’ 

• ‘‘In the case of facilities with two or 

more sources in different source 

categories: If such a facility is a major 

source for purposes of one MACT 

standard, is the facility necessarily a 

major source for purposes of 

subsequently promulgated MACT 

standards?’’ 

In the 1995 Seitz Memorandum, the 

EPA stated our interpretation of the 

relevant statutory language that facilities 

that are major sources of HAP may 

switch to area source status at any time 

until the ‘‘first compliance date’’ of the 

standard.10 Under this interpretation, 

facilities that are major sources on the 

first substantive compliance date of an 

applicable major source NESHAP were 

required to comply permanently with 

that major source standard even if the 

source was subsequently to become an 

area source by limiting its PTE. This 

position was commonly referred to as 

the ‘‘Once In, Always In’’ (OIAI) policy. 

The 1995 Seitz Memorandum provided 

that a source that is major for one MACT 

standard would not be considered major 

for a subsequent MACT standard if the 

source’s potential to emit HAP 

emissions was reduced to below major 

source levels by complying with the 

first major source MACT standard. In 

the 1995 Seitz Memorandum, the EPA 

set forth transitional policy guidance 

that was intended to remain in effect 

only until the Agency proposed and 

promulgated amendments to the 40 CFR 

part 63 General Provisions. 

The expressed basis for the OIAI 

policy was that it would help ensure 

that required reductions in HAP 

emissions were maintained over time in 

a way that was consistent with the 

language and structure of the statute, 

and would avoid compromising the 

emissions reductions that Congress 

mandated major source to achieve.11

The EPA explained at the time that 

because the CAA did not directly 

address a deadline for a source to avoid 

requirements applicable to major 

sources through a reduction of potential 

to emit, the EPA viewed the OIAI policy 

as consistent with ‘‘the language and 

structure of the Act . . . that sources 

should not be allowed to avoid 

compliance with a standard after the 

compliance date, even through a 

reduction in potential to emit.’’ 12

Since issuing the OIAI policy, the 

EPA has twice proposed regulatory 


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13See notice of issuance of this guidance 

memorandum at 83 FR 5543 (February 8, 2018). 

14See 84 FR 36304 (July 26, 2019). 

15See 72 FR 69 (January 3, 2007). 

amendments that would have altered 

the OIAI policy. In 2003, the EPA 

proposed amendments that focused on 

HAP emissions reductions resulting 

from pollution prevention activities but 

did not finalize the proposed changes 

relevant to the OIAI policy. See 68 FR 

26249 (May 15, 2003); 69 FR 21737 

(April 22, 2004). 

In 2007, the EPA proposed to replace 

the OIAI policy set forth in the 1995 

Seitz Memorandum. 72 FR 69 (January 

3, 2007). In that proposal, the EPA 

proposed that a major source that is 

subject to a major source MACT 

standard would no longer be subject to 

that standard if the source were to 

become an area source through an 

enforceable limitation on its PTE for 

HAP. Under the 2007 proposal, major 

sources could take such limits on their 

PTE and obtain ‘‘area source’’ status at 

any time and would not be required to 

have done so before the ‘‘first 

compliance date,’’ as the OIAI policy 

provided. Id. at 70 (‘‘The regulatory 

amendments proposed today, if 

finalized, would replace the 1995 OIAI 

policy and allow a major source of HAP 

emissions to become an area source at 

any time by limiting its PTE for HAP 

below the major source thresholds.’’). 

Many commenters supporting the 

2007 proposal expressed the view that, 

by imposing an artificial time limit on 

major sources obtaining area source 

status, the OIAI policy created a 

disincentive for sources to implement 

voluntary pollution abatement and 

prevention efforts, or to pursue 

technological innovations that would 

reduce HAP emissions further. 

Stakeholders commented to the EPA 

that the definitions in CAA section 

112(a) contain a single factor for 

distinguishing between major source 

and area source—the amount of HAP 

the source ‘‘emits’’ or ‘‘has the potential 

to emit.’’ Commenters further stated that 

the temporal limitation imposed by the 

OIAI policy was inconsistent with the 

CAA and created an arbitrary date by 

which sources must determine whether 

their HAP PTE will exceed either of the 

major source thresholds. Other 

commenters opposed the 2007 proposal, 

arguing that it would contravene 

Congress’s intent in developing section 

112 of the CAA, lead to backsliding in 

performance of pollution controls and 

resulting health protections from 

sources no longer subject to MACT 

standards, and lacked sufficient 

rationale to justify overturning longstanding EPA policy regarding major 

and area sources. The EPA never took 

final action on the 2007 proposal, and 

it was later superseded and replaced. 

Comments on the lack of a temporal 

distinction in defining major sources 

and area sources were re-emphasized in 

comments received per Executive Order 

13777, Enforcing the Regulatory Reform 

Agenda (February 24, 2017), and the 

Presidential Memorandum on 

Streamlining Permitting and Reducing 

Regulatory Burdens for Domestic 

Manufacturing (January 24, 2017). 

On January 25, 2018, the EPA issued 

a memorandum from William L. 

Wehrum, Assistant Administrator of the 

Office of Air and Radiation, to the EPA 

Regional Air Division Directors titled 

‘‘Reclassification of Major Sources as 

Area Sources Under Section 112 of the 

Clean Air Act’’ (MM2A Memorandum) 

withdrawing the OIAI policy.13 The 

MM2A Memorandum discussed the 

statutory provisions that govern when a 

major source subject to major source 

NESHAP requirements under section 

112 of the CAA may be reclassified as 

an area source, and thereby avoid being 

subject thereafter to major source 

NESHAP requirements and other 

requirements applicable to major 

sources under CAA section 112. In the 

MM2A Memorandum, the EPA 

discussed the language of CAA section 

112(a) regarding Congress’s definitions 

of ‘‘major source’’ and ‘‘area source,’’ 

and determined that the OIAI policy 

articulated in the 1995 Seitz 

Memorandum was contrary to the plain 

language of the CAA and, therefore, 

must be withdrawn. 

In the MM2A Memorandum, the EPA 

announced the future publication of a 

proposed rule to receive input from the 

public on adding regulatory text 

consistent with the reading of the 

statute as described in the MM2A 

Memorandum. On July 26, 2019, the 

EPA proposed regulatory text to 

implement the reading of the statute as 

discussed in the MM2A 

Memorandum.14 The 2019 proposal 

superseded and replaced the 2007 

proposal.15

The 2019 MM2A proposal also 

addressed questions received after the 

issuance of the 2018 MM2A 

Memorandum. In the comments on the 

2007 and 2019 proposals, many 

stakeholders asserted that the 

implementation of this reading and 

withdrawal of the OIAI policy would 

create incentives for stationary sources 

that have reduced HAP emissions to 

below major source thresholds to 

reclassify to area source status by taking 

enforceable PTE limits and reduce their 

compliance burden. These stakeholders 

also stated that sources with emissions 

above major source thresholds after 

complying with CAA section 112 major 

source requirements could be 

encouraged to evaluate their operations 

and consider additional changes that 

can further reduce their HAP emissions 

to below the major source thresholds. 

Other stakeholders raised the concern 

that allowing sources to reclassify could 

potentially result in emission increases 

from sources that have reduced their 

actual emissions to below the major 

source thresholds because they have 

had to comply with major source 

NESHAP requirements. Some 

stakeholders contended that federal 

safeguards (i.e., conditions on 

reclassification requiring that sources 

limit emissions to at least the level of 

control achieved under the major source 

NESHAP) were required to ensure that 

the emissions did not increase from 

sources that reclassified. They noted 

that some states cannot implement air 

pollution control requirements that are 

not derived from Federal regulations, 

while other stakeholders asserted that 

only those major sources that had 

reduced emissions through pollution 

prevention or removal of equipment 

should be allowed to reclassify. 

Other stakeholders, generally opposed 

to requiring safeguards, questioned the 

legal basis for establishing safeguards 

that would restrict emissions from area 

sources. These stakeholders stated that 

the EPA holds no regulatory authority to 

prohibit or regulate emissions increases 

from area sources unless EPA lists these 

area sources under CAA section 112 and 

then develops standards, or if area 

sources exceed the major source 

threshold. They stated that CAA section 

112 contains no restrictions on the gross 

quantity of emissions emitted from any 

major or area sources, nor does it 

outright prohibit stationary sources from 

undertaking activities that increase 

emissions. 

In the 2019 proposal, the EPA 

proposed specific criteria that PTE 

limits must meet for these limits to be 

effective. The EPA also proposed to 

amend the definition of ‘‘potential to 

emit’’ in 40 CFR 63.2 by removing the 

requirement for federally enforceable 

limits and requiring instead that limits 

meet the effectiveness criteria of being 

both legally enforceable and practicably 

enforceable. The EPA also proposed to 

amend 40 CFR 63.2 to include the 

definitions of ‘‘legally enforceable’’ and 

‘‘practicably enforceable’’ described in 

the MM2A proposal. The EPA then took 

comment on the effectiveness criteria 

and the proposed amendments to 40 

CFR 63.2. 


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16See note 6, supra. 

The EPA received significant 

comments from many stakeholders on 

the proposed effectiveness criteria and 

proposed amendments to 40 CFR 63.2. 

One of the main concerns raised by 

stakeholders in their comments was the 

interactions and effects of the proposed 

amendments with other CAA programs, 

including Prevention of Significant 

Deterioration (PSD), New Source 

Review (NSR), State Implementation 

Plan (SIP), and title V operating permits, 

and the impacts of the proposed 

amendments to existing state, local, and 

tribal agency rules. 

