Federal Register / Vol. 87, No. 106 / Thursday, June 2, 2022 / Proposed Rules 33461 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. We have analyzed 

this proposed rule under that Order and 

have determined that it is consistent 

with the fundamental federalism 

principles and preemption requirements 

described in Executive Order 13132. 

Also, this proposed rule does not have 

tribal implications under Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments) because it would not 

have a substantial direct effect on one or 

more Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

If you believe this proposed rule has 

implications for federalism or Indian 

tribes, please contact the person listed 

in the FOR FURTHER INFORMATION

CONTACT section. 

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this 

proposed rule will not result in such an 

expenditure, we do discuss the effects of 

this proposed rule elsewhere in this 

preamble. 

F. Environment

We have analyzed this rule under

Department of Homeland Security 

Management Directive 023–01, Rev.1, 

associated implementing instructions, 

and Environmental Planning Policy 

COMDTINST 5090.1 (series), which 

guide the Coast Guard in complying 

with the National Environmental Policy 

Act of 1969 (NEPA) (42 U.S.C. 4321– 

4370f). The Coast Guard has determined 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. This proposed 

rule promulgates the operating 

regulations or procedures for 

drawbridges. Normally such actions are 

categorically excluded from further 

review, under paragraph L49, of Chapter 

3, Table 3–1 of the U.S. Coast Guard 

Environmental Planning 

Implementation Procedures. 

Neither a Record of Environmental 

Consideration nor a Memorandum for 

the Record are required for this rule. We 

seek any comments or information that 

may lead to the discovery of a 

significant environmental impact from 

this proposed rule. 

V. Public Participation and Request for

Comments

We view public participation as 

essential to effective rulemaking, and 

will consider all comments and material 

received during the comment period. 

Your comment can help shape the 

outcome of this rulemaking. If you 

submit a comment, please include the 

docket number for this rulemaking, 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. 

Submitting comments. We encourage 

you to submit comments through the 

Federal Decision Making Portal at 

https://www.regulations.gov. To do so, 

go to https://www.regulations.gov, type 

USCG–2022–0015 in the search box and 

click ‘‘Search.’’ Next, look for this 

document in the Search Results column, 

and click on it. Then click on the 

Comment option. If your material 

cannot be submitted using https://

www.regulations.gov, contact the person 

in the FOR FURTHER INFORMATION

CONTACT section of this document for 

alternate instructions. 

Viewing material in docket. To view 

documents mentioned in this proposed 

rule as being available in the docket, 

find the docket as described in the 

previous paragraph, and then select 

‘‘Supporting & Related Material’’ in the 

Document Type column. Public 

comments will also be placed in our 

online docket and can be viewed by 

following instructions on the https://

www.regulations.gov Frequently Asked 

Questions web page. We review all 

comments received, but we will only 

post comments that address the topic of 

the proposed rule. We may choose not 

to post off-topic, inappropriate, or 

duplicate comments that we receive. 

Additionally, if you go to the online 

docket and sign up for email alerts, you 

will be notified when comments are 

posted or a final rule is published of any 

posting or updates to the docket. 

We accept anonymous comments. 

Comments we post to https://

www.regulations.gov will include any 

personal information you have 

provided. For more about privacy and 

submissions in response to this 

document, see DHS’s eRulemaking 

System of Records notice (85 FR 14226, 

March 11, 2020). 

List of Subjects in 33 CFR Part 117 

Bridges. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 117 as follows: 

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

■ 1. The authority citation for part 117 

continues to read as follows:

Authority: 33 U.S.C. 499; 33 CFR 1.05–1; 

DHS Delegation No. 0170.1. 

■ 2. Amend § 117.285 by revising 

paragraph (a) to read as follows:

§ 117.285 Grand Canal.

(a) The draw of the Lansing Island

Bridge, mile 0.7, at Indian Harbour 

Beach, shall open on signal, except that 

from 10 p.m. to 6 a.m., daily, the draw 

need not open for the passage of vessels 

and will be untended. 

* * * * * 

Dated: May 25, 2022.

