18644 Federal Register / Vol. 79, No. 64 / Thursday, April 3, 2014 / Rules and Regulations 

the settlement will be filed with the ALJ 

or the ARB, as appropriate. 

(e) Any settlement approved by 

OSHA, the ALJ, or the ARB will 

constitute the final order of the 

Secretary and may be enforced in 

United States district court pursuant to 

§ 1985.113. 

§ 1985.112 Judicial review. 

(a) Within 60 days after the issuance 

of a final order under §§ 1985.109 and 

1985.110, any person adversely affected 

or aggrieved by the order may file a 

petition for review of the order in the 

United States Court of Appeals for the 

circuit in which the violation allegedly 

occurred or the circuit in which the 

complainant resided on the date of the 

violation. 

(b) A final order is not subject to 

judicial review in any criminal or other 

civil proceeding. 

(c) If a timely petition for review is 

filed, the record of a case, including the 

record of proceedings before the ALJ, 

will be transmitted by the ARB or the 

ALJ, as the case may be, to the 

appropriate court pursuant to the 

Federal Rules of Appellate Procedure 

and the local rules of such court. 

§ 1985.113 Judicial enforcement. 

Whenever any person has failed to 

comply with a final order, including one 

approving a settlement agreement, 

issued under CFPA, the Secretary or a 

person on whose behalf the order was 

issued may file a civil action seeking 

enforcement of the order in the United 

States district court for the district in 

which the violation was found to have 

occurred. The Secretary also may file a 

civil action seeking enforcement of the 

order in the United States district court 

for the District of Columbia. Whenever 

any person has failed to comply with a 

preliminary order of reinstatement, the 

person on whose behalf the order was 

issued may file a civil action seeking 

enforcement of the order in the 

appropriate district court of the United 

States. 

§ 1985.114 District court jurisdiction of 

retaliation complaints. 

(a) The complainant may bring an 

action at law or equity for de novo 

review in the appropriate district court 

of the United States, which will have 

jurisdiction over such an action without 

regard to the amount in controversy, 

either: 

(1) Within 90 days after receiving a 

written determination under 

§ 1985.105(a) provided that there has 

been no final decision of the Secretary; 

or 

(2) If there has been no final decision 

of the Secretary within 210 days of the 

filing of the complaint. 

(b) At the request of either party, the 

action shall be tried by the court with 

a jury. 

(c) A proceeding under paragraph (a) 

of this section shall be governed by the 

same legal burdens of proof specified in 

§ 1985.109. The court shall have 

jurisdiction to grant all relief necessary 

to make the employee whole, including 

injunctive relief and compensatory 

damages, including: 

(1) Reinstatement with the same 

seniority status that the employee 

would have had, but for the discharge 

or discrimination; 

(2) The amount of back pay, with 

interest; 

(3) Compensation for any special 

damages sustained as a result of the 

discharge or discrimination; and 

(4) Litigation costs, expert witness 

fees, and reasonable attorney fees. 

(d) Within seven days after filing a 

complaint in Federal court, a 

complainant must file with OSHA, the 

ALJ, or the ARB, depending on where 

the proceeding is pending, a copy of the 

file-stamped complaint. A copy of the 

complaint also must be served on the 

OSHA official who issued the findings 

and/or preliminary order, the Assistant 

Secretary, and the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor. 

§ 1985.115 Special circumstances; waiver 

of rules. 

In special circumstances not 

contemplated by the provisions of these 

rules, or for good cause shown, the ALJ 

or the ARB on review may, upon 

application, after three days notice to all 

parties, waive any rule or issue such 

orders that justice or the administration 

of CFPA requires. 

[FR Doc. 2014–07380 Filed 4–2–14; 8:45 am] 

BILLING CODE 4510–26–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0408; FRL–9909–11– 

Region–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Delaware; Infrastructure Requirements 

for the 2008 Ozone National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of Delaware 

pursuant to the Clean Air Act (CAA). 

Whenever new or revised national 

ambient air quality standards (NAAQS) 

are promulgated, the CAA requires 

states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements, including, but not limited to 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 

and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The State of 

Delaware has made a submittal 

addressing the infrastructure 

requirements for the 2008 ozone 

NAAQS. 

DATES: This final rule is effective on 

May 5, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2013–0408. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., 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 form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Delaware Department of 

Natural Resources and Environmental 

Control (DNREC), 89 Kings Highway, 

P.O. Box 1401, Dover, Delaware 19903. 

FOR FURTHER INFORMATION CONTACT: Rose 

Quinto, (215) 814–2182, or by email at 

quinto.rose@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On August 30, 2013 (78 FR 53709), 

EPA published a notice of proposed 

rulemaking (NPR) for the State of 

Delaware. In the NPR, EPA proposed 

approval of Delaware’s submittal that 

provides the basic elements specified in 

section 110(a)(2) of the CAA, necessary 

to implement, maintain, and enforce the 

2008 ozone NAAQS. 


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Federal Register / Vol. 79, No. 64 / Thursday, April 3, 2014 / Rules and Regulations 18645 

II. Summary of SIP Revision 

On March 27, 2013, the Delaware 

Department of Natural Resources and 

Environmental Control (DNREC) 

submitted a SIP revision that addresses 

the infrastructure elements specified in 

section 110(a)(2) of the CAA, necessary 

to implement, maintain and enforce the 

2008 ozone NAAQS. This submittal 

addressed the following infrastructure 

elements of section 110(a)(2): (A), (B), 

(C), (D), (E), (F), (G), (H), (I), (J), (K), (L), 

and (M). EPA has analyzed the above 

identified submission and is approving 

the submittal as addressing the 

requirements of section 110(a)(2)(A), 

(B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), 

(J), (K), (L), and (M) of the CAA. As 

discussed in the NPR, EPA will take 

separate action on the portions of the 

submittal which address section 

110(a)(2)(I) for the Part D, Title I 

nonattainment planning requirements 

and section 110(a)(2)(D)(i)(I) which 

addresses significant contribution to 

nonattainment or interference with 

maintenance of the NAAQS in another 

state. 

The rationale for EPA’s rulemaking 

action, including the scope of 

infrastructure SIPs in general, is 

explained in the NPR and the technical 

support document (TSD) accompanying 

the NPR and will not be restated here. 

The TSD for this rulemaking is available 

at www.regulations.gov, Docket number 

EPA–R03–OAR–2013–0408. 

III. Public Comments and EPA 

Responses 

EPA received three sets of comments 

on the August 30, 2013 proposed 

approval of Delaware’s 2008 ozone 

infrastructure SIP. The commenters 

included the State of Connecticut, the 

Delaware Solid Waste Authority 

(DSWA), and the Sierra Club. A full set 

of these comments is provided in the 

docket for today’s final rulemaking 

action. 

A. State of Connecticut 

Comment: The State of Connecticut 

asserts that its ability to attain the 2008 

ozone NAAQS is compromised by 

interstate transport of pollution from 

upwind states. Connecticut claims it 

would require additional reductions 

from upwind emissions to address 

transported emissions into Connecticut 

and to be able to attain the 2008 ozone 

NAAQS based on modeling from the 

Ozone Transport Commission and 

modeling done by EPA for the Cross 

State Air Pollution Rule (CSAPR). 

Connecticut comments that remaining 

measures to reduce in-state emissions 

were limited and not cost effective. 

Connecticut asserts that it and other 

states like Delaware had done their fair 

share to reduce in-state emissions while 

upwind states failed to fulfill minimal 

obligations under the CAA. Connecticut 

states that section 110(a)(1) of the CAA 

requires states like Delaware to submit, 

within three years of promulgation of a 

new NAAQS, a plan which provides for 

implementation, maintenance, and 

enforcement of such NAAQS within the 

state. Connecticut states that Delaware 

had submitted a plan to address its good 

neighbor obligations under section 

110(a)(2)(D)(i)(I) of the CAA for 

Delaware’s March 27, 2013 

infrastructure SIP for the 2008 ozone 

NAAQS. Connecticut states that it had 

previously commented on Delaware’s 

draft infrastructure SIP for the 2008 

ozone NAAQS by stating Connecticut 

believed Delaware’s already adopted 

control measures are sufficient to 

alleviate Delaware’s contribution to 

Connecticut’s ozone problems by 

December 15, 2015, which is 

Connecticut’s attainment deadline for 

the 2008 ozone NAAQS. 