The EPA published the 2020 MM2A 

final rule (85 FR 73854) on November 

19, 2020, which formalized the 

withdraw of the OIAI policy first 

introduced in the 2018 MM2A 

Memorandum. The EPA did not take 

final action on the proposed 

amendments to 40 CFR 63.2 as it was 

still considering the comments received 

on the proposed effectiveness criteria 

and proposed amendments to 40 CFR 

63.2. In the final MM2A rule, the EPA 

expressed its intention to take action on 

this aspect of the MM2A proposal in a 

separate action at a later date. However, 

as part of the final MM2A rule, the EPA 

made an interim ministerial revision to 

the definition of ‘‘potential to emit’’ in 

40 CFR 63.2. Specifically, the Agency 

removed the word ‘‘federally’’ from the 

phrase ‘‘federally enforceable’’ that was 

in the 40 CFR 63.2 definition of 

‘‘potential to emit.’’ 

The EPA explained that this interim 

ministerial revision was not the EPA’s 

final decision and should not be read to 

suggest that the EPA was leaning 

towards or away from any particular 

final action on this aspect of the MM2A 

proposal. The revision was an interim 

revision to cover the period of time 

while the EPA continued to consider the 

comments on this aspect of the MM2A 

proposal and until the Agency takes 

final action with respect to the proposed 

effectiveness criteria and proposed 

amendments to 40 CFR 63.2. The EPA 

asserted that this revision was 

ministerial because it merely reflected 

the NMA decision, which held that the 

EPA had not explained why a PTE limit 

had to be ‘‘federally enforceable’’ to be 

considered as the basis for reclassifying 

a major source to area source status. See 

NMA v. EPA, 59 F.3d at 1363–1365.16

So, for the reasons explained in the final 

MM2A rule preamble, the revision to 

the PTE definition did not represent a 

final decision by the EPA. 

Further, the interim ministerial 

revision did not alter any rights or legal 

consequences and simply preserved the 

status quo that has been in effect since 

the late 1990s. The EPA expressly said 

that the interim ministerial revision did 

not change how the EPA applies the 

transitional policy that the Agency has 

been following since 1995. This 

transitional policy allows for any 

physical or operational limitation on the 

capacity of the stationary source to emit 

a pollutant (such as air pollution control 

equipment and restrictions on hours of 

operation or on the type or amount of 

material combusted, stored, or 

processed) to be treated as part of its 

design if the limitation or the effect it 

would have on emissions is federally 

enforceable or legally enforceable by a 

state or local permitting authority and 

practicably enforceable. The final 

MM2A rule became effective on January 

19, 2021. 

A significant concern raised during 

the 2020 MM2A rulemaking is that 

under the current MM2A framework, 

sources with adjustable controls can 

obtain PTE limits just below the major 

source thresholds to reclassify from 

major source status to area source status 

and reduce their control efficiency to 

reduce operational costs, and 

subsequently increase emissions, in a 

manner that would not have been 

allowed under the major source 

NESHAP. This possibility stems from 

the differences in stringency in major 

source rules compared to area source 

rules for the same source category. In 

short, major source NESHAPs require 

MACT standards that reduce emissions 

from all major sources in a category to 

the levels achieved by the best 

performers. In contrast, NESHAP 

standards for area sources allow for the 

use of GACT standards that often 

require less control of HAP than the 

corresponding MACT standards for 

major sources. In addition, GACT 

standards typically apply to a select 

group of HAP, known as urban HAP, 

rather than all listed HAP. Finally, 

unlike the residual risk requirements for 

sources subject to MACT standards, 

there is no requirement for the EPA to 

evaluate the public health risk that 

remains after implementation of GACT 

standards. These differences are most 

concerning for major source categories 

for which the area source NESHAP 

applies to fewer emission points and 

regulates fewer HAP than the major 

source rule or for which there is no 

NESHAP applicable to area sources at 

all. The current MM2A framework does 

not provide clear requirements for 

sources reclassifying in a source 

category with less stringent or no 

requirements for area sources, creating 

inconsistencies between sources in a 

given category based on their decision 

to reclassify or not, between sources 

across source categories based on the 

existence and stringency of area source 

NESHAPs, and between sources based 

on the robustness of the state or local 

regulations in the area where they are 

located. 

2. What is Executive Order 13990 and 

how does it impact this proposal? 

On January 20, 2021, President Biden 

issued Executive Order 13990 Protecting 

Public Health and the Environment and 

Restoring Science to Tackle the Climate 

Crisis. This E.O. called for the EPA to 

review actions taken during the prior 

four years and, as appropriate, consider 

suspending, revising, or rescinding 

actions that did not align with the 

Administration’s policy to listen to the 

science; to improve public health and 

protect our environment; to ensure 

access to clean air and water; to limit 

exposure to dangerous chemicals and 

pesticides; to hold polluters 

accountable, including those who 

disproportionately harm communities of 

color and low-income communities; to 

reduce greenhouse gas emissions; to 

bolster resilience to the impacts of 

climate change; to restore and expand 

our national treasures and monuments; 

and to prioritize both environmental 

justice and the creation of the wellpaying union jobs necessary to deliver 

on these goals. 

III. Proposed Criteria for MM2A 

Reclassifications 

In this action the EPA is proposing to 

update electronic reporting 

requirements for sources that reclassify 

from major to area sources, and to add 

requirements for sources to reclassify 

from major source to area source status 

to improve the effectiveness of PTE 

limits for these sources. Specifically, the 

EPA proposes to require safeguards to 

ensure that reclassified sources cannot 

increase their emissions as a result of 

reclassification, and to require PTE 

limits for reclassified sources be 

federally enforceable (i.e., enforceable 

by the EPA and citizens under the CAA 

or other federal statute). The EPA is 

proposing these additional criteria for 

reclassified sources, because of the 

EPA’s particular concern with this 

subset of sources which may be able to 

increase emissions as a result of 

reclassification. 

A. Electronic Notification and 

Reclassification Effective Date 

To provide information to the EPA 

and the public, 40 CFR 63.9(b) requires 

sources to notify the EPA when a source 

becomes subject to a relevant standard 


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17CAA section 112(a)(1) in defining ‘‘major 

source’’ provides that the EPA may establish a 

‘‘lesser quantity’’ threshold for major sources ‘‘on 

the basis of the potency of the air pollutant, 

persistence, potential for bioaccumulation, other 

characteristics of the air pollutant, or other relevant 

factors.’’ In addition, CAA section 112(d)(2) directs 

the EPA in promulgating emission standards to 

‘‘require the maximum degree of reduction in 

emissions of the hazardous air pollutants subject to 

this section (including a prohibition on such 

emissions, where achievable)[.]’’ 

and 40 CFR 63.9(j) requires sources to 

notify the Administrator when there is 

a change in the information previously 

submitted to the EPA. The notification 

requirements of 40 CFR 63.9(j) apply to 

those sources that reclassify from major 

source to area source status under CAA 

section 112 (e.g., by taking production 

or operation limits to reduce a source’s 

HAP emissions below the applicability 

threshold). Sources that reclassify are 

currently required to notify the EPA 

within 15 days after reclassification. 

The required notification must include 

information on the standard the source 

was reclassifying from and to (if 

applicable), along with the effective date 

of the reclassification. To ensure the 

availability of this information, the EPA 

requires electronic submission of such 

notifications. Sources that reclassify to 

area source status by taking limits to 

reduce HAP emissions are also currently 

required under 40 CFR 63.10 to keep 

records of applicability determinations 

on-site. We are clarifying that 

reclassifications that occur after the 

effective date of this action will be 

effective upon the date of electronic 

submittal of the notification to the EPA. 

This clarification will ensure that 

sources submit the required notification 

to the EPA when reclassification occurs. 

We have become aware of some sources 

that have reclassified and the required 

reclassification has not been submitted 

through CEDRI. In order to prevent this 

from continuing, we have determined 

that reclassifications will not be 

considered effective until notification 

has been submitted to the EPA. Sources 

that have already reclassified or 

reclassify prior to the effective date of 

this action and have not submitted the 

required electronic notification must 

submit electronic notification of 

reclassification to the EPA within six 

months of the effective date of this 

action. Reclassified sources that have 

already submitted electronic 

notification to the EPA do not need to 

resubmit the notification. The EPA 

expects these notification and 

recordkeeping requirements under 40 

CFR part 63 will assist the EPA in its 

oversight role under the CAA and be of 

minimal burden to the regulated 

community. 

Additionally, we are proposing to 

clarify the original intent of the 

language in 40 CFR 63.9(j) allowing the 

use of the application for 

reclassification to fulfill the 

requirements of notification to more 

clearly indicate that it must be 

submitted to the Compliance and 

Emissions Data Reporting Interface 

(CEDRI) and contain the information 

required in 40 CFR 63.9(j)(1) through 

(4). We are also proposing to update the 

procedures for submittal of confidential 

business information to include 

electronic submittal procedures. 

