[Federal Register Volume 81, Number 227 (Friday, November 25, 2016)]
[Rules and Regulations]
[Pages 85156-85157]
[FR Doc No: 2016-28333]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 101

[Docket No. FDA-2000-N-0011]

Uniform Compliance Date for Food Labeling Regulations

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule.

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SUMMARY: The Food and Drug Administration (FDA or we) is establishing
January 1, 2020, as the uniform compliance date for food labeling
regulations that are issued between January 1, 2017, and December 31,
2018. We periodically announce uniform compliance dates for new food
labeling requirements to minimize the economic impact of label changes.

DATES: This rule is effective November 25, 2016. Submit electronic or
written comments by January 24, 2017.

ADDRESSES: You may submit comments as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov/.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov/
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov/.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper
submissions): Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Division of
Dockets Management, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2000-N-0011 for ``Uniform Compliance Date for Food Labeling
Regulations.'' Received comments will be placed in the docket and,
except for those submitted as ``Confidential Submissions,'' publicly
viewable at https://www.regulations.gov/ or at the Division of Dockets
Management between 9 a.m. and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on https://www.regulations.gov/. Submit both copies to the Division of Dockets
Management. If you do not wish your name and contact information to be
made publicly available, you can provide this information on the cover
sheet and not in the body of your comments and you must identify this
information as ``confidential.'' Any information marked as
``confidential'' will not be disclosed except in accordance with 21 CFR
10.20 and other applicable disclosure law. For more information about
FDA's posting of comments to public dockets, see 80 FR 56469, September
18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov/ and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Division of Dockets Management, 5630 Fishers
Lane, Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Philip L. Chao, Center for Food Safety
and Applied Nutrition (HFS-24), Food and Drug Administration, 5001
Campus Dr., College Park, MD 20740,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: We periodically issue regulations requiring
changes in the labeling of food. If the effective dates of these
labeling changes were not coordinated, the cumulative economic impact
on the food industry of having to respond separately to each change
would be substantial. Therefore, we periodically have announced uniform
compliance dates for new food labeling requirements (see, e.g., the
Federal Register of October 19, 1984 (49 FR 41019); December 24, 1996
(61 FR 67710); December 27, 1996 (61 FR 68145); December 23, 1998 (63
FR 71015); November 20, 2000 (65 FR 69666); December 31, 2002 (67 FR
79851); December 21, 2006 (71 FR 76599); December 8, 2008 (73 FR
74349); December 15, 2010 (75 FR 78155); November 28, 2012 (77 FR

70885); and December 10, 2014 (79 FR 73201)). Use of a uniform
compliance date provides for an orderly and economical industry
adjustment to new labeling requirements by allowing sufficient lead
time to plan for the use of existing label inventories and the
development of new labeling materials.
    We have determined under 21 CFR 25.30(k) that this action is of a
type that does not individually or cumulatively have a significant
effect on the human environment. Therefore, neither an environmental
assessment nor an environmental impact statement is required.
    This final rule contains no collections of information. Therefore,
clearance by the Office of Management and Budget under the Paperwork
Reduction Act of 1995 is not required.
    We have examined the impacts of the final rule under Executive
Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4). Executive Orders 12866 and 13563 direct Agencies to assess all
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity). We believe that this final rule is not a significant
regulatory action under Executive Order 12866.
    The establishment of a uniform compliance date does not in itself
lead to costs or benefits. We will assess the costs and benefits of the
uniform compliance date in the regulatory impact analyses of the
labeling rules that take effect at that date.
    The Regulatory Flexibility Act requires Agencies to analyze
regulatory options that would minimize any significant economic impact
of a rule on small entities. Because the final rule does not impose
compliance costs on small entities, we certify that the final rule will
not have a significant economic impact on a substantial number of small
entities.
    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires
that Agencies prepare a written statement, which includes an assessment
of anticipated costs and benefits, before issuing ``any rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any one year.'' The current threshold after adjustment
for inflation is $146 million, using the most current (2015) Implicit
Price Deflator for the Gross Domestic Product. We do not expect this
final rule to result in any 1-year expenditure that would meet or
exceed this amount.
    We have analyzed this final rule in accordance with the principles
set forth in Executive Order 13132. We have determined that the rule
does not contain policies that have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Accordingly, we have concluded that the
rule does not contain policies that have federalism implications as
defined in the Executive Order and, consequently, a federalism summary
impact statement is not required.
    This action is not intended to change existing requirements for
compliance dates contained in final rules published before January 1,
2017. Therefore, all final rules published by FDA in the Federal
Register before January 1, 2017, will still go into effect on the date
stated in the respective final rule. We generally encourage industry to
comply with new labeling regulations as quickly as feasible, however.
Thus, when industry members voluntarily change their labels, it is
appropriate that they incorporate any new requirements that have been
published as final regulations up to that time.
    In rulemaking that began with publication of a proposed rule on
April 15, 1996 (61 FR 16422), and ended with a final rule on December
24, 1996, we provided notice and an opportunity for comment on the
practice of establishing uniform compliance dates by issuance of a
final rule announcing the date. Receiving no comments objecting to this
practice, FDA finds any further advance notice and opportunity for
comment or delayed effective date unnecessary for establishment of the
uniform compliance date. Nonetheless, under 21 CFR 10.40(e)(1), we are
providing an opportunity for comment on whether the uniform compliance
date established by this final rule should be modified or revoked.
Interested parties will have an opportunity to comment on the
compliance date for each individual food labeling regulation as part of
the rulemaking process for that regulation.
    The new uniform compliance date will apply only to final FDA food
labeling regulations that require changes in the labeling of food
products and that publish after January 1, 2017, and before December
31, 2018. Those regulations will specifically identify January 1, 2020,
as their compliance date. All food products subject to the January 1,
2020, compliance date must comply with the appropriate regulations when
initially introduced into interstate commerce on or after January 1,
2020. If any food labeling regulation involves special circumstances
that justify a compliance date other than January 1, 2020, we will
determine for that regulation an appropriate compliance date, which
will be specified when the final regulation is published.