Connecticut argues that EPA lacks the 

discretion to defer action on Delaware’s 

good neighbor portion of Delaware’s 

infrastructure SIP for 2008 ozone 

NAAQS (for section 110(a)(2)(D)(i)(I) of 

the CAA). Connecticut further argues 

that the CAA does not give EPA 

discretion to approve a SIP without the 

good neighbor provision on the grounds 

that EPA would take separate action on 

Delaware’s obligations under section 

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

that EPA should either approve 

Delaware’s infrastructure SIP with 

respect to its impact on Connecticut’s 

ambient ozone levels or address 

Delaware’s failure to satisfy its good 

neighbor obligations by promulgating a 

Federal Implementation Plan (FIP) 

under section 110(c)(1) of the CAA 

within two years to address section 

110(a)(2)(D)(i)(I) of the CAA. 

Response: EPA acknowledges the 

commenter’s concerns with regard to 

the interstate transport of ozone and 

ozone precursors. EPA also agrees in 

general with the commenter that each 

state should address its contribution to 

another state’s nonattainment and that 

section 110(a)(1) of the CAA requires 

states like Delaware to submit within 

three years of promulgation of a new or 

revised NAAQS a plan which provides 

for implementation, maintenance and 

enforcement of such NAAQS within the 

state. Many of the commenter’s 

concerns, however, go to issues beyond 

the scope of this rulemaking action and 

the commenter does not allege that 

deferring action on Delaware’s SIP will 

have any negative impact on 

Connecticut. To the contrary, the 

commenter asserts that ‘‘it is very likely 

that the adopted control programs noted 

in the DNREC proposed SIP are 

sufficient to alleviate Delaware’s 

contributions to Connecticut’s ozone 

problems’’ by Connecticut’s attainment 

deadline for the 2008 eight-hour ozone 

NAAQS. 

In this rulemaking action, EPA is not 

taking any final action with respect to 

the provisions in section 

110(a)(2)(D)(i)(I)—the portion of the 

good neighbor provision that addresses 

emissions that significantly contribute 

to nonattainment or interfere with 

maintenance of the NAAQS in another 

state. EPA did not propose to take any 

action with respect to Delaware’s 

obligations pursuant to section 

110(a)(2)(D)(i)(I) and is not, in this 

notice, taking any such action. As 

explained in this rulemaking action, 

while section 110(k) of the CAA 

requires EPA to act on all SIP 

submissions whether required or not, 

nothing in section 110(k) requires EPA 

to act on all parts of a SIP submission 

in a single action or requires EPA to act 

on Delaware’s section 110(a)(2)(D)(i)(I) 

submission at this time. Moreover, even 

if EPA were to disapprove the 

110(a)(2)(D)(i)(I) portion of the SIP 

submitted by Delaware, pursuant to the 

U.S. Court of Appeals for the District of 

Columbia (DC Circuit Court) opinion in 

EME Homer City, any such disapproval 

would not at this time trigger an 

obligation for EPA to promulgate a FIP 

within two years. 

EPA disagrees with the commenter 

that EPA cannot defer action on the 

110(a)(2)(D)(i)(I) portion of the Delaware 

SIP submittal and therefore must now 

approve or disapprove Delaware’s 

section 110(a)(2)(D)(i)(I) SIP submission 

for the 2008 ozone NAAQS. EPA 

indicated in its notice of proposed 

rulemaking that it intended to take 

separate rulemaking action on the 

110(a)(2)(D)(i)(I) portion of Delaware’s 

SIP submission and nothing in the CAA 

bars EPA from concluding that action on 

that portion of the submittal should be 

deferred. EPA found Delaware’s March 

27, 2013 infrastructure SIP for the 2008 

ozone NAAQS complete on May 20, 

2013. Therefore, pursuant to section 

110(k)(2) of the CAA, EPA has until May 

20, 2014 to act on all portions of 

Delaware’s submittal. In this case, EPA 

has chosen to act on a portion of the SIP 

submittal prior to that deadline. The 

commenter has not identified any 

provision of the CAA that prohibits EPA 

from doing so. The commenter has also 

not identified any provision of the CAA 

that prohibits EPA from approving a SIP 

without the good neighbor provision or 


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that prohibits EPA from deciding to act 

separately on the portion of a SIP 

submission addressing that provision. 

Section 110(k)(3) of the CAA authorizes 

EPA to approve a plan in full, 

disapprove it in full, or approve it in 

part and disapprove it in part, 

depending on the extent to which such 

plan meets the requirements of the 

CAA. This authority to approve the 

states’ SIP revisions in separable parts 

was included in the 1990 Amendments 

to the CAA to overrule a decision in the 

Court of Appeals for the Ninth Circuit 

holding that EPA could not approve 

individual measures in a plan 

submission without either approving or 

disapproving the plan as a whole. See 

S. Rep. No. 101–228, at 22, 1990 

U.S.C.C.A.N. 3385, 3408 (discussing the 

express overruling of Abramowitz v. 

EPA, 832 F.2d 1071 (9th Cir. 1987)). 

As such, EPA interprets its authority 

under section 110(k)(3) as affording EPA 

the discretion to approve or 

conditionally approve individual 

elements of Delaware’s infrastructure 

SIP submission for the 2008 ozone 

NAAQS, separate and apart from any 

action with respect to the requirements 

of section 110(a)(2)(D)(i)(I) of the CAA 

with respect to that NAAQS. EPA views 

discrete infrastructure SIP requirements, 

such as the requirements of section 

110(a)(2)(D)(i)(I) of the CAA, as 

severable from the other infrastructure 

elements and interprets section 

110(k)(3) of the CAA as allowing it to 

act on individual severable measures in 

a plan submission. While EPA 

acknowledges it has an obligation under 

section 110(k)(2) to act on the 

110(a)(2)(D)(i)(I) portion of the March 

27, 2013 SIP submittal, EPA believes it 

has discretion under section 110(k) of 

the CAA to act upon the various 

individual elements of the State’s 

infrastructure SIP submission, 

separately or together, as appropriate. 

The commenter has not raised a 

compelling legal or environmental 

rationale for an alternate interpretation. 

As the time for EPA to act upon the 

110(a)(2)(D)(i)(I) portion of Delaware’s 

submittal has not yet expired, EPA 

believes it may appropriately act upon 

the remainder of the SIP submittal and 

take action on the 110(a)(2)(D)(i)(I) 

portion in a separate action. And the 

decision to defer action on the portion 

of the submission addressing section 

110(a)(2)(D)(i)(I) of the CAA is 

reasonable in light of the uncertainty 

created by the Supreme Court review of 

the DC Circuit Court decision in EME 

Homer City—a decision which, among 

other things, interpreted that section of 

the CAA. 

Additionally, EPA notes that the 

commenter has not demonstrated that 

EPA could take either of the actions 

requested. The commenter has neither 

demonstrated that the 110(a)(2)(D)(i)(I) 

portion of the SIP submission is 

sufficient to prohibit any emissions that 

significantly contribute to 

nonattainment or interfere with 

maintenance in any other state, nor 

demonstrated that EPA at this time 

could establish a two year deadline for 

EPA to promulgate a FIP addressing any 

such emissions. In light of the DC 

Circuit Court opinion in EME Homer 

City, there is not at this time any basis 

for contending that EPA must issue a 

FIP within two years of any future 

disapproval of Delaware’s 

110(a)(2)(D)(i)(I) SIP submission as EPA 

has not yet quantified Delaware’s good 

neighbor obligations under the 2008 

ozone NAAQS. 

EPA has historically interpreted the 

CAA as requiring states to submit SIPs 

addressing the requirements of section 

110(a)(2)(D)(i)(I) of the CAA within 

three years of the promulgation or 

revision of a NAAQS. Similarly, EPA 

has interpreted the CAA as providing 

that any disapproval of a 

110(a)(2)(D)(i)(I) SIP submission, or a 

finding that a state has failed to make 

such a submission, would trigger an 

obligation for EPA to promulgate a FIP 

within two years if the state did not 

correct the SIP deficiency within that 

time. EPA continues to agree that the 

plain language of the statute establishes 

these obligations. However, the DC 

Circuit Court clearly articulated in its 

opinion in EME Homer City that SIPs 

under section 110(a)(2)(D)(i)(I) of the 

CAA are not due until EPA has defined 

a state’s contribution to nonattainment 

or interference with maintenance in 

another state. See EME Homer City 

Generation, LP v. EPA, 696 F.3d 7 (D.C. 

Cir. 2012), cert. granted 133 U.S. 2857 

(2013). EPA has not yet done this for the 

2008 ozone NAAQS. While the Supreme 

Court has agreed to review the EME 

Homer City decision, the DC Circuit 

Court’s decision currently remains in 

place. EPA intends to act in accordance 

with the EME Homer City opinion 

unless it is reversed or otherwise 

modified by the Supreme Court. See 

also 78 FR 14683 (concluding that, 

under the DC Circuit Court opinion in 

EME Homer City, disapproval of a 

110(a)(2)(D)(i)(I) SIP submitted by 

Kentucky did not start a FIP clock). 