Brendan C. McPherson, 

Rear Admiral, U.S. Coast Guard, Commander 

Coast Guard Seventh District. 

[FR Doc. 2022–11744 Filed 6–1–22; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2022–0359; FRL–9886–01– 

R8] 

Air Plan Approval; North Dakota; 

Removal of Exemptions to Visible Air 

Emissions Restrictions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision it received on November 11, 

2016, submitted by the State of North 

Dakota, through the North Dakota 

Department of Health (NDDH). The 

revision was submitted by North Dakota 

in response to a finding of substantial 

inadequacy and SIP call published on 

June 12, 2015, for a provision in the 

North Dakota SIP related to excess 

emissions during startup, shutdown, 

and malfunction (SSM) events. EPA is 

proposing approval of the SIP revision 

and proposing to determine that this SIP 

revision corrects the deficiency 

identified in the June 12, 2015, SIP call. 

DATES: Comments must be received on 

or before July 5, 2022. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2022–0359 at https:// 


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33462 Federal Register / Vol. 87, No. 106 / Thursday, June 2, 2022 / Proposed Rules 

1State Implementation Plans: Response to 

Petition for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls to Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown, and Malfunction, 78 FR 12460 

(February 22, 2013). 

2 In 2017, the North Dakota State legislature 

created the NDDEQ that assumed all the duties and 

responsibilities of the NDDH’s Environmental 

Health Section. To accommodate the new NDDEQ, 

the North Dakota Air Pollution Control Law was 

recodified in the North Dakota Century Code 

(NDCC) as NDCC 23.1–06 and the Air Pollution 

Rules were recodified in the North Dakota 

Administrative Code (NDAC) as NDAC 33.1–15. 

3October 9, 2020, memorandum ‘‘Inclusion of 

Provisions Governing Periods of Startup, 

Shutdown, and Malfunctions in State 

Implementation Plans,’’ from Andrew R. Wheeler, 

Administrator. 

4September 30, 2021, memorandum ‘‘Withdrawal 

of the October 9, 2020, Memorandum Addressing 

Startup, Shutdown, and Malfunctions in State 

Implementation Plans and Implementation of the 

Prior Policy,’’ from Janet McCabe, Deputy 

Administrator. 

5 80 FR 33985. 

6The North Dakota State Health Council adopted 

the amendments removing provision 33–15–03–0.3 

on February 24, 2016 (effective July 1, 2016). 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not 

electronically submit any information 

you consider to be Confidential 

Business Information (CBI) or other 

information, the disclosure of which is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit https://

www.epa.gov/dockets/commenting-epadockets. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Schmitt, Air and Radiation 

Division, EPA, Region 8, Mailcode 

8ARD–IO, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129, 

telephone number: (303) 312–6728, 

email address: schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document wherever 

‘‘we’’ or ‘‘our’’ is used, it refers to EPA. 

Table of Contents 

I. Background 

II. Analysis of SIP Submission 

III. Proposed Action 

IV. Incorporation by Reference 

V. Statutory and Executive Orders Review 

I. Background 

On February 22, 2013, EPA issued a 

Federal Register notice of proposed 

rulemaking outlining EPA’s policy at 

the time with respect to SIP provisions 

related to periods of SSM. EPA analyzed 

specific SSM SIP provisions and 

explained how each one either did or 

did not comply with the Clean Air Act 

(CAA) with regard to excess emission 

events.1 For each SIP provision that 

EPA determined to be inconsistent with 

the CAA, EPA proposed to find that the 

existing SIP provision was substantially 

inadequate to meet CAA requirements 

and thus proposed to issue a SIP call 

under CAA section 110(k)(5). 