B. Sufficiency of Limits Taken To 

Reclassify 

In this proposal, the EPA is revisiting 

the sufficiency of restrictions on PTE 

relied upon for reclassification, i.e., 

what a source must do to be able to 

reclassify. The EPA proposes to require 

(1) additional criteria that a PTE limit 

must meet before it can serve as the 

basis for reclassification from major to 

area for CAA section 112 purposes and 

(2) federal enforceability of permit 

limits that are taken by sources to 

reclassify from major to area source 

status. The proposed additional criteria 

for PTE (referred to here as 

‘‘safeguards’’) would require a 

determination that a source reclassifying 

from major to area source status will not 

emit beyond what would have been 

allowed had the source maintained 

major source status. Federal 

enforceability would ensure that the 

EPA and citizens are able to enforce 

those permit limits taken to reclassify in 

federal court under the Clean Air Act or 

other statutes administered by the EPA. 

In proposing these changes, the EPA 

seeks to ensure that the opportunity for 

sources to reclassify from major to area 

for purposes of CAA section 112 does 

not undermine the emissions reductions 

intended by that program. 

Hazardous air pollutants pose public 

health risks at levels well below the 

major source thresholds (10/25 TPY), at 

times in very small quantities. Congress 

understood this fact in enacting CAA 

section 112 by directing the EPA to 

further reduce or eliminate HAP 

emissions where possible.17 Further, the 

EPA shares the concerns raised by 

commenters on the MM2A rulemaking 

that sources with adjustable controls 

that can reclassify by reducing 

emissions just below the major source 

threshold could subsequently increase 

emissions under less stringent, or 

nonexistent, area source regulations for 

a given source category. For example, if 

a major source standard had the effect 

of reducing emissions of a certain 

pollutant to 1 ton per year but there is 

no corresponding area source standard 

for the same source category, then a 

source could take a PTE limit of 9.9 tons 

per year of a single HAP or 24.9 tons per 

year of combined HAP emissions, thus 

increasing its emissions, and reclassify 

under the 2020 MM2A final rule. 

Indeed, every source in this 

hypothetical source category could do 

the same. In order to protect the public 

from the health risks of HAPs, and 

based on Congress’ intent to reduce 

harmful HAP emissions and regulate to 

the maximum extent achievable, the 

EPA proposes enhanced oversight, 

compliance assurance, and that national 

consistency be required for the 

reclassified sources via safeguards and 

federal enforceability of restrictions or 

limitations taken to otherwise avoid 

applicable requirements as a major 

source of HAPs under Part 63 to ensure 

such concerning scenarios do not occur. 

In prior rulemakings and guidance, 

the EPA has discussed the timing of 

when a source can reclassify from major 

to area source. Most recently in the 2020 

MM2A rule, the EPA adopted the 

position that the lack of a temporal 

limitation on whether a source qualifies 

as a major source under CAA section 

112(a)(1) refuted the EPA’s earlier OIAI 

policy. The EPA does not propose to 

reopen that conclusion here. However, 

as the EPA discussed in the 2019 

proposal to the MM2A rule, in addition 

to the timing of reclassification there is 

a separate question as to the sufficiency 

of the PTE limit taken to reclassify. 

The sufficiency of limitations on PTE 

taken to reclassify from major to area 

source status is governed by the 

definitions of ‘‘major source’’ and ‘‘area 

source’’ in CAA section 112(a)(1) and 

(2). Major sources are defined, in 

relevant part, as sources that can emit or 

have the potential to emit ‘‘considering 

controls,’’ 10 tons per year or more of 

any hazardous air pollutant or 25 tons 

per year or more of any combination of 

hazardous air pollutants. Area sources 

are in turn defined as any stationary 

source of hazardous air pollutants that 

is not a major source. Therefore, in 

determining what qualifies as an area 

source the EPA must consider the major 

source definition and how to ‘‘consider 

controls’’ the facility would rely upon to 

justify its status as an area source. The 

EPA proposes the most appropriate 

interpretation of ‘‘considering controls’’ 

is one that, on the one hand, does not 

undermine the purposes of CAA section 

112 by allowing sources to potentially 

increase HAP emissions while on the 

other hand also recognizes that the 

statute does not place an absolute time 

limit on the opportunity to reclassify. 


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18See H.R. Rep. No. 101–490, at 315 (1990) (‘‘In 

theory, [hazardous air pollutants] were to be 

stringently controlled under the existing Clean Air 

Act section 112. However, . . . only 7 of the 

hundreds of potentially hazardous air pollutants 

have been regulated by EPA since section 112 was 

enacted in 1970.’’); id. at 151 (noting that in 20 

years, the EPA’s establishment of standards for only 

seven HAP covered ‘‘a small fraction of the many 

substances associated . . . with cancer, birth 

defects, neurological damage, or other serious 

health impacts.’’) 

19For example, CAA section 112(f)(2) requires the 

EPA to promulgate standards under the risk review 

if necessary to ‘‘reduce lifetime excess cancer risks 

to the individual most exposed to emissions from 

a source in the category or subcategory to less than 

one in one million.’’ CAA section 112(f)(2). 

Similarly, the listing and delisting provisions in 

CAA section 112 focus on any adverse effects to 

human health, evidencing Congress’ concerns with 

protecting even the most exposed individuals. See 

e.g., CAA section 112(b) and (c). For further 

discussion of how the statutory design of CAA 

section 112 is meant to quickly secure large 

reductions in HAP emissions from stationary 

sources and Congress’ direction to the EPA 

emphasize that the EPA should regulate with the 

most exposed and most sensitive members of the 

population in mind in order to achieve acceptable 

levels of HAP emissions see 88 FR 13956, 13963– 

13966 (March 6, 2023). 

The former concern was first articulated 

in the 1995 OIAI policy, the latter in the 

2018 MM2A policy and subsequent 

rulemaking. 

Today’s proposal seeks to reconcile 

these objectives by recognizing that a 

facility subject to a MACT standard may 

reclassify at any time, while requiring a 

determination by the state or local 

permitting authority that doing so will 

not undermine the emissions reductions 

entailed by the MACT standard, and 

further ensuring limits taken to 

reclassify are effective by allowing for 

federal and citizen enforcement. The 

EPA proposes the best interpretation of 

the term ‘‘considering controls’’ in the 

definition of ‘‘major source’’ in CAA 

section 112 allows for this 

reconciliation. Specifically, the EPA is 

proposing that for a facility seeking to 

reclassify from major to area source 

status for purposes of a particular 

MACT standard, the ‘‘controls’’ that are 

determinative are those that are proven 

to be at least as effective at reducing 

emissions as the MACT standard to 

which the facility has been subject, and 

which are subject to federal enforcement 

as defined in 40 CFR 63.2. 

This interpretation of CAA section 

112(a)(1) is consistent with the D.C. 

Circuit decision NMA v. EPA, which 

recognized the word ‘‘controls’’ 

commonly refers to governmental 

restrictions but is ambiguous as used in 

the major source definition. 59 F.3d 

1351, 1362 (D.C. Cir. 1995) (‘‘It is 

common ground that Congress meant 

the word ‘controls’ to refer to 

governmental regulations and not, for 

instance, operational restrictions that an 

owner might voluntarily adopt. (We 

note, however, that the word could be 

read that broadly, which certainly 

supports the government’s position that 

the term is not clear on its face.)’’). 

Accordingly, in assessing a reclassified 

source, the EPA would determine 

whether safeguards and the 

enforceability of limits taken to 

reclassify, or governmental restrictions, 

are sufficient for the source to no longer 

qualify as a major source. 

In considering the term ‘‘controls,’’ 

the NMA court settled on the touchstone 

of ‘‘effectiveness,’’ faulting the EPA for 

not adequately explaining the 

relationship of federal enforceability to 

that core criterion. The Court explained 

that the EPA was ‘‘not obliged to take 

into account controls that are only 

chimeras and do not really restrain an 

operator from emitting pollution[,]’’ 59 

F.3d at 1362, but that the EPA’s 

determination of what constitutes 

appropriate ‘‘controls’’ should be tied to 

how well a limit actually restrains a 

facility’s operations in accordance with 

CAA section 112. Today’s proposal is 

based on this concept of ‘‘effectiveness,’’ 

and specifically on the reasoning that a 

limit taken to avoid a MACT standard 

to which a facility is already subject to 

cannot be considered an ‘‘effective’’ 

control if it results in the facility 

emitting more than it would have under 

the MACT standard. The EPA is also 

proposing that the enhanced 

effectiveness brought about by federal 

enforceability justifies the requirement 

that limits taken to avoid a MACT 

standard be federally enforceable. That 

is, the EPA is bolstering the 

effectiveness of PTE limits for 

reclassified sources by requiring sources 

to maintain historical emission 

reductions, and increasing the scope of 

enforcement to ensure PTE limits are 

met. The proposal thus employs the 

concept of ‘‘effectiveness’’ to avoid 

eroding the purposes of the Act, while 

recognizing the flexibility the EPA 

continues to believe exists for facilities 

to reclassify from major to area status for 

purposes of a MACT standard. 