Further, because the EPA rule known 

as CSAPR reviewed by the DC Circuit 

Court in EME Homer City was 

designated by EPA as a ‘‘nationally 

applicable’’ rule within the meaning of 

section 307(b)(1) of the CAA with 

petitions for review of CSAPR required 

to be filed in the DC Circuit Court, EPA 

believes the DC Circuit Court’s decision 

in EME Homer City is also nationally 

applicable. As such, EPA does not 

intend to take any actions, even if they 

are only reviewable in another Federal 

Circuit Court of Appeals that are 

inconsistent with the decision of the DC 

Circuit Court. For this reason, even if 

EPA were to disapprove the 

110(a)(2)(D)(i)(I) SIP submission from 

Delaware, any such disapproval would 

not at this time trigger an obligation for 

EPA to issue a FIP within two years. 

In sum, the concerns raised by the 

commenter do not establish that it is 

inappropriate or unreasonable for EPA 

to approve the portions of Delaware’s 

March 27, 2013 infrastructure SIP 

submission for the 2008 ozone NAAQS 

described in the proposed approval. 

Moreover, EPA notes that it is actively 

working with state partners to assess 

next steps to address air pollution that 

crosses state boundaries and has begun 

work on a rulemaking to address 

transported air pollution affecting the 

ability of states in the eastern half of the 

United States to attain and maintain the 

2008 ozone NAAQS. That rulemaking 

action is separate from this SIP approval 

rulemaking action. It is also technically 

complex and must comply with the 

rulemaking requirements of section 

307(d) of the CAA. 

B. Delaware Solid Waste Authority 

Comment: DSWA comments on the 

possibility of Delaware adopting the 

Ozone Transport Commission’s antiidling recommendations for certain 

motor vehicles. DSWA expresses its 

concern with the temperature 

exemptions meant to safeguard the 

equipment operators. DSWA 

recommends changing the temperature 

range when exemptions are allowed 

from anti-idling regulations from below 

25 degrees Fahrenheit and above 85 

degrees Fahrenheit to below 40 degrees 

Fahrenheit and above 75 degrees 

Fahrenheit. DSWA asserts the 

recommended temperature exemption 

was overly optimistic and the narrower 

temperature range (below 40 degrees 

Fahrenheit and above 75 degrees 

Fahrenheit) would allow operation of 

heating and air conditioning systems in 

certain motor vehicles when idling 

when temperature control may be 

necessary for safeguarding operators of 

those motor vehicles. 

Response: EPA appreciates DSWA’s 

comment. However, in this rulemaking 

action, EPA is neither approving nor 

disapproving any existing state rules or 

regulations into the Delaware SIP. Thus, 

the comment is not relevant to this 


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1While it is true that there may be some monitors 

within a state with values so high as to make a 

Continued 

rulemaking action. Delaware already has 

an anti-idling regulation, Regulation 

1145, Excessive Idling of Heavy Duty 

Vehicles. In addition, EPA has 

previously approved this regulation, 

Regulation 1145, into the Delaware SIP. 

See 40 CFR 52.420(c) and 74 FR 51792, 

October 8, 2009. While Delaware’s 

infrastructure SIP for the 2008 ozone 

NAAQS has listed Regulation 1145 as 

one enforceable control measure for 

section 110(a)(2)(A) of the CAA which 

meets applicable requirements of the 

CAA, EPA is acting on the infrastructure 

SIP as meeting the section 110(a)(2) 

requirements overall. As EPA stated in 

‘‘Guidance on Infrastructure SIP 

Elements under CAA Sections 110(a)(1) 

and 110(a)(2),’’ dated September 13, 

2013 (Infrastructure SIP Guidance), 

‘‘[t]he conceptual purpose of an 

infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 2. EPA has 

established that Delaware’s existing SIP 

meets requirements of section 

110(a)(2)(A) of the CAA and is not 

adding any regulations to the Delaware 

SIP. As DSWA is commenting about 

suggested changes in a provision which 

is already Delaware law, EPA suggests 

DSWA pursue its comments with 

DNREC. EPA believes Delaware’s 

infrastructure SIP adequately address 

section 110(a)(2)(A) of the CAA for the 

2008 ozone NAAQS. 

C. Sierra Club 

Comment 1: Sierra Club contends that 

EPA cannot approve the section 

110(a)(2)(A) portion of Delaware’s 2008 

ozone infrastructure SIP revision 

because the plain language of 

110(a)(2)(A) of the CAA, legislative 

history of the CAA, case law, EPA 

regulations such as 40 CFR 51.112(a), 

and EPA interpretations in rulemakings, 

require the inclusion in an 

infrastructure SIP of enforceable 

emission limits to prevent NAAQS 

violations in areas not designated 

nonattainment. Specifically, Sierra Club 

cites air monitoring reports for Kent 

County, Delaware indicating a violation 

of the NAAQS based on Kent County’s 

2010–2012 design value. The 

commenter states EPA must disapprove 

the infrastructure SIP because it 

impermissibly fails to include 

enforceable eight-hour ozone emission 

limits to ensure attainment and 

maintenance of the NAAQS in areas 

designated attainment. Sierra Club 

comments that Delaware had only 

added two provisions, related to 

visibility and state boards, to its ‘‘old 

SIP’’ which addressed the 1997 ozone 

NAAQS and claims the Delaware SIP is 

insufficient for Delaware to attain and 

maintain the 2008 ozone NAAQS as 

evidenced by the monitoring data from 

Kent County showing violation of the 

2008 ozone NAAQS for 2010–2012. 

The commenter alleges that this 

violation in Kent County, a designated 

attainment area, demonstrates that the 

Delaware infrastructure SIP lacks 

adequate emission limits to attain and 

maintain the 2008 ozone NAAQS and 

thus EPA must disapprove the 

infrastructure SIP. Sierra Club notes that 

Delaware has not specified how it plans 

to address the violation in Kent County 

nor established emission limits to 

reduce the ‘‘dangerous ozone 

concentrations’’ in the county. The 

commenter states EPA must require 

Delaware to amend its infrastructure SIP 

to include enforceable eight-hour ozone 

emission limits that ensure sources 

cannot cause violations of the 2008 

ozone NAAQS in areas designated 

attainment. Sierra Club contends that 

the infrastructure SIP must be 

disapproved because it fails to include 

adequate enforceable eight-hour 

emission limitations for sources of 

ozone precursors to ensure attainment 

and maintenance of the NAAQS in areas 

designated attainment in violation of 

section 110(a)(1) and (a)(2)(A) of the 

CAA and 40 CFR 51.112. 

Response 1: EPA disagrees with the 

commenter that the statute is clear on its 

face that infrastructure SIPs must 

include detailed attainment and 

maintenance plans for all areas of the 

state and must be disapproved if air 

quality data that became available late 

in the process or after the infrastructure 

SIP was due and submitted changes the 

status of areas within the state. In 

subsections (a) through (e) of this 

rulemaking action, EPA addresses the 

commenter’s specific arguments that the 

statutory language, legislative history, 

case law, EPA regulations, and prior 

rulemaking actions by EPA mandate the 

narrow interpretation they advocate. 

EPA believes that section 110(a)(2)(A) is 

reasonably interpreted to require states 

to submit SIPs that reflect the first step 

in their planning for attaining and 

maintaining a new or revised NAAQS 

and that they contain enforceable 

control measures and a demonstration 

that the state has the available tools and 

authority to develop and implement 

plans to attain and maintain the 

NAAQS. 

As an initial matter, EPA disagrees 

that air quality monitoring that became 

available four years following 

promulgation of the 2008 ozone NAAQS 

and after the ozone infrastructure SIP 

was submitted provides a basis for 

disapproving the Delaware ozone 

infrastructure SIP. States must develop 

SIPs based on the information they have 

during the SIP development process and 

data that becomes available after that 

process is completed cannot undermine 

the reasonable assumptions that were 

made by the state based on the 

information it had available as it 

developed the plan. Thus, the data cited 

by the commenter should not be 

considered in determining whether the 

SIP should be approved. The suggestion 

that Delaware’s ozone infrastructure SIP 

must include measures addressing a 

violation of the standard that did not 

occur until shortly after the SIP was due 

and submitted cannot be supported. The 

CAA provides states with three years to 

develop infrastructure SIPs and states 

cannot reasonably be expected to 

address the annual change in an area’s 

design value for each year over that 

period, nor to predict the air quality 

data in periods after development and 

submission of the SIPs. Moreover, the 

CAA recognizes and has provisions to 

address changes in air quality over time, 

such as an area slipping from attainment 

to nonattainment or changing from 

nonattainment to attainment. These 

include provisions providing for 

redesignation in section 107(d) of the 

CAA and provisions in section 110(k)(5) 

of the CAA allowing EPA to call on the 

state to revise its SIP, as appropriate. 