    Dated: November 18, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016-28333 Filed 11-23-16; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register Volume 77, Number 109 (Wednesday, June 6, 2012)]
[Proposed Rules]
[Pages 33372-33380]
[FR Doc No: 2012-13716]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0238; FRL-9681-8]

Approval and Promulgation of Implementation Plans; South
Carolina; 110(a)(1) and (2) Infrastructure Requirements for the 1997
and 2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plans
(SIP), submitted by the State of South Carolina, through the Department
of Health and Environmental Control (DHEC), as demonstrating that the
State meets the requirements of sections 110(a)(1) and (2) of the Clean
Air Act (CAA or the Act) for the 1997 annual and 2006 24-hour fine
particulate matter (PM2.5) national ambient air quality
standards (NAAQS). Section 110(a) of the CAA requires that each state
adopt and submit a SIP for the implementation, maintenance, and
enforcement of each NAAQS promulgated by the EPA, which is commonly
referred to as an ``infrastructure'' SIP. South Carolina certified that
the South Carolina SIP contains provisions that ensure the 1997 annual
and 2006 24-hour PM2.5 NAAQS is implemented, enforced, and
maintained in South Carolina (hereafter referred to as ``infrastructure
submission''). South Carolina's infrastructure submissions, provided to
EPA on March 14, 2008, and on September 18, 2009, addressed all the
required infrastructure elements for the 1997 annual and 2006 24-hour
PM2.5 NAAQS with the exception of section 110(a)(2)(E)(ii)
and 110(a)(2)(G) which were submitted by South Carolina on April 3,
2012. South Carolina's April 3, 2012, submittal is being addressed in a
separate action.

DATES: Written comments must be received on or before July 6, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0238, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R04-OAR-2012-0238,'' Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0238. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA

Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9043. Mr. Lakeman can be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how South Carolina addressed the
elements of sections 110(a)(1) and (2) ``Infrastructure''
provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997 (62 FR 36852), EPA established an annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations. At that time, EPA also established a 24-hour NAAQS of
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\
based on a 3-year average of annual mean PM2.5
concentrations, and promulgated a new 24-hour PM2.5 NAAQS of
35 [mu]g/m\3\ based on a 3-year average of the 98th percentile of 24-
hour concentrations. Pursuant to the CAA, SIPs meeting the requirements
of sections 110(a)(1) and (2) are to be submitted by states within
three years after promulgation of a new or revised NAAQS. Sections
110(a)(1) and (2) require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance of the NAAQS. States were required to submit
such SIPs to EPA no later than July 2000 for the 1997 annual
PM2.5 NAAQS, no later than October 2009 for the 2006 24-hour
PM2.5 NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 annual
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent
decree with Earthjustice which required EPA, among other things, to
complete a Federal Register notice announcing EPA's determinations
pursuant to section 110(k)(1)(B) as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state for the 1997
PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled,
``Completeness Findings for Section 110(a) State Implementation Plans
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS''
making a finding that each state had submitted or failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (See
73 FR 62902). For those states that did receive findings, the findings
of failure to submit for all or a portion of a state's implementation
plan established a 24-month deadline for EPA to promulgate a Federal
Implementation Plan to address the outstanding SIP elements unless,
prior to that time, the affected states submitted, and EPA approved,
the required SIPs.
    The findings that all or portions of a state's submission are
complete established a 12-month deadline for EPA to take action upon
the complete SIP elements in accordance with section 110(k). South
Carolina's infrastructure submissions were received by EPA on March 14,
2008, for the 1997 annual PM2.5 NAAQS and on September 18,
2009, for the 2006 24-hour PM2.5 NAAQS. The submissions were
determined to be complete on September 14, 2008, and March 18, 2010,
respectively. South Carolina was among other states that did not
receive findings of failure to submit because it had provided a
complete submission to EPA to address the infrastructure elements for
the 1997 PM2.5 NAAQS by October 3, 2008.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an
amended complaint related to EPA's failure to take action on the SIP
submittal related to the ``infrastructure'' requirements for the 2006
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a
consent decree with WildEarth Guardians and Sierra Club which required
EPA, among other things, to complete a Federal Register notice of the
Agency's final action either approving, disapproving, or approving in
part and disapproving in part the South Carolina 2006 24-hour
PM2.5 NAAQS Infrastructure SIP submittal addressing the
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except
for section 110(a)(2)(C) the nonattainment area requirements and
section 110(a)(2)(D)(i) interstate transport requirements, by September
30, 2012.
    Today's action is proposing to approve South Carolina's
infrastructure submission for the 1997 annual and 2006 24-hour
PM2.5 NAAQS for sections 110(a)(2)(A)-(H), (J)-(M), except
for sections 110(a)(2)(C)--the nonattainment area requirements;
110(a)(2)(D)(i)--the interstate transport requirements;
110(a)(2)(E)(ii)--board requirements; and 110(a)(2)(G)--emergency
powers. Requirements supporting EPA action on sections 110(a)(2)(E)(ii)
and 110(a)(2)(G) were submitted by South Carolina through a SIP
revision on April 3, 2012. South Carolina's April 3, 2012, SIP revision
is being addressed in a separate action. This action is not approving
any specific rule, but rather proposing that South Carolina's already
approved SIP meets certain CAA requirements.