Today’s proposal is also consistent 

with the purpose of the CAA in general 

and CAA section 112, in particular. The 

CAA is intended ‘‘to protect and 

enhance the quality of the Nation’s air 

resources so as to promote the public 

health and welfare and the productive 

capacity of its population.’’ CAA section 

101(b)(1). CAA section 112 was revised 

with the 1990 Clean Air Act 

Amendments after Congress was 

frustrated with the EPA’s slow pace of 

regulation for sources of hazardous air 

pollutants, which Congress recognized 

as a serious public health concern.18 In 

enacting CAA section 112, Congress set 

a broad statutory purpose to reduce the 

volume of HAP emissions with the goal 

of reducing the risk from HAP emissions 

to a level that is protective of even the 

most exposed and most sensitive 

subpopulations.19 Congress therefore 

established a program for major and area 

sources that would lead to continued 

reductions of HAP by requiring the EPA 

to set technology-based MACT 

standards pursuant to CAA section 

112(d)(2) and (3), to perform risk 

reviews under CAA section 112(f)(2) 

and to update MACT standards where 

they fail to provide an ample margin of 

safety, and to perform technology 

reviews pursuant to CAA section 

112(d)(6) to review and update, as 

necessary, MACT and GACT standards 

based on new developments in 

pollution control technology. Relatedly, 

CAA section 112(c)(6) required the EPA 

to identify and ensure emissions 

standards were in place for source 

categories that emit specific, 

particularly harmful HAP, and which 

were not initially covered following 

promulgation of the 1990 Clean Air Act 

Amendments. The structure of CAA 

section 112 thus includes specific 

points at which progress towards public 

health goals are to be assessed. These 

assessments depend in no small part on 

the extent to which major sources of 

HAP are regulated by MACT standards. 

While Congress did not speak directly to 

reclassification from major to area 

sources, the EPA proposes to find it 

would be contrary to the emission 

reduction and health protection 

objectives of the CAA and CAA section 

112 to allow sources to increase their 

emissions after reclassification. Doing so 

would serve to diminish as opposed to 

enhance air quality and could 

potentially lead to increased HAP 

emissions and thus increased public 

health risk from exposure. Moreover, 

CAA section 112(d)(2) directs the EPA 

in promulgating emission standards to 

‘‘require the maximum degree of 

reduction in emissions of the hazardous 

air pollutants subject to this section 

(including a prohibition on such 

emissions, where achievable)[.]’’ If a 

facility subject to the controls of a major 

source NESHAP can remove those 

controls by reducing its PTE to below 

the 10/25 TPY threshold, this 

substantially reduces the likelihood that 

Congress’ objective of prohibiting 

emissions can be achieved. 

This proposed framework would not 

apply to a source that has taken 

restrictions to limit PTE (i.e., a synthetic 

minor source) before the source’s first 


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20CAA section 112(c)(6) states, in part: ‘‘With 

respect to alkylated lead compounds, polycyclic 

organic matter, hexachlorobenzene, mercury, 

polychlorinated biphenyls, 2,3,7,8- 

tetrachlorodibenzofurans and 2,3,7,8- 

tetrachlorodibenzo-p-dioxin, the Administrator 

shall, not later than 5 years after November 15, 

1990, list categories and subcategories of sources 

assuring that sources accounting for not less than 

90 per centum of the aggregate emissions of each 

such pollutant are subject to standards under 

subsection (d)(2) or (d)(4).’’ 

compliance date of the applicable major 

MACT standard. The proposed 

sufficiency criteria for sources that 

reclassify from major sources to area 

sources (i.e., safeguards and federal 

enforceability) would be applicable to 

reclassified synthetic minor sources, 

that is sources that are or were subject 

to a major source NESHAP, have PTE 

over the major source threshold, and are 

taking a restriction so as to limit the PTE 

below the major source threshold. This 

proposed framework would not apply, 

however, to reclassified ‘‘true’’ minor 

sources—that is sources that modify 

operations such that they are no longer 

capable of emitting above the major 

source threshold; nor would it apply to 

sources that were never subject to a 

major source NESHAP. The EPA is 

specifically requesting comment on 

whether it is appropriate to differentiate 

between reclassified synthetic minor 

and true minor sources, particularly 

given the proposed justification in this 

proposal. 

This proposal for the EPA to 

introduce safeguards and federal 

enforceability for sources that reclassify 

from area to major source status also 

differs from the EPA’s former OIAI 

policy because it would continue to 

allow sources to reclassify consistent 

with the 2020 MM2A final rule; 

however, this proposal would introduce 

conditions that apply to reclassified 

sources through their permitting 

authority. The intent is to create 

flexibility to meet emission reduction 

goals that did not exist under the OIAI 

policy while preventing the potential 

emissions increases allowed under the 

current MM2A framework. 

Further, the EPA seeks comment on 

its proposed interpretation of 

‘‘considering controls’’ to ensure limits 

taken by sources to reclassify are 

sufficiently protective. 

1. Safeguards 

The EPA is proposing that for those 

sources that reclassify from major 

source to area source status under the 

NESHAP program, any limits relied 

upon as limiting PTE for operations 

subject to the NESHAP must ensure 

emissions do not increase beyond what 

would have been allowed if the 

reclassifying source had continued to be 

subject to the major source NESHAP. 

The proposed safeguards will apply to 

sources that reclassify after the effective 

date of this action, as well as those that 

have reclassified since the 2018 

Wehrum memorandum. 

Specifically, we are proposing to 

codify in a new paragraph, 40 CFR 

63.1(c)(6)(iv), that any federally 

enforceable HAP PTE limitations taken 

by a major source to reclassify to area 

source status must include one of the 

following control methods or a 

combination: (1) continue to employ the 

emission control methods (e.g., control 

device and/or emission reduction 

practices) required under the major 

source NESHAP requirements, 

including previously approved 

alternatives under the applicable 

NESHAP and associated monitoring, 

recordkeeping, and reporting (MRR); (2) 

control methods prescribed for 

reclassification under a specific 

NESHAP subpart; or (3) emission 

controls that the permitting authority 

has reviewed and approved as ensuring 

the emissions of HAP from units or 

activities previously covered will not 

increase above the emission standard or 

level that was acceptable under the 

major source NESHAP requirements at 

the time of reclassification. The record 

of the permitting authority decision 

should identify the units and methods 

and include the data and analysis as 

well as the determination that MRR is 

adequate to assure compliance. 

The EPA proposes the introduction of 

safeguards, coupled with federal 

enforceability, will help to ensure the 

NESHAP program continues to reduce 

emissions over time, and that sources 

subject to the NESHAP program are not 

able to increase their emissions beyond 

what the major source NESHAP would 

have allowed as a result of 

reclassification and/or evade permit 

limits that would otherwise prevent 

them from doing so. The EPA proposes 

safeguards are needed due to differences 

in EPA and state requirements for 

certain types of major and area NESHAP 

sources, which creates instances where 

it is feasible that two identical sources 

within a source category could have 

significantly different emissions 

requirements for a given pollutant if one 

remains a major source and the other 

reclassifies as an area source. This is 

particularly true in instances where 

there are no area source requirements 

for certain industries. 

Under this proposed definition, state 

and local permitting authorities would 

be charged with ensuring permitting 

limits taken for sources to reclassify 

from major to area source satisfy one of 

the three criteria listed above. That is, 

the permitting authority will determine 

that emissions for a reclassified source 

will not be above what they would have 

been had the source remained subject to 

the major source NESHAP. The EPA 

continues to consider and seeks 

comment on the specifics of how state 

and local permitting authorities should 

implement this definition and make 

such determinations. We are soliciting 

comments on whether the 

determination that a source will not 

emit above what would have been 

allowed under the major source 

NESHAP must be based on the same 

units of measure as the NESHAP had 

been (e.g., tons per year vs. pounds per 

hour). This will largely be a case-by-case 

decision that will rest partly on the type 

of measurements used, the method of 

control, and quantity of emissions in 

question. We are also soliciting 

comment on whether sources should be 

required to continue to comply with a 

specific emissions limit using a specific 

type of control, especially for sources 

subject to major source NESHAPs that 

allow for different control options. We 

are seeking comment on how to best 

structure safeguards to ensure that 

flexibility is provided to permitting 

authorities making these determinations 

to allow for improvements in control 

technology effectiveness or efficiency 

without compromising the emissions 

reductions achieved by the NESHAP. 

The EPA is seeking comment on 

additional benefits or drawbacks of 

safeguards for NESHAP 

reclassifications. The EPA is also 

seeking comment on other criteria that 

will improve the process by which 

sources apply for, and the permitting 

authority approves, enforceable permit 

conditions containing safeguard 

provisions. 

In light of the special attention 

Congress paid to specific pollutants 20 in 

section 112(c)(6) of the CAA, we are 

specifically seeking comment on 

whether additional restrictions are 

warranted for source categories that are 

subject to MACT standards for the 

persistent and bioaccumulative HAP 

listed pursuant to CAA section 

112(c)(6). We believe the proposed 

safeguards are sufficient to prevent 

emissions increases but we are seeking 

comment on whether any of the 

following additional restrictions are 

warranted to achieve Congress’s 

directive that source categories emitting 

these HAP are subjected to MACT 

standards under CAA section 112(d)(2) 

or (d)(4). The first possible restriction 

we are seeking comment on is one that 


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21See EPA–HQ–OAR–2004–0505–0010 for a list 

of source categories and corresponding NESHAP 

subparts used to reach the 90% threshold. See table 

1.1 of EPA–HQ–OAR–2004–0505–0006 for the 

112(c)(6) emission inventory. 

22 40 CFR 63.2 defines ‘‘federally enforceable’’ in 

relevant part as ‘‘all limitations and conditions that 

are enforceable by the Administrator and citizens 

under the Act or that are enforceable under other 

statutes administered by the Administrator.’’ 