The commenter suggests that EPA 

must disapprove the Delaware ozone 

infrastructure SIP because the fact that 

an area in Delaware has air quality data 

slightly above the standard proves that 

the infrastructure SIP is inadequate to 

demonstrate maintenance for that area. 

EPA disagrees because we do not 

believe that section 110(a)(2)(A) of the 

CAA requires detailed planning SIPs 

demonstrating either attainment or 

maintenance for specific geographic 

areas of the state. The infrastructure SIP 

is triggered by promulgation of the 

NAAQS, not designation. Moreover, 

infrastructure SIPs are due three years 

following promulgation of the NAAQS 

and designations are not due until two 

years (or in some cases three years) 

following promulgation of the NAAQS. 

Thus, during a significant portion of the 

period that a state has available for 

developing the infrastructure SIP, it 

does not know what the designation 

will be for individual areas of the state.1


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nonattainment designation of the county with that 

monitor almost a certainty, the geographic 

boundaries of the nonattainment area associated 

with that monitor would not be known until EPA 

issues final designations. In any event, the Kent 

County area of concern to the commenter does not 

fit that description. 

2EPA notes that preliminary monitoring data for 

2013 indicates that Kent County, Delaware is not 

violating the 2008 ozone NAAQS for the period 

2011–2013. The 2013 data is uncertified. States are 

required to certify 2013 data by May 1, 2014. 

In light of the structure of the CAA, 

EPA’s long-standing position regarding 

infrastructure SIPs is that they are 

general planning SIPs to ensure that the 

state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. 

Our interpretation that infrastructure 

SIPs are more general planning SIPs is 

consistent with the statute as 

understood in light of its history and 

structure. When Congress enacted the 

CAA in 1970, it did not include 

provisions requiring states and the EPA 

to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

in ‘‘air quality control regions’’ (AQCRs) 

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with the NAAQS 

within five years. Moreover, at that 

time, section 110(a)(2)(A)(i) of the CAA 

specified that the section 110 plan 

provide for ‘‘attainment’’ of the NAAQS 

and section 110(a)(2)(B) specified that 

the plan must include ‘‘emission 

limitations, schedules, and timetables 

for compliance with such limitations, 

and such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ In 1977, 

Congress recognized that the existing 

structure was not sufficient and many 

areas were still violating the NAAQS. At 

that time, Congress for the first time 

added provisions requiring states and 

EPA to identify whether areas of the 

state were violating the NAAQS (i.e., 

were nonattainment) or were meeting 

the NAAQS (i.e., were attainment) and 

established specific planning 

requirements in section 172 of the CAA 

for areas not meeting the NAAQS. In 

1990, many areas still had air quality 

not meeting the NAAQS and Congress 

again amended the CAA and added yet 

another layer of more prescriptive 

planning requirements for each of the 

NAAQS, with the primary provisions 

for ozone in section 182 of the CAA. At 

that same time, Congress modified 

section 110 to remove references to the 

section 110 SIP providing for 

attainment, including removing preexisting section 110(a)(2)(A) in its 

entirety and renumbering subparagraph 

(B) as section 110(a)(2)(A) of the CAA. 

Additionally, Congress replaced the 

clause ‘‘as may be necessary to insure 

attainment and maintenance [of the 

NAAQS]’’ with ‘‘as may be necessary or 

appropriate to meet the applicable 

requirements of this chapter.’’ Thus, the 

CAA has significantly evolved in the 

more than 40 years since it was 

originally enacted. While at one time 

section 110 did provide the only 

detailed SIP planning provisions for 

states and specified that such plans 

must provide for attainment of the 

NAAQS, under the structure of the 

current CAA, section 110 is only the 

initial stepping-stone in the planning 

process for a specific NAAQS. And, 

more detailed, later-enacted provisions 

govern the substantive planning 

process, including planning for 

attainment of the NAAQS. 

For all of these reasons, EPA disagrees 

with the commenter that EPA must 

disapprove an infrastructure SIP 

revision if there are monitored 

violations of the standard in the state 

and the section 110(a)(2)(A) revision 

does not have detailed plans for 

demonstrating how the state will bring 

that area into attainment. Rather, EPA 

believes that the proper inquiry at this 

juncture is whether the state has met the 

basic structural SIP requirements 

appropriate at the point in time EPA is 

acting upon the submittal. 

Moreover, as addressed in EPA’s 

proposed approval for this rule, 

Delaware submitted a list of existing 

emission reduction measures in the SIP 

that control emissions of volatile 

organic compounds (VOCs) and 

nitrogen oxides (NOx). Delaware’s SIP 

revision reflects several provisions that 

have the ability to reduce ground level 

ozone and its precursors. The Delaware 

SIP relies on measures and programs 

used to implement previous ozone 

NAAQS. Because there is no substantive 

difference between the previous ozone 

NAAQS and the more recent ozone 

NAAQS, other than the level of the 

standard, the provisions relied on by 

Delaware will provide benefits for the 

new NAAQS; in other words, the 

measures reduce overall ground-level 

ozone and its precursors and are not 

limited to reducing ozone levels to meet 

one specific NAAQS. 

EPA shares the commenter’s concern 

regarding Kent County’s violation of the 

2008 eight-hour ozone NAAQS in 2010– 

2012 and will work appropriately with 

the State to address any issues.2 Further, 

in approving Delaware’s infrastructure 

SIP revision, EPA is affirming that 

Delaware has sufficient authority to take 

the types of actions required by the CAA 

in order to bring such areas back into 

attainment. 

a. The Plain Language of the CAA 

Comment 2: The commenter states 

that on its face the CAA ‘‘requires I–SIPs 

to be adequate to prevent violations of 

the NAAQS.’’ In support, the 

commenter quotes the language in 

section 110(a)(1) which requires states 

to adopt a plan for implementation, 

maintenance, and enforcement of the 

NAAQS and the language in section 

110(a)(2)(A) of the CAA which requires 

SIPs to include enforceable emissions 

limitations as may be necessary to meet 

the requirements of the CAA and which 

commenter claims includes the 

maintenance plan requirement. Sierra 

Club notes the CAA definition of 

emission limit and reads these 

provisions together to require 

‘‘enforceable emission limits on source 

emissions sufficient to ensure 

maintenance of the NAAQS.’’ 

Response 2: EPA disagrees that 

section 110 is ‘‘clear on its face’’ and 

must be interpreted in the manner 

suggested by Sierra Club. As explained 

earlier in this rulemaking action, section 

110 of the CAA is only one provision 

that is part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of not only 

that structure, but also of the historical 

evolution of that structure. In light of 

the revisions to section 110 since 1970 

and the later-promulgated and more 

specific planning requirements of the 

CAA, EPA reasonably interprets the 

requirement in section 110(a)(2)(A) that 

the plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the infrastructure SIP must contain 

enforceable emission limits that will aid 

in attaining and/or maintaining the 

NAAQS and that the state demonstrate 

that it has the necessary tools to 

implement and enforce a NAAQS, such 

as adequate state personnel and an 

enforcement program. With regard to 

the requirement for emission 

limitations, EPA has interpreted this to 

mean for purposes of section 110 of the 

CAA that the state may rely on measures 

already in place to address the pollutant 

at issue or any new control measures 


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that the state may choose to submit. As 

EPA stated in ‘‘Guidance on 

Infrastructure SIP Elements under CAA 

Sections 110(a)(1) and 110(a)(2),’’ dated 

September 13, 2013 (Infrastructure SIP 

Guidance), ‘‘[t]he conceptual purpose of 

an infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both. Overall, the 

infrastructure SIP submission process 

provides an opportunity . . . to review 

the basic structural requirements of the 

air agency’s air quality management 

program in light of each new or revised 

NAAQS.’’ Infrastructure SIP Guidance 

at p. 2. 

The commenter makes a general 

allegation that Delaware does not have 

regulations sufficient to ensure 

compliance with the 2008 ozone 

NAAQS ‘‘proven by the fact that Kent 

County violated the 2008 Ozone 

NAAQS.’’ EPA addressed the adequacy 

of Delaware’s infrastructure SIP for 

110(a)(2)(A) purposes to meet applicable 

requirements of the CAA in the TSD 

accompanying the August 30, 2013 NPR 

and explained why EPA believes the SIP 

includes enforceable emission 

limitations and other control measures 

necessary for maintenance of the 2008 

ozone NAAQS throughout the state. For 

Delaware, including Kent County, these 

include Delaware’s enforceable 

emission limitations and other control 

measures at: 7 DE Admin. Codes 1113, 

1124, 1141, 1144, 1145, 1146, and 1148. 