On June 12, 2015, pursuant to CAA 

section 110(k)(5), EPA finalized ‘‘State 

Implementation Plans: Response to 

Petition for Rulemaking; Restatement 

and Update of EPA’s SSM Policy 

Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls to 

Amend Provisions Applying to Excess 

Emissions During Periods of Startup, 

Shutdown and Malfunction,’’ (80 FR 

33839, June 12, 2015), hereafter referred 

to as the ‘‘2015 SSM SIP Action.’’ The 

2015 SSM SIP Action clarified, restated, 

and updated EPA’s interpretation that 

SSM exemption and affirmative defense 

SIP provisions are inconsistent with 

CAA requirements. The 2015 SSM SIP 

Action found that certain SIP provisions 

in 36 states were substantially 

inadequate to meet CAA requirements 

and issued a SIP call to those states to 

submit SIP revisions to address the 

inadequacies. EPA established an 18- 

month deadline by which the affected 

states had to submit such SIP revisions. 

States were required to submit 

corrective revisions to their SIPs in 

response to the SIP calls by November 

22, 2016. In the 2015 SSM Action, EPA 

issued a SIP call for the North Dakota 

SIP, since EPA found that provision 33– 

15–03–04.3, located in the State’s SIP, is 

inconsistent with the CAA and the 2015 

SSM Policy because it allows for 

discretionary exemptions from 

otherwise applicable emission 

limitations through a State official’s 

unilateral exercise of discretionary 

authority that is insufficiently bounded. 

As noted in a previous footnote, shortly 

after North Dakota proposed the 

November 11, 2016 SIP revision, the 

State created a new environmental 

agency, the North Dakota Department of 

Environmental Quality (NDDEQ), and 

North Dakota’s Air Pollution rules were 

recodified under the NDAC as 33.1–15 

instead of 33–15.2 Therefore, from here 

on in this document, EPA will refer to 

provision 33–15–03.04.3 as 33.1–15.03– 

04.3. 

EPA issued a Memorandum in 

October 2020 (2020 Memorandum), 

which stated that certain provisions 

governing SSM periods in SIPs could be 

viewed as consistent with CAA 

requirements.3 Importantly, the 2020 

Memorandum stated that it ‘‘did not 

alter in any way the determinations 

made in the 2015 SSM SIP Action that 

identified specific State SIP provisions 

that were substantially inadequate to 

meet the requirements of the Act.’’ 

Accordingly, the 2020 Memorandum 

had no direct impact on the SIP call 

issued to North Dakota in 2015. The 

2020 Memorandum did, however, 

indicate EPA’s intent at the time to 

review SIP calls that were issued in the 

2015 SSM SIP Action to determine 

whether EPA should maintain, modify, 

or withdraw particular SIP calls through 

future agency actions. 

On September 30, 2021, EPA’s Deputy 

Administrator withdrew the 2020 

Memorandum and announced EPA’s 

return to the policy articulated in the 

2015 SSM SIP Action (2021 

Memorandum).4 As articulated in the 

2021 Memorandum, SIP provisions that 

contain exemptions or affirmative 

defense provisions are not consistent 

with CAA requirements and, therefore, 

generally are not approvable if 

contained in a SIP submission. This 

policy approach is intended to ensure 

that all communities and populations, 

including minority, low-income and 

indigenous populations overburdened 

by air pollution, receive the full health 

and environmental protections provided 

by the CAA.5 The 2021 Memorandum 

also retracted the prior statement from 

the 2020 Memorandum of EPA’s plans 

to review and potentially modify or 

withdraw particular SIP calls. That 

statement no longer reflects EPA’s 

intent. EPA intends to implement the 

principles laid out in the 2015 SSM SIP 

Action as the Agency takes action on 

SIP submissions, including North 

Dakota’s November 11, 2016 SIP 

submittal provided in response to the 

2015 SIP call. 

With regard to the North Dakota SIP, 

EPA proposes to approve the removal of 

provision 33.1–15–03–04.3 from Article 

33.1–15–03, Restriction of Emission of 

Visible Air Contaminants.6 This 

provision was among those that EPA 

determined were inconsistent with the 

CAA in the 2015 SSM SIP Action. 