23See P. Flynn & M. Barsa, State Citizen Suits, 

Standing, and the Underutilization of State 

Environmental Law, 52 Envtl. L. Rep. 10473 (June 

2022) (noting that 17 states have general, non-media 

specific citizen suit statutes, in addition to dozens 

of media specific state citizen suit laws). 

would prevent any sources 21 subject to 

a major source NESHAP used to reach 

the EPA’s 90 percent threshold for any 

of the CAA section 112(c)(6) HAP from 

reclassifying from major source status to 

area source status. Another restriction 

we are considering and seeking 

comment on is one that would require 

sources subject to a major source 

NESHAP to remain subject to the major 

source NESHAP for emissions of the 

section 112(c)(6) HAP while allowing 

those sources source to reclassify and no 

longer remain subject to the major 

source NESHAP for emissions of non112(c)(6) HAP. Finally, we are 

considering a restriction that would 

allow such sources to reclassify but 

would only allow them to use the 

proposed option in 40 CFR 

63.(1)(c)(6)(iv) that requires a source to 

‘‘continue to employ the emission 

control methods (e.g., control device 

and/or emission reduction practices) 

required under the major source 

NESHAP requirements, including 

previously approved alternatives under 

the applicable NESHAP and associated 

monitoring, recordkeeping, and 

reporting (MRR)’’. We are seeking 

comment on all of these additional 

criteria and any other restrictions on 

sources or source categories emitting 

112(c)(6) HAP that may be warranted. 

2. Federal Enforceability 

In addition to safeguards, the EPA 

also proposes that limits taken by 

sources to reclassify from major to area 

sources must be federally enforceable as 

a condition of reclassification.22

Specifically, we are proposing to codify 

in a new paragraph, 40 CFR 

63.1(c)(6)(iii), that, as a condition of 

reclassification, any PTE limitations 

taken by a major source to reclassify to 

area source status must be federally 

enforceable. The general definition of 

PTE under 40 CFR 63.2 would not be 

affected by this proposal to codify a new 

provision specific to reclassified 

sources, and as discussed in the 

following subsection, the EPA proposes 

to maintain interim revisions 

introduced to the general definition in 

the 2020 MM2A final rule. That is, 

under this proposal, sources that 

reclassify from major to area source 

status, would need to take federally 

enforceable limitations on PTE as a 

condition of reclassification. However, 

all other NESHAP sources would 

continue to be governed by the general 

PTE definition under 40 CFR 63.2, 

which does not require federal 

enforceability. 

As discussed above, in NMA v. EPA, 

the D.C. Circuit faulted the EPA for not 

adequately explaining the relationship 

of federal enforceability to the core 

criteria of ‘‘effectiveness.’’ In that case, 

the EPA argued that federal 

enforceability allowed the EPA to verify 

that a source’s claimed controls were 

working as they were supposed to, and 

that federal enforceability provided the 

EPA with the means to ensure that any 

operational restrictions intended to 

limit emissions were actually 

implemented. In response to these 

arguments, the NMA Court found 

‘‘EPA’s core justification for its federal 

enforceability policy [was] the need to 

avoid the administrative burden that 

EPA would have to bear were it obliged 

to evaluate the effectiveness of state and 

local controls and the desirability of 

uniformity in environmental 

protection. . . If there [was] a closer fit 

between the notion of ‘federal 

enforceability’ and § 112’s concerns 

with crediting effective controls,’’ it was 

‘‘not evident’’ from the record before the 

Court. 59 F.3d at 1364. Today’s proposal 

is based on the EPA’s assessment that 

federal enforceability of limits for 

reclassified sources significantly 

enhances the effectiveness of controls 

because limits taken by sources to 

reclassify that are enforceable by the 

federal government and citizens, in 

addition to state and local permitting 

authorities, are more likely to ensure 

compliance. Simply put, ensuring that 

more entities can bring an enforcement 

action if a source violates a PTE limit, 

i.e., EPA, States, Tribes, local 

government agencies, and citizen 

groups, will make the limit more 

effective in controlling HAP emissions. 

In the absence of federal 

enforceability for reclassified sources, 

the public is reliant on state and local 

permitting authorities, and citizen 

groups in certain jurisdictions, to ensure 

sources comply with PTE limits. While 

the EPA maintains that state and local 

enforcement can be an effective means 

for ensuring compliance with PTE limits 

for other NESHAP sources and CAA 

programs (e.g., NSR and title V), given 

the EPA’s heightened concerns 

surrounding reclassified sources, the 

EPA proposes that additional oversight 

is appropriate to increase the 

effectiveness of controls for reclassified 

sources. PTE limits for reclassified 

sources are integral to ensure these 

sources are properly classified and are 

subject to the appropriate federal CAA 

section 112 requirements. While the 

EPA intends to address PTE limits more 

generally in a separate rulemaking as 

discussed further below, this proposed 

rulemaking is specific to NESHAP 

sources that have reclassified from 

major to area sources, or will do so in 

the future. 

In addition to EPA enforcement, 

citizen enforcement is another 

important component of federal 

enforceability that EPA proposes will 

enhance enforcement for reclassified 

source limits. There is considerable 

variability for citizens to participate in 

the state and local enforcement of 

permit terms and other measures to 

limit emissions across state and local 

jurisdictions. Whereas Congress granted 

considerable enforcement authority to 

citizens under the CAA and other 

environmental statutes, the ability of 

citizens to participate in state- and 

local-only enforcement proceedings is, 

generally speaking, very limited. The 

EPA’s current understanding is that 

around one third of states allow for 

general environmental citizen suits, 

which are in addition to various mediaspecific state citizen suit statutes, which 

provide varying degrees of effectiveness 

for enforcing permit limits for 

reclassified sources at issue in this 

proposal.23 Accordingly, in many 

instances, state and local permitting 

authorities are the only means of 

enforcement. To help ensure that 

reclassifying sources do not erode the 

goals of the CAA section 112 program, 

the EPA proposes the ability for citizens 

to enforce permits for such sources is 

needed. The EPA is seeking comment 

on the prevalence and effectiveness of 

citizen suit provisions in state and local 

enforceable HAP PTE limiting programs. 

Further, because of limitations on the 

EPA’s and state and local enforcement 

authorities’ budgets and resources and 

variability in priorities between state 

and local regulators and the EPA, the 

ability for citizen enforcement of limits 

for reclassified sources adds an 

important component of an effective 

enforcement regime. 

The potential for federal enforcement 

for reclassified source limits provides an 

additional incentive for facilities to 

comply, ensures consistency in 

protection across jurisdictions, and 

thereby enhances the effectiveness of 

controls. This is evidenced in the broad 


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24See e.g., Murphy Oil v. EPA, 143 F.Supp.2d 

1054 (W.D. Wis. 2001) (holding in part, the EPA 

was entitled to pursue an enforcement action under 

the CAA against a facility despite a prior settlement 

with the state for a related violation); United States 

v. SCM Corp., 615 F. Supp. 411 (D. Md. 1985) 

(holding the EPA could pursue enforcement against 

a facility for CAA violations after the same facility 

reached a settlement with the state regulator for 

related violations, explaining ‘‘[i]n a federal system, 

each person and entity is subject to simultaneous 

regulation by state and national authority’’); see also 

Buckeye Power, Inc. v. EPA, 481 F.2d 162, 167 (6th 

Cir. 1973) (‘‘it is important to note [delegation to the 

state] does not detract from the Administrator’s 

primary ability to enforce federally the provisions 

of every state plan against citizens of that state 

which drew the plan.’’); cf. U.S. v. Power 

Engineering Co., 3030 F.3d 1232 (10th Cir. 2002) 

(deferring to the EPA’s reasonable interpretation 

that the Resource Recovery and Conservation Act 

(RCRA) allows for the EPA to pursue an 

enforcement action despite the existence of a 

separate state enforcement proceeding). 

25 Increased enforcement leading to 

improvements in compliance is supported by the 

scientific literature. Gray and Shimshack (2011) 

survey the literature and find that rigorous 

monitoring and enforcement is a primary motivator 

for compliance with environmental regulatory 

requirements. The authors find that enforcement 

activities can lead to less violations and reductions 

in emissions. Gray, W.B., & Shimshack, J. P. (2011). 

The effectiveness of environmental monitoring and 

enforcement: A review of the empirical evidence. 

Review of Environmental Economics and Policy. 

26For example, courts may exercise the ‘‘Burford 

doctrine’’ under which a federal court may decline 

to interfere with state proceedings: ‘‘(1) when there 

are difficult questions of state law bearing on policy 

problems of substantial public import whose 

importance transcends the result in the case then 

at bar; or (2) where the exercise of federal review 

of the question in a case and in similar cases would 

be disruptive of state efforts to establish a coherent 

policy with respect to a matter of substantial public 

concern.’’ New Orleans Public Service, Inc. v. 

Council of City of New Orleans, 491 U.S. 350 (1989) 

(internal citations omitted). 

oversight authority to enforce the CAA 

that Congress granted to the EPA. Courts 

have recognized the EPA’s ability to act 

to enforce the CAA even when a state 

has already acted.24 The greater number 

of agencies or persons that can enforce 

the requirements, the greater the 

likelihood is that some action will be 

brought.25 Indeed, federal enforceability 

enables the EPA to ensure that sources 

are abiding by the conditions they have 

adopted to opt out of federal major 

source standards; and grants citizens the 

ability to use the tools Congress 

provided in the CAA for the same goal. 

Federal enforcement for reclassified 

sources creates a clear regulatory 

structure for EPA and citizen 

enforcement through the CAA and 

produces a level playing field on which 

sources are subject to the same 

enforcement mechanisms regardless of 

the state in which they are located. 