These regulations are identified as part 

of the Delaware SIP at 40 CFR 52.420(c). 

Enforceable emission limitations and 

schedules are also contained in 

Delaware’s submitted Reasonable 

Further Progress (RFP) and attainment 

demonstration SIPs that were approved 

on April 8, 2010 (75 FR 17863) and 

October 5, 2012 (77 FR 60914), 

respectively. 

b. The Legislative History of the CAA 

Comment 3: Sierra Club cites two 

excerpts from the legislative history of 

the CAA Amendments of 1970 claiming 

they support an interpretation that SIP 

revisions under section 110 of the CAA 

must include emissions limitations 

sufficient to show maintenance of the 

NAAQS in Delaware, citing the Senate 

Committee Report and the subsequent 

Senate Conference Report 

accompanying the 1970 CAA. 

Response 3: As provided in the 

previous response, the CAA, as enacted 

in 1970, including its legislative history, 

cannot be interpreted in isolation from 

the later amendments that refined that 

structure and deleted relevant language 

from section 110 concerning 

demonstrating attainment. In any event, 

the two excerpts of legislative history 

cited by the commenter merely provide 

that states should include enforceable 

emission limits in their SIPs and they 

do not mention or otherwise address 

whether states are required to include 

maintenance plans for all areas of the 

state as part of the infrastructure SIP. 

Moreover, the cited legislative history 

pertains to section 110 as promulgated 

in 1970 and not to section 110 as 

amended by the CAA Amendments of 

1990. As provided earlier in this 

rulemaking action, the TSD for the 

proposed rule explains why EPA 

believes the SIP includes enforceable 

emissions limitations for the State of 

Delaware including Kent County. 

c. Case Law 

Comment 4: Sierra Club also 

discusses several cases applying the 

CAA which Sierra Club claims support 

their contention that courts have been 

clear that section 110(a)(2)(A) of the 

CAA requires enforceable emissions 

limits in infrastructure SIPs to prevent 

violations of the NAAQS. Sierra Club 

first cites to language in Train v. NRDC, 

421 U.S. 60, 78 (1975), addressing the 

requirement for ‘‘emission limitations’’ 

and stating that emission limitations 

‘‘are specific rules to which operators of 

pollution sources are subject, and which 

if enforced should result in ambient air 

which meet the national standards.’’ 

Sierra Club also cites to Pennsylvania 

Dept. of Envtl. Resources v. EPA, 932 

F.2d 269, 272 (3d Cir. 1991) for the 

proposition that the CAA directs EPA to 

withhold approval of a SIP where it 

does not ensure maintenance of the 

NAAQS and Mision Industrial, Inc. v. 

EPA, 547 F.2d 123, 129 (1st Cir. 1976), 

which quoted section 110(a)(2)(B) of the 

CAA of 1970. The commenter contends 

that the 1990 Amendments do not alter 

how courts have interpreted the 

requirements of section 110 of the CAA, 

quoting Alaska Dept. of Envtl. 

Conservation v. EPA, 540 U.S. 461, 470 

(2004) which in turn quoted section 

110(a)(2)(A) of the CAA and also states 

that ‘‘SIPs must include certain 

measures Congress specified’’ to ensure 

attainment of the NAAQS. The 

commenter also quotes several 

additional opinions in this vein. Mont. 

Sulphur & Chem. Co. v. EPA, 666 F.3d 

1174, 1180 (9th Cir. 2012) (‘‘The Clean 

Air Act directs states to develop 

implementation plans—SIPs—that 

‘assure’ attainment and maintenance of 

[NAAQS] through enforceable emissions 

limitations’’); Hall v. EPA 273 F.3d 

1146, 1153 (9th Cir. 2001) (‘‘Each State 

must submit a [SIP] that specif[ies] the 

manner in which [NAAQS] will be 

achieved and maintained within each 

air quality control region in the State’’). 

Finally, they cited Mich. Dept. of Envtl. 

Quality v. Browner, 230 F.3d 181 (6th 

Cir. 2000) for the proposition that EPA 

may not approve a SIP revision that 

does not demonstrate how the rules 

would not interfere with attainment and 

maintenance of the NAAQS. 

Response 4: None of the cases cited by 

the commenter support the commenter’s 

contention that section 110(a)(2)(A) is 

clear that infrastructure SIPs must 

include detailed plans providing for 

attainment and maintenance of the 

NAAQS in all areas of the state nor do 

they shed light on how section 

110(a)(2)(A) of the CAA may reasonably 

be interpreted. With the exception of 

Train, none of the cases cited by the 

commenter concerned the interpretation 

of section 110(a)(2)(A) of the CAA (or 

section 110(a)(2)(B) of the pre-1990 

CAA). Rather, in the context of a 

challenge to an EPA action on revisions 

to a SIP that were required and 

approved as meeting other provisions of 

the CAA or in the context of an 

enforcement action, the D.C. Circuit 

Court references section 110(a)(2)(A) (or 

section 110(a)(2)(B) of the pre-1990 

CAA) in the background section of its 

decision. 

In Train, 421 U.S. 60, a case that was 

decided almost 40 years ago, the D.C. 

Circuit Court was addressing a state 

revision to an attainment plan 

submission made pursuant to section 

110 of the CAA, the sole statutory 

provision at that time regulating such 

submissions. The issue in that case 

concerned whether changes to 

requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The D.C. Circuit 

Court concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). Thus the 

issue was not whether a section 110 SIP 

needs to provide for attainment or 

whether emissions limits are needed as 

part of the SIP; rather the issue was 

which statutory provision governed 

when the state wanted to revise the 

emission limits in its SIP if such 

revision would not impact attainment or 


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3While the commenter does contend that the 

State shouldn’t be allowed to rely on emission 

reductions that were developed for the prior ozone 

standards (which we address above), commenter 

does not claim that any of the measures are not 

‘‘emissions limitations’’ within the definition of the 

CAA. 

maintenance of the NAAQS. To the 

extent the holding in the case has any 

bearing on how section 110(a)(2)(A) of 

the CAA might be interpreted, it is 

important to realize that in 1975, when 

the opinion was issued, section 

110(a)(2)(B) (the predecessor to section 

110(a)(2)(A)) expressly referenced the 

requirement to attain the NAAQS, a 

reference that was removed in 1990. 

The decision in Pennsylvania Dept. of 

Envtl. Resources was also decided based 

on the pre-1990 provision of the CAA. 

At issue was whether EPA properly 

rejected a revision to an approved plan 

where the inventories relied on by the 

state for the updated submission had 

gaps. The D.C. Circuit Court quoted 

section 110(a)(2)(B) of the pre-1990 CAA 

in support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. Yet, even if the D.C. Circuit 

Court had interpreted that provision, 

EPA notes that it was modified by 

Congress in 1990; thus, this decision has 

little bearing on the issue here. 

At issue in Mision Industrial, 547 

F.2d 123, was the definition of 

‘‘emissions limitation’’ not whether 

section 110 of the CAA requires the 

state to demonstrate how all areas of the 

state will attain and maintain the 

NAAQS as part of their infrastructure 

SIPs. The language from the opinion 

quoted by the commenter does not 

interpret but rather merely describes 

section 110(a)(2)(A). The commenter 

does not raise any concerns about 

whether the measures relied on by the 

state in the infrastructure SIP are 

‘‘emissions limitations’’ and the 

decision in this case has no bearing 

here.3 In Mont. Sulphur & Chem. Co., 

666 F.3d 1174, the D.C. Circuit Court 

was reviewing a FIP that EPA 

promulgated after a long history of the 

state failing to submit an adequate SIP. 

The D.C. Circuit Court cited generally to 

section 107 and 110(a)(2)(A) of the CAA 

for the proposition that SIPs should 

assure attainment and maintenance of 

NAAQS through emission limitations, 

but this language was not part of the 

court’s holding in the case. The 

commenter suggested that Alaska Dept. 

of Envtl. Conservation, 540 U.S. 461, 

stands for the proposition that the 1990 

CAA Amendments do not alter how 

courts interpret section 110. This claim 

is inaccurate. Rather, the D.C. Circuit 

Court quoted section 110(a)(2)(A), 

which, as noted previously, differs from 

the pre-1990 version of that provision 

and the court makes no mention of the 

changed language. Furthermore, the 

commenter also quotes the D.C. Circuit 

Court’s statement that ‘‘SIPs must 

include certain measures Congress 

specified’’ but that statement 

specifically referenced the requirement 

in section 110(a)(2)(C)of the CAA, 

which requires an enforcement program 

and a program for the regulation of the 

modification and construction of new 

sources. Notably, at issue in that case 

was the state’s ‘‘new source’’ permitting 

program, not its infrastructure SIP. 