Provision 33.1–15–03–04.3 stated that 

the otherwise applicable emission 


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Federal Register / Vol. 87, No. 106 / Thursday, June 2, 2022 / Proposed Rules 33463 

7For a more in-depth discussion on the 

inadequacies of 33–15–03–04.3, see our proposed 

2015 SSM SIP Action, 78 FR 12459, 12531–32. 

8See 83 FR 22227, May 14, 2018 (proposed rule) 

and 84 FR 11646, March 28, 2019 (final rule). 

limitations for opacity in several other 

listed regulations do not apply ‘‘where 

an applicable opacity standard is 

established for a specific source.’’ In the 

2015 SSM SIP Action, EPA determined 

that this provision allowed a State 

official to modify the opacity limits in 

a permit or other document to allow 

emissions in excess of the otherwise 

applicable SIP limitations. The detailed 

rationale for issuing the SIP call to 

North Dakota can be found in the 2015 

SSM SIP Action. In its November 11, 

2016 SIP submission, North Dakota is 

requesting that EPA revise the North 

Dakota SIP by removing 33.1–15–03– 

04.3 in its entirety, thereby removing 

this provision from the State’s SIP. 

II. Analysis of SIP Submission 

EPA is proposing to approve North 

Dakota’s November 11, 2016 SIP 

revision requesting the removal of 

provision 33.1–15–03–04.3 from the 

State’s SIP. We consider the removal of 

this provision sufficient to correct the 

inadequacies that EPA’s 2015 SSM SIP 

Action identified in the North Dakota 

SIP.7 As a result of the removal from the 

SIP, the impermissible discretionary 

exemptions from emissions limitations 

contained within this provision will no 

longer be available to sources. As 

explained in the 2015 SSM SIP Action 

(80 FR at 33848), the removal of an 

exemption is an appropriate way to 

address the inadequacy. EPA’s proposed 

approval of this revision is consistent 

with CAA section 110(l) because 

approval will not interfere with any 

applicable requirement of the CAA. 

Specifically, by removing the 

discretionary exemptions created by 

33.1–15–03–04.3, the SIP is now more 

protective. Therefore, we are proposing 

to approve the removal of this provision 

from the SIP. Because removal of this 

provision would fully address the 

inadequacies that the 2015 SSM SIP 

Action identified in the North Dakota 

SIP, this proposed action, if finalized, 

will satisfy North Dakota’s obligations 

pursuant to EPA’s 2015 SSM SIP 

Action. 

III. Proposed Action 

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). EPA 

is proposing to approve North Dakota’s 

November 11, 2016 SIP submission 

requesting removal of 33.1–15–03–04.3 

from the State SIP. We are proposing 

approval of the SIP revision because we 

have determined that it is consistent 

with the requirements for SIP provisions 

under the CAA. EPA is further 

proposing to determine that such SIP 

revision corrects the deficiency 

identified in the June 12, 2015, SIP call. 

EPA is not reopening the 2015 SSM SIP 

Action and is only taking comment on 

whether this SIP revision is consistent 

with CAA requirements and whether it 

addresses the substantial inadequacy in 

the specific North Dakota SIP provision 

(33.1–15–03–04.3) identified in the 2015 

SSM SIP Action. EPA has previously 

taken action on other parts of the North 

Dakota November 11, 2016 SIP 

submittal and therefore these other 

elements have not been addressed in 

this action nor will EPA be taking 

comments on those topics at this time.8

IV. Incorporation by Reference 

In this document, EPA is proposing to 

remove in a final rule, regulatory text 

that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, EPA is 

proposing to remove the incorporation 

by reference of ‘‘33.1–15–03–04.3’’ in 40 

CFR 52.1820, as described in Section II 

of this preamble. EPA has made, and 

will continue to make, these documents 

generally available through https://

www.regulations.gov and at the EPA 

Region 8 Office (please contact the 

person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

V. Statutory and Executive Order 

Reviews 

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 proposed 

action merely approves removal of State 

law not meeting Federal requirements 

and does not impose additional 

requirements beyond those already 

imposed by State law. For that reason, 

this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• 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, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: May 24, 2022. 

K.C. Becker, 

Regional Administrator, Region 8. 

[FR Doc. 2022–11584 Filed 6–1–22; 8:45 am] 

BILLING CODE 6560–50–P 


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