In contrast, state-only enforceability 

for reclassified source limits creates 

significant burdens on the EPA if it were 

to attempt to enforce a violation of such 

a limit. In such instances, the EPA 

would either have to (1) litigate any 

enforcement issues of PTE limits taken 

to reclassify to an area source as a 

general citizen in the state forum (which 

is only available in states with citizen 

suit provisions that the EPA could 

utilize) or (2) only bring cases for 

violations of major source requirements 

(as opposed to permit limit exceedances 

that do not cross the major source 

threshold). State-only enforcement 

eliminates the EPA’s use of the 

administrative enforcement powers 

granted by Congress that have been an 

effective and resource-saving means to 

bring sources into compliance without 

mounting a full effort enforcing a 

violation of the major source 

requirements. Enforcing the 

requirements of a major source MACT 

in the face of a facially valid state-only 

enforceable permit or permit limit that 

grants the same source area source 

status by saying a source cannot exceed 

9.9 tpy of any HAP (which the EPA does 

not consider enforceable as a practical 

matter as a blanket emission limit alone) 

could create conflicts between what 

limits a state interprets as sufficient to 

avoid major source MACT requirements 

and what limits the EPA interprets as 

enforceable as a practical matter (e.g., a 

limit of 9.9 tpy on total HAP by itself 

is not enforceable as a practical matter). 

In such an instance a federal court may 

not be willing to entertain the conflict 

between the state and EPA in the permit 

challenge and e.g., dismiss the claim on 

the grounds of abstention, or remove the 

permit challenge to state court which 

may defeat the goal of national 

consistency of this federal program 

envisioned by Congress through federal 

court oversight. Furthermore, challenges 

to a facially-valid, state-only enforceable 

permit or permit term could create 

fairness issues (e.g., reliance on a state’s 

permitting decision) that a source could 

use in its defense that may prevent the 

EPA or citizens from even pursuing the 

enforcement.26 Federal enforceability 

will help ensure that the safeguard 

provisions being proposed in this action 

are enforced for sources that reclassify. 

The public notice and comment 

requirements included in 40 CFR part 

63, subpart E provide an additional 

layer of transparency and accountability 

in creating HAP PTE limiting 

mechanisms used to measure 

compliance after reclassification to 

ensure they will contain sufficient 

information to assure compliance. The 

subpart E process does include 

requirements for public notice and 

comment when programs are submitted 

to the EPA for review and approval. The 

EPA is seeking comment on the need, 

associated burdens, and time required 

for public notice and comment beyond 

the process already present in 40 CFR 

part 63, subpart E. Specifically, we are 

seeking comments on whether the EPA 

should require, as an additional 

condition of reclassification, that every 

permit containing the provisions 

required in this proposal used to 

reclassify from a major source of HAP to 

an area source of HAP should undergo 

an individual public notice and 

comment period. Additionally, we are 

seeking comment on the public’s 

understanding of the public notice and 

comment process involved in 40 CFR 

part 63, subpart E. 

For these reasons, we are proposing 

that limits taken by sources to reclassify 

from major source to area source must 

be federally enforceable as defined in 40 

CFR 63.2. We are seeking comment on 

additional benefits or drawbacks of 

federal enforceability for NESHAP 

reclassifications. 

C. Ministerial Revisions From the 2020 

MM2A Final Rule 

In the 2020 MM2A final rule, the EPA 

introduced an interim ministerial 

revision to the definition of ‘‘potential 

to emit’’ in 40 CFR 63.2 to remove the 

word ‘‘federally’’ from the phrase 

‘‘federally enforceable.’’ As the EPA 

noted at the time, the revisions did not 

represent a final decision by the EPA or 

signal any direction that the EPA is 

intending to take in a future final action. 

The EPA is not revisiting this interim 

revision at this time. As noted in the 

previous section, the EPA’s proposal to 

introduce federal enforceability for 

reclassified sources is being proposed as 

a separate provision from the 40 CFR 

63.2 ‘‘potential to emit’’ definition, such 

that it would only apply to reclassified 

sources. 

In this proposal, the EPA is solely 

focused on ensuring the sufficiency of 

permit limits for sources that reclassify 

from major to area sources. Accordingly, 

the EPA is not revisiting the interim 

ministerial revision to the definition of 

‘‘potential to emit’’ in 40 CFR part 63 

and will address the definition of PTE 

under 40 CFR part 63 in a separate 

rulemaking or guidance. Nor is the EPA 

addressing federal enforceability of PTE 

limits taken by other NESHAP sources 

(i.e., sources that are not reclassified 

sources), nor sources in other programs 

such as NSR or title V, for which the 

EPA previously introduced federally 

enforceable limits, but which may 

currently be subject to legally and 

practically enforceable state-law PTE 

limits. See NMA v. EPA, 59 F.3d 1351 

(D.C. Cir. 1995) (remanding but not 

vacating federal enforceability of PTE 


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27 John Seitz and Robert Van Heuvelen, ‘‘Release 

of Interim Policy on Federal Enforceability of 

Limitations on Potential to Emit’’ (January 22, 

1996). 

28See, e.g., John Seitz and Robert Van Heuvelen, 

‘‘Release of Interim Policy on Federal Enforceability 

of Limitations on Potential to Emit’’ (January 22, 

1996); John S. Seitz, ‘‘Options for Limiting the 

Potential to Emit (PTE) of a Stationary Source 

Under Section 112 and Title V of the Clean Air Act’’ 

(January 25, 1995); Kathie Stein, ‘‘Guidance on 

Enforceability Requirements for Limiting Potential 

to Emit through SIP and § 112 Rules and General 

Permits’’ (January 25, 1995); and Terrell E. Hunt 

and John S. Seitz, ‘‘Limiting Potential to Emit in 

New Source Permitting’’ (June 13, 1989); ‘‘In the 

Matter of Salt River Project Agricultural 

Improvement and Power District Aqua Fria 

Generating Station,’’ Order on Petition No. IX– 

2022–4 (July 28, 2022); ‘‘In the matter of: Yuhuang 

Chemical Inc. Methanol Plant,’’ Order on Petition 

No. VI–2015–03 (Aug. 31, 2016). See also 40 CFR 

49.167, definition of ‘‘Enforceable as a Practical 

Matter.’’ 

limits for NESHAP sources); CMA v. 

EPA, 70 F.3d 637 (D.C. Cir. 1995) 

(remanding and vacating federal 

enforceability of PTE limits for NSR 

sources); Clean Air Implementation 

Project v. EPA, 1996 WL 393118 (D.C. 

Cir. June 28, 1996) (remanding and 

vacating federal enforceability of PTE 

limits for title V sources). The EPA 

plans to address the definition of PTE in 

the NESHAP, NSR, title V, and related 

programs in separate rulemaking or 

guidance. In the interim, before the EPA 

completes the future rulemaking or 

guidance on the definition of PTE across 

affected programs, the EPA’s 

longstanding interpretation of the court 

decisions cited previously, and 

associated policy, remains in effect. 

Specifically, pursuant to the EPA’s 

guidance the terms ‘‘federally 

enforceable’’ or ‘‘enforceable’’ as used in 

general definitions of ‘‘potential to 

emit’’ and related terms should be read 

to mean ‘‘federally enforceable or legally 

and practicably enforceable by a state or 

local air pollution control agency.’’ 27

Note, this interpretation does not apply 

to the term ‘‘federally enforceable’’ as it 

is being introduced in this proposal as 

a condition for NESHAP sources to 

reclassify from major to area source 

status. Furthermore, to be eligible for 

consideration in determining PTE, any 

limitations, whether federally 

enforceable or not, must be enforceable 

as a practical matter, meaning both 

legally and practicably enforceable. To 

be practicably enforceable, limitations 

or standards used to constrain PTE 

must: (1) be technically accurate and 

specify the portions of the source 

subject to the limitation or standard; (2) 

specify the time period for the 

limitation or standard (e.g., hourly, 

daily, monthly and/or annual limits 

such as rolling annual limits); and (3) 

include a method for determining 

compliance, including appropriate 

monitoring, recordkeeping, and 

reporting.28

The EPA acknowledges that 

terminology referring to enforceability 

principles in EPA rules and guidance— 

such as the Agency’s use of the terms 

‘‘federally enforceable,’’ ‘‘enforceable as 

a practical matter,’’ and ‘‘legally and 

practicably enforceable’’—has varied 

somewhat historically. The EPA 

specifically solicits comment on 

terminology used both in this notice and 

historically and welcomes suggestions 

for maximizing clarity for regulated 

entities and the public. 

D. What sources will have to ensure all 

new requirements are met and when 

will those sources need to comply with 

the new requirements? 