Two of the cases cited by the 

commenter, Mich. Dept. of Envtl. 

Quality, 230 F.3d 181, and Hall, 273 

F.3d 1146, interpret section 110(l) of the 

CAA, the provision governing 

‘‘revisions’’ to plans, and not the initial 

plan submission requirement under 

section 110(a)(2) for a new or revised 

NAAQS, such as the infrastructure SIP 

at issue in this instance. In those cases, 

the D.C. Circuit Court cited to section 

110(a)(2)(A) of the CAA solely for the 

purpose of providing a brief background 

of the CAA. 

d. EPA Regulations, Such as 40 CFR 

51.112(a) 

Comment 5: The comments cite to 40 

CFR 51.112(a), providing that ‘‘[e]ach 

plan must demonstrate that the 

measures, rules and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ The 

commenter asserts that this regulation 

requires all SIPs to include emissions 

limits necessary to ensure attainment of 

the NAAQS. The commenter states that 

‘‘[a]lthough these regulations were 

developed before the Clean Air Act 

separated infrastructure SIPs from 

nonattainment SIPs—a process that 

began with the 1977 amendments and 

was completed by the 1990 

amendments—the regulations apply to 

I–SIPs.’’ The commenter relies on a 

statement in the preamble to the 1986 

action restructuring and consolidating 

provisions in part 51, in which EPA 

stated that ‘‘[i]t is beyond the scope of 

th[is] rulemaking to address the 

provisions of Part D of the Act . . .’’ (51 

FR 40656, November 7, 1986). 

Response 5: The commenter’s reliance 

on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits ‘‘adequate to 

prohibit NAAQS violations’’ and 

adequate or sufficient to ensure the 

maintenance of the NAAQS is not 

supported. As an initial matter, EPA 

notes and the commenter recognizes 

this regulatory provision was initially 

promulgated and ‘‘restructured and 

consolidated’’ prior to the CAA 

Amendments of 1990, in which 

Congress removed all references to 

‘‘attainment’’ in section 110(a)(2)(A). 

And, it is clear on its face that 40 CFR 

51.112 applies to plans specifically 

designed to attain the NAAQS. EPA 

interprets these provisions to apply 

when states are developing ‘‘control 

strategy’’ SIPs such as the detailed 

attainment and maintenance plans 

required under other provisions of the 

CAA, as amended in 1977 and again in 

1990, such as section 175A and 182. 

The commenter suggests that these 

provisions must apply to section 110 

SIPs because in the preamble to EPA’s 

action ‘‘restructuring and consolidating’’ 

provisions in part 51, EPA stated that 

the new attainment demonstration 

provisions in the 1977 Amendments to 

the CAA were ‘‘beyond the scope’’ of 

the rulemaking. It is important to note, 

however, that EPA’s action in 1986 was 

not to establish new substantive 

planning requirements, but rather was 

meant merely to consolidate and 

restructure provisions that had 

previously been promulgated. EPA 

noted that it had already issued 

guidance addressing the new ‘‘Part D’’ 

attainment planning obligations. Also, 

as to maintenance regulations, EPA 

expressly stated that it was not making 

any revisions other than to re-number 

those provisions. Id. at 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘part 

D’’ of the CAA, it is clear that the 

regulations being restructured and 

consolidated were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

strategy: SOx and p.m. (portion)’’), 51.14 

(‘‘Control strategy: CO, HC, Ox and NO2

(portion)’’), 51.80 (‘‘Demonstration of 

attainment: Pb (portion)’’), and 51.82 

(‘‘Air quality data (portion)’’). Id. at 

40660. Thus, the present-day 51.112 

contains consolidated provisions that 

are focused on control strategy SIPs and 

the infrastructure SIP is not such a plan. 

e. EPA Interpretations in Other 

Rulemakings 

Comment 6: The commenter also 

references two prior EPA rulemaking 

actions where EPA disapproved or 

proposed to disapprove SIPs and claims 

they were actions in which EPA relied 

on section 110(a)(2)(A) of the CAA and 

40 CFR 51.112 to reject infrastructure 

SIPs. The commenter first points to a 

2006 partial approval and partial 

disapproval of revisions to Missouri’s 

existing plan addressing the sulfur 

dioxide (SO2) NAAQS. In that action, 


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EPA cited section 110(a)(2)(A) of the 

CAA as a basis for disapproving a 

revision to the State plan on the basis 

that the State failed to demonstrate the 

SIP was sufficient to ensure 

maintenance of the SO2 NAAQS after 

revision of an emission limit and cited 

to 40 CFR 51.112 as requiring that a 

plan demonstrates the rules in a SIP are 

adequate to attain the NAAQS. Second, 

Sierra Club cites a 2013 proposed 

disapproval of a revision to the SO2 SIP 

for Indiana, where the revision removed 

an emission limit that applied to a 

specific emissions source at a facility in 

the State. EPA relied on 40 CFR 

51.112(a) in proposing to reject the 

revision, stating that the State had not 

demonstrated that the emission limit 

was ‘‘redundant, unnecessary, or that its 

removal would not result in or allow an 

increase in actual SO2 emissions.’’ EPA 

further stated in that proposed 

disapproval that the State had not 

demonstrated that removal of the limit 

would not ‘‘affect the validity of the 

emission rates used in the existing 

attainment demonstration.’’ 

Response 6: EPA does not agree that 

the two prior actions referenced by the 

commenter establish how EPA reviews 

infrastructure SIPs. It is clear from both 

the final Missouri rule and the proposed 

Indiana rule that EPA was not reviewing 

initial infrastructure SIP submissions 

under section 110 of the CAA, but rather 

reviewing revisions that would make an 

already approved SIP designed to 

demonstrate attainment of the NAAQS 

less stringent. EPA’s partial approval 

and partial disapproval of revisions to 

restrictions on emissions of sulfur 

compounds for the Missouri SIP in 71 

FR 12623 addressed a control strategy 

SIP and not an infrastructure SIP. The 

Indiana action provides even less 

support for the commenter’s position. 

As an initial matter, the Indiana action 

is a proposal and thus cannot be 

presumed to reflect the Agency’s final 

position. In any event, the review in that 

rule was of a completely different 

requirement than the 110(a)(2)(A) SIP. 

Rather, in that case, the State had an 

approved SO2 attainment plan and was 

seeking to remove from the SIP 

provisions relied on as part of the 

modeled attainment demonstration. 

EPA proposed that the State had failed 

to demonstrate under section 110(l) of 

the CAA why the SIP revision would 

not result in increased SO2 emissions 

and thus interfere with attainment of the 

NAAQS. Nothing in that rulemaking 

addresses the necessary content of the 

initial infrastructure SIP for a new or 

revised NAAQS. Rather, it is simply 

applying the clear statutory requirement 

that a state must demonstrate why a 

revision to an approved attainment plan 

will not interfere with attainment of the 

NAAQS. 

Comment 7: Sierra Club states that 

EPA should disapprove Delaware’s 

infrastructure SIP submittal for the 2008 

ozone NAAQS with regard to section 

110(a)(2)(D)(i)(II) (visibility prong) and 

110(a)(2)(J) because the commenter 

asserts that Delaware failed to submit its 

five-year progress report for regional 

haze by the required date and EPA has 

not evaluated the report or taken final 

action on that report. Sierra Club states 

that Delaware’s five-year progress report 

for regional haze was due on September 

25, 2013 pursuant to 40 CFR 51.308(g) 

because Delaware’s initial regional haze 

SIP was submitted on September 25, 

2008. Sierra Club states EPA could not 

assess the efficacy of Delaware’s 

regional haze SIP without reviewing the 

five-year progress report nor determine 

if the Delaware regional haze SIP was 

effective in improving visibility in other 

states. In addition, the commenter 

contends that Delaware does not have 

adequate best available retrofit 

technology (BART) limits because 

Delaware based its BART determination 

on comparing reductions that would be 

obtained under its multi-pollutant rule 

from BART and non-BART eligible 

sources to the reductions that would be 

obtained from just BART eligible 

sources applying BART. Therefore, 

Sierra Club states EPA should 

disapprove the visibility elements of the 

Delaware infrastructure SIP submittal 

for 2008 ozone NAAQS because NOX is 

a visibility impairing pollutant. 

Response 7: EPA disagrees with the 

commenter that EPA must disapprove 

the visibility elements of Delaware’s 

ozone infrastructure SIP due to 

allegedly inadequate BART limits in its 

regional haze SIP. The Delaware 

regional haze SIP did not include 

source-specific BART emission limits 

but rather required alternative measures 

that the State showed would achieve 

greater reasonable progress than BART. 

See (76 FR 27973, May 13, 2011). EPA 

agreed, finding that the total emission 

reductions from Delaware’s Regulation 

1146, a multi-pollutant regulation for 

EGUs, greatly exceeded the reductions 

to be expected from BART at the four 

BART-eligible units in Delaware. Id.; see 

also (76 FR 42557, July 19, 2011). 

Although the commenter is now 

suggesting that the demonstration that 

Regulation 1146 would provide for 

greater reasonable progress than BART 

was flawed, EPA approved Delaware’s 

regional haze plan as meeting the 

regional haze requirements, including 

those addressing BART, in July 2011. 

(76 FR 42557, July 19, 2011). 

The adequacy of the measures in the 

Delaware regional haze SIP addressing 

the BART requirements, however, is 

irrelevant to the question of whether 

Delaware’s SIP meets the requirements 

of section 110(a)(2)(D) of the CAA with 

respect to visibility. EPA interprets the 

visibility provisions in this section of 

the CAA as requiring states to include 

in their SIPs measures to prohibit 

emissions that would interfere with the 

reasonable progress goals set to protect 

Class I areas in other states. The regional 

haze rule at 40 CFR 51.308(d)(3) 

includes a similar requirement. EPA 

notes that in 2011, EPA determined that 

Delaware’s regional haze SIP adequately 

prevents sources in Delaware from 

interfering with the reasonable progress 

goals adopted by other states to protect 

visibility during the first planning 

period. See 76 FR 27979. Specifically, 

EPA found that the Delaware regional 

haze SIP included the appropriate 

enforceable emission limitations, 

compliance schedules, and other 

measures necessary to achieve the 

reasonable progress goals set by New 

Jersey for the one Class I area influenced 

by Delaware emissions. Id. EPA also 

found that the Delaware regional haze 

SIP met the requirements of section 

110(a)(2)(D)(i)(II) of the CAA regarding 

visibility for the 1997 eight-hour Ozone 

NAAQS and the 1997 and 2006 PM2.5

NAAQS. 76 FR 27984 (proposal); 76 FR 

42557 (final). EPA notes that the 

requirements of section 

110(a)(2)(D)(i)(II) of the CAA regarding 

visibility for the 2008 ozone NAAQS are 

the same as those for the 1997 eighthour ozone NAAQS and the earlier 

PM2.5 standards. The commenter has not 

explained how the allegedly inadequate 

BART determination would affect these 

prior findings. 

EPA also disagrees with the 

commenter that EPA must disapprove 

Delaware’s ozone infrastructure SIP 

because the State has not submitted and 

EPA has not approved a regional haze 

progress report. The regional haze 

regulations at 40 CFR 51.308(g) require 

Delaware (and other states) to submit a 

report to EPA five years from the 

submittal of its initial regional haze SIP. 

In the report, the state must, among 

other things, assess whether its current 

regional haze SIP is sufficient to enable 

nearby states to meet their established 

reasonable progress goals. Subsequent to 

EPA’s proposed approval of the ozone 

infrastructure SIP, Delaware submitted 

as a proposed SIP revision, dated 

September 24, 2013, its five-year 

progress report on its approved regional 

haze SIP. In a separate rulemaking 


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4 Delaware’s five-year progress report calculated 

total SO2 emissions from point sources using 2008 

emissions inventory information supplemented 

with 2011 SO2 emissions data for EGUs from EPA’s 

CAMD to compare ‘‘currently available’’ data to 

projections for 2018 which were in Delaware’s 2008 

regional haze SIP submittal. 

signed February 11, 2014, EPA has 

proposed to approve Delaware’s 

progress report; however, final action on 

the September 24, 2013 submittal is not 

due pursuant to section 110(k)(2) of the 

CAA at this time. See (79 FR 10442, 

February 25, 2014). EPA accordingly 

disagrees with the commenter that 

EPA’s approval of Delaware’s five-year 

progress report is a required structural 

element necessary before EPA may 

approve Delaware’s infrastructure SIP 

for element 110(a)(2)(D)(i)(II). 

EPA also disagrees with the 

commenter that Delaware’s five-year 

report was overdue at the time EPA 

proposed to approve Delaware’s 

infrastructure SIP for the 2008 ozone 

NAAQS. On August 30, 2013, the date 

of EPA’s proposed action on the 

Delaware infrastructure SIP, Delaware 

was under no obligation as yet to submit 

its five-year progress report to meet the 

requirements in 40 CFR 51.308(g). As 

correctly identified by Sierra Club, the 

Delaware five-year progress report 

required by 40 CFR 51.308(g) was due 

on September 25, 2013. Although EPA 

has not taken final action to approve 

Delaware’s progress report, from EPA’s 

review of data provided by Delaware in 

its five-year progress report, including 

EPA’s review of emissions data from 

2008 through 2011 on Delaware electric 

generating units (EGUs) from EPA’s 

Clean Air Markets Division (CAMD) as 

provided by the State in its SIP 

submittal, emissions of SO2, the primary 

contributor to visibility impairment in 

the Mid-Atlantic/Northeast Visibility 

Union (MANE–VU) region, have 

declined significantly in the State since 

the Delaware regional haze SIP was 

submitted to EPA on September 25, 

2008. Emissions of NOX from EGUs also 

have declined significantly since the 

regional haze SIP submittal. 

Specifically, Delaware’s five-year 

progress report notes that total SO2

emissions from point sources using 

‘‘currently available’’ information were 

significantly less than the 2018 point 

source projections in the Delaware 2008 

regional haze SIP submittal.4 EPA’s 

review of visibility data from Delaware 

in its five-year progress report also 

shows the Class I area impacted by 

sources within Delaware is meeting or 

below its reasonable progress goals. In 

addition, based on EPA’s review of the 

Delaware five-year progress report as 

discussed in EPA’s proposed approval 

of the report, EPA has no reason to 

question the accuracy of Delaware’s 

negative declaration to EPA pursuant to 

40 CFR 51.308(h) that no revision to 

Delaware’s regional haze SIP is needed 

at this time to achieve established goals 

for visibility improvement and 

emissions reductions. 

Therefore, based upon EPA’s review 

of the relevant visibility data, emissions 

data, and modeling results provided by 

Delaware in the five-year progress report 

and upon Delaware’s approved regional 

haze SIP, EPA continues to believe that 

the State’s existing SIP contains 

adequate provisions prohibiting sources 

from emitting visibility impairing 

pollutants in amounts which would 

interfere with neighboring states’ SIP 

measures to protect visibility. 

In addition, with regard to the 

visibility protection aspect of section 

110(a)(2)(J) of the CAA, as discussed in 

the TSD accompanying the NPR for this 

rulemaking, EPA stated that it 

recognizes that states are subject to 

visibility and regional haze program 

requirements under part C of the CAA. 

In the establishment of a new NAAQS 

such as the 2008 ozone NAAQS, 

however, the visibility and regional 

haze program requirements under part C 

of Title I of the CAA do not change and 

there are no applicable visibility 

obligations under part C ‘‘triggered’’ 

under section 110(a)(2)(J) when a new 

NAAQS becomes effective. Given this, 

Delaware was under no obligation to 

address section 110(a)(2)(J) in its 2008 

ozone infrastructure SIP. 

Comment 8: Sierra Club contends that 

EPA should not approve Delaware’s 

2008 eight-hour ozone infrastructure SIP 

revision because Delaware’s SIP fails to 

incorporate the 2008 ozone NAAQS of 

75 parts per billion (ppb) in Delaware 

Regulation 1103 and therefore fails to 

meet requirements of section 

110(a)(2)(A) and 110(a)(2)(E)(i) of the 

CAA. 

Response 8: Sierra Club is correct that 

Regulation 1103, as reflected in the 

existing Delaware SIP, does not 

reference the 2008 ozone NAAQS. 

However, Sierra Club fails to explain 

why they believe the failure of this 

regulation to reference the 2008 ozone 

standard would prevent approval of the 

infrastructure SIP. Regulation 1103 

specifically provides ‘‘[t]he absence of a 

specific ambient air quality standard 

shall not preclude actions by the 

Department to control contaminants to 

assure protection, safety, welfare, and 

comfort of the people of the State of 

Delaware.’’ Thus, even in the absence of 

an explicit reference to the 2008 ozone 

NAAQS, Regulation 1103 clearly 

provides that the State has the authority 

to adopt and implement regulations for 

that standard. Moreover, Sierra Club 

does not cite and EPA is not aware of 

any other provisions in Delaware’s 

regulations that would undermine such 

authority. While certain regulations 

reference specific ozone NAAQS in the 

‘‘purposes’’ section (see e.g., Regulation 

1142) in the context of describing the 

designation of areas for those standards, 

we have not identified any regulations 

that would expire or would no longer be 

effective for purposes of the 2008 ozone 

NAAQS. In short, EPA sees nothing in 

the SIP that indicates that the State does 

not have the ability to implement and 

enforce the 2008 ozone NAAQS. 