The proposed requirements, once 

finalized, will apply to any sources that 

reclassify from major source status to 

area source status under the NESHAP 

program, including those that have 

already reclassified since issuance of the 

January 25, 2018, Wehrum 

Memorandum. For sources that have 

reclassified from major source status to 

area source status since January 25, 

2018, under the NESHAP program and 

prior to the effective date of the final 

rule, the changes to 40 CFR part 63 

proposed in this action will be effective 

within 3 years of publication of the final 

rule. Specifically, sources who 

reclassified from major source status to 

area source status since January 25, 

2018 must have federally enforceable 

permit conditions including the 

safeguards proposed in this action 

within three years of publication of the 

final rule in order to maintain area 

source status. We are specifically 

seeking comment on whether to apply 

the proposed requirements to sources 

that have reclassified since the January 

2018 Wehrum memo or whether this 

action should only apply to sources that 

reclassify after the effective date of the 

final rule. We request comments on the 

impacts of coming into compliance with 

the proposed requirements for sources 

that have reclassified since the January 

2018 Wehrum memo. For those sources 

that reclassify after the effective date of 

the final rule, the proposed 

requirements will be effective upon 

reclassification. The process by which 

state air pollution control agencies can 

submit HAP PTE limiting mechanisms, 

such as rule adjustments, rule 

substitutions, equivalency by permit, or 

other mechanisms is described in 40 

CFR part 63, subpart E for EPA review 

and approval. Programs that are 

approved pursuant to subpart E are 

federally enforceable and subpart E 

describes the necessary criteria for state 

programs that contain adjustments to 

CAA section 112 rules, state programs 

that substitute for CAA section 112 

rules, and permit terms and conditions 

that substitute for CAA section 112 

rules. We are seeking comment on the 

experience state agencies have had 

getting federally enforceable HAP PTE 

limiting mechanisms approved under 

subpart E and any potential hurdles that 

have prevented or would prevent state 

air pollution control agencies from 

submitting mechanisms for approval 

under 40 CFR part 63, subpart E. We are 

also seeking comment on the cost 

incurred by state air pollution control 

agencies to obtain subpart E approved 

programs. Given the timelines for EPA 

review and approval of state programs 

seeking approval for federally 

enforceable HAP PTE limiting 

mechanisms in subpart E, the EPA 

proposes that three years from 

publication of the final rule is sufficient 

time for sources who have chosen to 

reclassify to obtain federally enforceable 

HAP PTE limiting permit conditions. 

The EPA is seeking comment on the 

time needed for sources that have 

already reclassified to add such 

provisions as enforceable permit 

conditions, to the extent that they do 

not already exist. 

IV. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is a ‘‘significant regulatory 

action’’ as defined in Executive Order 

12866, as amended by Executive Order 

14094. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for Executive Order 

12866 review. Documentation of any 

changes made in response to the 

Executive Order 12866 review is 

available in the docket. 

The EPA has not prepared a 

quantitative analysis of the potential 

costs and benefits associated with this 

action because it is highly uncertain 

which facilities may reclassify in the 

future as a result of the proposed rule, 

and any potential emissions changes 

that result from the added 

reclassification requirements will also 


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29 In the Regulatory Impact Analysis for the 2020 

MM2A Final Rule, the EPA assumed in the primary 

scenario that all facilities under 75% of the major 

source HAP emissions threshold that could 

potentially reclassify would over a 5-year time 

period from promulgation (2,700 facilities). While 

we are still within that time frame, the EPA has not 

seen nearly that many reclassifications occuring 

since the rule was promulgated. At the time of this 

proposal, around 200 facilities have reclassified. 

This represents over 90% fewer reclassifications 

than our estimate in the 2020 final rule. A list of 

facilities that have reclassified from major source to 

area source status at the time of proposal is 

available in the docket for this action. Therefore, we 

find the uncertainty in attempting to predict facility 

reclassification behavior to be too great to warrant 

an illustrative quantitative assessment of the 

proposed rule. 

30 Illustrative example costs for a regulatory 

authority reviewing a source’s application for area 

source status was estimated in the 2020 MM2A 

final rule, which is available in the docket for this 

action. 

be highly uncertain.29 Furthermore, the 

EPA does not expect substantial costs 

for sources that have already reclassified 

and have not observed emission changes 

following a reclassification for this 

subset of facilities. Based on data 

available to the agency at this time, 

sources that have reclassified are 

unlikely to remove control devices to 

reduce HAP or take other actions that 

would increase HAP emissions. 

However, under the current framework, 

sources that reclassify in the future 

could operate in a manner that would 

increase emissions. This would be 

inconsistent with the aim of CAA 

section 112 to achieve lasting emissions 

reductions across a wide range of 

industries to protect public health and 

the environment. 

Prior to 2018, the OIAI policy 

prevented major sources of HAP from 

reclassifying to area sources of HAP 

after the first substantive compliance 

date of a major source NESHAP. The 

OIAI policy was initially replaced by a 

January 25, 2018, guidance document, 

then was formally codified by the 2020 

MM2A final rule wherein EPA 

advocated for a reading of the CAA that 

suggests that there should be no 

temporal restrictions on 

reclassifications. 

The 2018 guidance memo and 2020 

MM2A final rule allow facilities to 

reclassify from major sources of HAP to 

area sources of HAP at any time. Since 

2018, about 200 facilities have 

reclassified, far short of the roughly 

2,700 facilities we estimated might 

reclassify at the time of the 2020 final 

rule. Due to limited data available to the 

agency at the time of this proposal, the 

EPA does not have information 

regarding whether or how much 

emissions may have increased at any 

individual reclassified facilities— 

though we seek comment on that in this 

proposal. However, the current 

framework allows for emissions 

increases and decreased compliance 

assurance as all sources are required to 

do is obtain a PTE limit below the major 

source thresholds. We are requesting 

comment on specific examples of 

facilities that have had changes in actual 

emissions since reclassifying. The EPA 

has not heard about specific additional 

facilities’ plans to reclassify that have 

not yet done so, but we seek comment 

on facilities that have considered 

reclassification but not yet done so and 

their reasons for waiting. However, it is 

reasonable to assume that additional 

reclassifications will occur over time. In 

the first half of 2023, there have been 

between zero and two reclassifications 

per month. We have added the list of 

reclassifications that have occurred to 

date at the time of this proposal to the 

docket for this action. 

Currently, sources that reclassify are 

only required to remain below the major 

source threshold unless they become 

subject to an area source NESHAP, 

which they would have to comply with 

if it requires more stringent controls 

than would be needed to keep emissions 

below the major source threshold. That 

could lead to increased HAP emissions 

from sources whose emissions were 

well below the major source threshold 

due a major source NESHAP prior to 

reclassification in the absence of this 

rule. The EPA seeks to ensure that a 

reclassified source does not increase 

emissions because we find that scenario 

runs counter to CAA section 112’s goal 

of achieving lasting reductions of HAP 

emissions from major sources, as 

described earlier in this preamble. 

We do not expect significant costs and 

whether any costs or savings are 

incurred due to reclassification is very 

case-specific. We do not possess 

sufficient information to quantify costs 

or cost savings for individual facilities 

but seek comment on costs or cost 

savings. The costs incurred for a given 

facility are better attributed to the 

individual NESHAP rules the facility 

was subject to prior to reclassification 

rather than the General Provisions of 

part 63. Any potential costs for facilities 

in the future that may choose to 

reclassify are expected to be negligible 

for sources that have not yet reclassified 

and we do not expect sources to 

reclassify if it will increase their costs. 

The final MM2A rule already required 

electronic notification to the EPA and 

we are not requiring those sources who 

have already submitted notifications to 

resubmit their notification. We are 

seeking comments from sources who 

have already reclassified and 

information about changes in air 

pollution control devices at these 

facilities such that costs would be 

incurred to maintain emissions at a 

level that was achieved when the source 

was previously subject to a major source 

NESHAP. 

We expect that sources that reclassify 

will experience cost savings that will 

outweigh any additional cost of 

achieving area source status. The only 

potential costs that would be incurred 

by sources and regulatory authorities 

would be the costs of preparing and 

reviewing a source’s application for area 

source status and issuing enforceable 

PTE limits, respectively, as 

appropriate.30 In addition, any potential 

costs associated with the reclassification 

of major sources as area sources (i.e., 

application reviews and PTE issuance) 

may be offset by reduced reporting and 

recordkeeping obligations for sources 

that no longer must meet major source 

NESHAP requirements, depending on 

case-specific circumstances. Whether 

any cost or cost savings is incurred by 

any source choosing to reclassify is 

highly case specific and we are not 

providing quantitative estimates of costs 

in this proposal, however, we have 

included technical memoranda (e.g., 

MM2A Cost Memorandum) for the 2020 

final MM2A rule and the regulatory 

impact analysis (RIA) from that 

rulemaking in the docket for this action 

to provide illustrative examples of the 

types of costs and costs savings that may 

occur due to reclassifications. We are 

seeking comments on the potential costs 

or cost savings associated with this 

proposal and our assumption that any 

changes to the costs associated with 

reclassification will be negligible. 

While the EPA does not expect this 

action to directly impact the level of 

control of any particular NESHAP 

standards, this proposal is expected to 

enhance transparency, promote national 

consistency in EPA and citizen 

enforcement, and improve compliance 

assurance through clearer criteria for 

NESHAP reclassifications. The 

processes by which state programs and 

permits are approved under 40 CFR 

subpart E, includes requirements for 

public notice and comment as well as 

creating programs and permits that are 

federally enforceable by the EPA and 

citizens. These additional layers of 

oversight increase the likelihood that 

sources will continue to effectively 

operate HAP pollution control 

equipment and create a framework for 

the EPA and citizens to pursue 

enforcement actions if they do not. 

Additionally, the EPA finds that the 

safeguards proposed in this action will 

ensure that HAP emissions reductions 


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are achieved, and the corresponding 

public health and environmental 

benefits from decreased HAP emissions, 

are maintained at sources that reclassify 

from major sources of HAP to area 

sources of HAP. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA. The proposed amendments to the 

General Provisions relate to voluntary 

actions taken by a source after 

consideration of the net impacts of the 

action. Therefore, this action would not 

impose any new information collection 

burden. The General Provisions do not 

themselves require any reporting and 

recordkeeping activities, and no ICR 

was submitted in connection with their 

original promulgation or their 

subsequent amendment. Any 

recordkeeping and reporting 

requirements are imposed only through 

the incorporation of specific elements of 

the General Provisions in the individual 

NESHAP, which are promulgated for 

particular source categories that have 

their own ICRs. The PRA costs for 

sources that reclassify will be properly 

accounted for in the ICRs for the 

NESHAPs they were subject to. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the EPA concludes that 

the impact of concern for this rule is any 

significant adverse economic impact on 

small entities and that the agency is 

certifying that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

because the rule relieves regulatory 

burden or has no net burden on the 

small entities subject to the rule. 