Although we do not believe that the 

failure of Regulation 1103 to specifically 

reference the 2008 ozone NAAQS 

renders the infrastructure SIP 

unapprovable, EPA notes that the State 

recently revised Regulation 1103 to 

expressly include that standard and 

submitted that regulation to EPA as a 

SIP revision dated February 17, 2014. 

EPA plans to act on that SIP submission 

shortly. 

Comment 9: Sierra Club contends that 

EPA should not approve Delaware’s 

2008 eight-hour ozone infrastructure SIP 

revision until EPA and Delaware clarify 

what was intended by citing to two 

provisions of Delaware regulations in 

EPA’s TSD for the NPR. First, Sierra 

Club comments that EPA cited to 7 DE 

Admin. Code 1137 to satisfy section 

110(a)(2)(F) of the CAA. The commenter 

states it could not find 7 DE Admin. 

Code 1137 in the Delaware General 

Assembly: Delaware Regulations: 

Administrative Code: Title 7: 1000: 

1100. Second, the commenter mentions 

that EPA cited in its TSD to 7 Del. C. 

Chapter 29 in discussing the 

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

the CAA relating to public notification 

and states 7 Del. C. Chapter 29 is not 

relevant to the 2008 ozone NAAQS. 

Response 9: EPA agrees with the 

commenter regarding the incorrect 

reference to these two provisions; 

however, EPA disagrees with the 

commenter that EPA cannot approve the 

Delaware infrastructure SIP submittal 

for 2008 ozone NAAQS. After reviewing 

Delaware’s March 27, 2013 

infrastructure SIP submittal and EPA’s 

TSD reviewing that SIP submittal, EPA 

acknowledges that Delaware 

inadvertently included a citation to 

Delaware Regulation 1137 in its March 

27, 2013 SIP submittal listing provisions 

meeting requirements in section 

110(a)(2)(F) of the CAA, and EPA 

inadvertently also refers to Delaware 

Regulation 1137 when discussing in the 

TSD how Delaware met the 

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


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Federal Register / Vol. 79, No. 64 / Thursday, April 3, 2014 / Rules and Regulations 18653 

the CAA. Sierra Club correctly 

identified that there is no Delaware 

Regulation 1137. However, EPA believes 

this was merely a typographical mistake 

within a list of applicable regulations 

which do address Delaware’s programs 

for monitoring and reporting in both 

Delaware’s SIP submittal and in EPA’s 

TSD. As mentioned in the TSD, 

Delaware has numerous regulations 

within its program and SIP for requiring 

installation and maintenance of 

monitoring equipment and periodic 

emissions reporting including 7 DE 

Admin. Codes 1112, 1123, 1124, 1126, 

1131, 1139, 1140, 1141, 1142, and 

others in the approved Delaware SIP, 

which is identified at 40 CFR 52.420(c). 

EPA maintains these provisions 

appropriately support Delaware’s ozone 

infrastructure SIP for section 

110(a)(2)(F) for adequate provisions for 

monitoring and reporting. EPA’s and 

Delaware’s inadvertent inclusion of the 

reference to Regulation 1137 was merely 

a typographical mistake and immaterial 

to EPA’s conclusion regarding 

approvability of the Delaware SIP 

submission. 

Regarding Sierra Club’s second 

comment, EPA acknowledges it 

inadvertently refers to 7 Del. C. Chapter 

29 as an additional provision which 

satisfies section 110(a)(2)(J)’s 

requirements relating to public 

notification. EPA believes the remaining 

Delaware provision discussed in EPA’s 

TSD for section 110(a)(2)(J) 

requirements related to public notice, 7 

Del. C. Chapter 60, adequately supports 

that Delaware has met the requirements 

of section 110(a)(2)(J) of the CAA. 7 Del. 

C. Chapter 60 requires SIP revisions and 

new or amended regulations to undergo 

public notice and hearing, publication 

in newspapers and in the Delaware 

Register, and opportunity for comment 

by the public and local political 

subdivisions. Therefore, EPA believes it 

appropriately proposed that Delaware’s 

March 27, 2013 infrastructure SIP 

submittal for the 2008 ozone NAAQS 

meets all requirements of section 

110(a)(2)(F) and 110(a)(2)(J) of the CAA. 

EPA’s inadvertent mention of 7 Del. C. 

Chapter 29 is immaterial to EPA’s 

conclusion regarding approvability of 

the Delaware SIP submission. 

IV. Final Action 

EPA is approving Delaware’s 

submittal which provides the basic 

program elements specified in sections 

110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), and (M) of 

the CAA, necessary to implement, 

maintain, and enforce the 2008 ozone 

NAAQS, as a revision to the Delaware 

SIP. This rulemaking action does not 

include approval of Delaware’s 

submittal for section 110(a)(2)(I) of the 

CAA which pertains to the 

nonattainment requirements of part D, 

Title I of the CAA, since this element is 

not required to be submitted by the 3- 

year submission deadline of section 

110(a)(1) of the CAA and will be 

addressed in a separate process. This 

rulemaking action also does not include 

approval of the portion of Delaware’s 

submittal relating to section 

110(a)(2)(D)(i)(I) which will be 

addressed in a separate rulemaking 

action. 

V. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 2, 2014. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action pertaining to 

Delaware’s section 110(a)(2) 

infrastructure elements for the 2008 

ozone NAAQS may not be challenged 

later in proceedings to enforce its 

requirements. (See section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Ozone, Reporting and 

recordkeeping requirements. 


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18654 Federal Register / Vol. 79, No. 64 / Thursday, April 3, 2014 / Rules and Regulations 

Dated: March 21, 2014. 

W.C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart I— Delaware 

■ 2. In § 52.420, the table in paragraph 

(e) is amended by adding an entry for 

Section 110(a)(2) Infrastructure 

Requirements for the 2008 Ozone 

NAAQS at the end of the table to read 

as follows: 

§ 52.420 Identification of plan. 

* * * * * 

(e) * * * 

Name of non-regulatory SIP 

revision 

Applicable 

geographic 

area 

State 

submittal 

date 

EPA approval date Additional explanation 

*******

Section 110(a)(2) Infrastructure Requirements for the 

2008 Ozone NAAQS.

Statewide ............ 3/27/13 4/3/14 [Insert Federal Register page number where 

the document begins and 

date].

This action addresses the following CAA 

elements: 110(a)(2)(A), (B), (C), (D)(i)(II), 

(D)(ii), (E), (F), (G), (H), (J), (K), (L), and 

(M). 

[FR Doc. 2014–07459 Filed 4–2–14; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Part 246 

Defense Federal Acquisition 

Regulation Supplement; Technical 

Amendments 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is making technical 

amendments to the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to provide needed editorial 

changes. 

DATES: Effective April 3, 2014. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Manuel Quinones, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 571–372–6088; 

facsimile 571–372–6094. 

SUPPLEMENTARY INFORMATION: 

This final rule amends the DFARS as 

follows: 

1. Correct typographical error at 

246.710(1)(ii). 

List of Subjects in 48 CFR Part 246 

Government procurement. 

Manuel Quinones, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, 48 CFR part 246 is 

amended as follows: 

PART 246—QUALITY ASSURANCE 

■ 1. The authority citation for 48 CFR 

part 246 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

246.710 [Amended] 

■ 2. Section 246.710 paragraph (1)(ii) is 

amended by removing ‘‘alternate’’ and 

adding ‘‘alternate I’’ in its place. 

[FR Doc. 2014–07398 Filed 4–2–14; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 130925836–4174–02] 

RIN 0648–XD215 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pollock in Statistical 

Area 630 in the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for pollock in Statistical Area 

630 in the Gulf of Alaska (GOA). This 

action is necessary to prevent exceeding 

the B season allowance of the 2014 total 

allowable catch of pollock for Statistical 

Area 630 in the GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), March 31, 2014, through 

1200 hrs, A.l.t., May 31, 2014. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The B season allowance of the 2014 

total allowable catch (TAC) of pollock in 

Statistical Area 630 of the GOA is 3,636 

metric tons (mt) as established by the 

final 2014 and 2015 harvest 

specifications for groundfish of the GOA 

(79 FR 12890, March 6, 2014). 

In accordance with § 679.20(d)(1)(i), 

the Regional Administrator has 

determined that the B season allowance 

of the 2014 TAC of pollock in Statistical 

Area 630 of the GOA will soon be 

reached. Therefore, the Regional 

Administrator is establishing a directed 

fishing allowance of 3,136 mt and is 

setting aside the remaining 500 mt as 

bycatch to support other anticipated 

groundfish fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 


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