Small entities that are subject to major 

source NESHAP requirements would 

not be required to take any action under 

this proposed rule; any action a source 

takes to reclassify as an area source 

would be voluntary. We expect that 

sources that reclassify will experience 

cost savings that will outweigh any 

additional cost of achieving area source 

status. We do not expect substantial 

costs for sources that have already 

reclassified. Sources that reclassify are 

unlikely to remove control devices to 

reduce HAP or take other actions that 

would increase HAP emissions, 

however, the possibility does exist 

under the current framework. The final 

MM2A rule already required electronic 

notification to the EPA and we are not 

requiring those sources who have 

already submitted notifications to 

resubmit their notification. We are 

seeking comments on whether sources 

who have already reclassified have 

indeed removed control devices such 

that costs would be incurred to maintain 

emissions at a level that was achieved 

when the source was previously subject 

to a major source NESHAP. The only 

potential cost that would be incurred by 

regulatory authorities would be the cost 

of reviewing a sources’ application for 

area source status and issuing 

enforceable PTE limits, as appropriate. 

No small government jurisdictions 

operate their own air pollution control 

permitting agencies, so none would be 

required to incur costs under the 

proposed rule. In addition, any costs 

associated with the reclassification of 

major sources as area sources (i.e., 

application reviews and PTE issuance) 

are expected to be offset by reduced 

reporting and recordkeeping obligations 

for sources that no longer must meet 

major source NESHAP requirements. 

Whether any cost or cost savings is 

incurred by any source, including those 

owned by a small parent company, 

choosing to reclassify is highly case 

specific and we are not providing 

quantitative estimates of costs in this 

proposal, however, we have included 

technical memoranda from the 2020 

final MM2A rule and the regulatory 

impact analysis (RIA) from that 

rulemaking in the docket for this action 

to provide illustrative examples of the 

types of costs and cost savings that can 

occur due to reclassifications. We are 

seeking comments on the potential costs 

or cost savings associated with this 

proposal and our assumption that the 

any changes to the costs associated with 

reclassification will be negligible. 

Based on the considerations above, 

we have, therefore, concluded that this 

action will relieve regulatory burden on 

net for any regulated small entities that 

choose to reclassify to area source 

status. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. This 

action 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 effects on the states, on the 

relationship between the federal 

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 has tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

federally recognized tribal governments, 

nor preempt tribal law. There are two 

tribes that currently implement title V 

permit programs and one that 

implements an approved TIP for minor 

source permitting, the latter of which 

also has a major source. As a result, 

these tribes may have additional permit 

actions if sources in their jurisdiction 

seek reclassification to area source 

status. Any tribal government that owns 

or operates a source subject to major 

source NESHAP requirements would 

not be required to take action under this 

final rule; the reclassification provisions 

in the final rule would be strictly 

voluntary. In addition, achieving area 

source status would result in reduced 

burden on any source that no longer 

must meet major source NESHAP 

requirements. Under the proposed rule, 

a tribal government with an air 

pollution control agency to which we 

have delegated CAA section 112 

authority would be required to review 

permit applications and to modify 

permits as necessary. However, any 

burden associated with the review and 

modification of permits will be offset by 

reduced Agency oversight obligations 

for sources no longer required to meet 

major source requirements. 

For sources located within Indian 

country, where the EPA is the reviewing 

authority, unless the EPA has approved 

a non-federal minor source permitting 

program or a delegation of the Federal 

Indian Country Minor NSR Rule, the 

Federal Indian Country Minor NSR Rule 

at 40 CFR 49.151 through 49.165 

provides a mechanism for an otherwise 

major source to voluntarily accept 

restrictions on its PTE to become a 

synthetic source, among other 

provisions. The Federal Indian Country 

Minor NSR Rule applies to sources 

located within the exterior boundaries 

of an Indian reservation or other lands 

as specified in 40 CFR part 49, 

collectively referred to as ‘‘Indian 

country.’’ See 40 CFR 49.151(c) and 

49.152(d). This mechanism may also be 

used by an otherwise major source of 

HAP to voluntarily accept restrictions 

on its PTE to become a synthetic area 

HAP source. The EPA’s Federal 

Implementation Plan (FIP) program, 

which includes the Federal Indian 

Country Minor NSR Rule, provides 

additional options for particular 


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situations, such as general permits for 

specific source categories, to facilitate 

minor source emissions management in 

Indian country. Existing sources in 

Indian country may have PTE limits that 

preceded the EPA’s FIP for minor 

sources and, for that reason, were issued 

in a 40 CFR part 71 permit or FIP 

permitting provision applicable to 

Indian country. 

Consistent with EPA policy, the EPA 

will offer to consult with the potentially 

impacted tribes and other tribes upon 

their request. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks 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 directly regulate any 

emission source and will not have any 

direct impact on children’s health. The 

emissions reductions achieved by 

individual NESHAP are properly 

accounted for in those individual 

NESHAP rather than the General 

Provisions. This action will not change 

the level of emissions reductions 

achieved by those NESHAP. While we 

do not expect this action to have any 

direct impact on children’s health, 

preventing emissions increases will 

ensure protections achieved via any 

NESHAP that a source was subject to at 

the time of reclassification will provide 

continued protection achieved by any 

NESHAP that source was formerly 

subject to. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

We have concluded that this action is 

not likely to have any adverse energy 

effects. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations and Executive 

Order 14096: Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All 

The EPA believes that this action does 

not have disproportionate and adverse 

human health or environmental effects 

on communities with environmental 

justice concerns because it does not 

establish an environmental health or 

safety standard. The proposed 

amendments to the General Provisions 

are procedural changes and do not 

impact the technology performance nor 

level of control of the NESHAP 

governed by the General Provisions. 

While the EPA does not expect this 

action to directly impact the level of 

control of any particular NESHAP 

standards, this proposal is expected to 

enhance transparency, promote national 

consistency in EPA and citizen 

enforcement, and improve compliance 

assurance through clearer criteria for 

NESHAP reclassifications. The 

processes by which state programs and 

permits are approved under 40 CFR 

subpart E, includes requirements for 

public notice and comment as well as 

creating programs and permits that are 

federally enforceable by the EPA and 

citizens. These additional layers of 

oversight increase the likelihood that 

sources will continue to effectively 

operate air pollution control equipment 

and create a framework for the EPA and 

citizens to pursue enforcement actions if 

they do not. Additionally, the EPA finds 

that the safeguards proposed in this 

action will ensure that HAP emissions 

reductions are achieved, and the 

corresponding public health and 

environmental benefits from decreased 

HAP emissions, are maintained at 

sources that reclassify from major 

sources of HAP to area sources of HAP. 

List of Subjects in 40 CFR Part 63 

Environmental protection, Area 

sources, General provisions, Hazardous 

air pollutants, Major sources, Potential 

to emit. 

Michael S. Regan, 

Administrator. 

[FR Doc. 2023–21041 Filed 9–26–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2019–0069; 

FF09E21000 FXES11110900000 234] 

RIN 1018–BE14 

Endangered and Threatened Wildlife 

and Plants; Reclassifying the Virgin 

Islands Tree Boa From Endangered to 

Threatened With a Section 4(d) Rule 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; withdrawal. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), withdraw the 

proposed rule to reclassify the Virgin 

Islands tree boa (listed as Epicrates 

monensis granti) from endangered to 

threatened under the Endangered 

Species Act of 1973 (Act), as amended. 

This withdrawal is based on new 

information we received during the 

proposed rule’s public comment 

periods, specifically new survey results 

that indicate that the Virgin Islands tree 

boa is likely extirpated from Cayo 

Ratones. We also realized an error in 

calculations that reduced the resiliency 

of the Cayo Diablo population. After 

evaluating the status of the species 

following these changes, we find that 

the species still meets the Act’s 

definition of an endangered species. We 

have, therefore, determined that 

reclassification of this species is not 

appropriate at this time. Accordingly, 

we also withdraw the proposed 4(d) rule 

for the Virgin Islands tree boa. 

DATES: The proposed rule that 

published on September 30, 2020 (85 FR 

61700), to reclassify the Virgin Islands 

tree boa as threatened with a rule issued 

under section 4(d) of the Act is 

withdrawn on September 27, 2023. 

ADDRESSES: This withdrawal, comments 

on our September 30, 2020, proposed 

rule, and supplementary documents are 

available for public inspection on the 

internet at https://www.regulations.gov 

at Docket No. FWS–R4–ES–2019–0069 

and on the Service’s website at https:// 

www.fws.gov/office/caribbeanecological-services/library. 

FOR FURTHER INFORMATION CONTACT: 

Edwin E. Mun ̃iz, Field Supervisor, U.S. 

Fish and Wildlife Service, Caribbean 

Ecological Services Field Office, P.O. 

Box 491, Boquero ́n, PR 00622; 

telephone 787–405–3641; email: 

Caribbean_es@fws.gov. Individuals in 

the United States who are deaf, 

deafblind, hard of hearing, or have a 

speech disability may dial 711 (TTY, 


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