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools

available at the time the state develops and submits the SIP for a new
or revised NAAQS affects the content of the submission. The contents of
such SIP submissions may also vary depending upon what provisions the
state's existing SIP already contains. In the case of the 1997 annual
and 2006 24-hour PM2.5 NAAQS, some states may need to adopt
language specific to the PM2.5 NAAQS to ensure that they
have adequate SIP provisions to implement the PM2.5 NAAQS.
    More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed below \1\ and in EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards.'' and
September 25, 2009, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine
Particle (PM2.5) National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA, and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) but does provide detail on how South Carolina's
SIP addresses 110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 and 2006
PM2.5 NAAQS. Interstate transport requirements were
formerly addressed by South Carolina consistent with the Clean Air
Interstate Rule (CAIR). On December 23, 2008, CAIR was remanded by
the DC Circuit Court of Appeals, without vacatur, back to EPA. See
North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008). Prior to this
remand, EPA took final action to approve South Carolina SIP
revision, which was submitted to comply with CAIR. See 72 FR 57209
(October 9, 2007). In so doing, South Carolina CAIR SIP revision
addressed the interstate transport provisions in section
110(a)(2)(D)(i) for the 1997 and 2006 PM2.5 NAAQS. In
response to the remand of CAIR, EPA has recently finalized a new
rule to address the interstate transport of nitrogen oxides
(NOX) and sulfur dioxide (SO2) in the eastern
United States. See 76 FR 48208 (August 8, 2011) (``the Transport
Rule''). That rule was recently stayed by the DC Circuit Court of
Appeals. EPA's action on element 110(a)(2)(D)(i) will be addressed
in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' and
the September 25, 2009, memorandum entitled ``Guidance on SIP
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine
Particle (PM2.5) National Ambient Air Quality
Standards,'' but as mentioned above is not relevant to today's
proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\5\ Those Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources (SSM), that may be contrary to the
CAA and EPA's policies addressing such excess emissions; and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (director's
discretion). EPA notes that there are two other substantive issues for
which EPA likewise stated in other proposals that it would address
separately: (i) Existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (minor source NSR); and
(ii) existing provisions for Prevention of Significant Deterioration
(PSD) programs that may be inconsistent with current requirements of
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002),
as amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). In light of
the comments, EPA believes that its statements in various proposed
actions on infrastructure SIPs with respect to these four individual
issues should be explained in greater depth. It is important to
emphasize that EPA is taking the same position with respect to these
four substantive issues in this action on the infrastructure SIPs for
the 1997 and 2006 PM2.5 NAAQS from South Carolina.
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    \5\ See Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing state provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion,

minor source NSR, and NSR Reform issues. EPA's objective was to make
clear that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
re-approval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the infrastructure SIP for South Carolina.
    Unfortunately, the Commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's implementation plan contains adequate provisions
to prevent significant contribution to nonattainment of the NAAQS in
other states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See ``Rule To
Reduce Interstate Transport of Fine Particulate Matter and Ozone
(Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOx SIP Call; Final Rule,'' 70 FR 25162 (May 12,
2005) (defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's
implementation plans. Finally, EPA notes that not every element of
section 110(a)(2) would be relevant, or as relevant, or relevant in the
same way, for each new or revised NAAQS and the attendant
infrastructure SIP submission for that NAAQS. For example, the
monitoring requirements that might be necessary for purposes of section
110(a)(2)(B) for one NAAQS could be very different than what might be
necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See ``Guidance for State Implementation
Plan (SIP) Submissions To Meet Current Outstanding Obligations Under
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director, Air Quality Policy Division OAQPS, to Regional Air
Division Director, Regions I-X, dated August 15, 2006.
    \10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------

    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements

of section 110(a)(2), and this also demonstrates the need to identify
the applicable elements for other SIP submissions. For example,
nonattainment SIPs required by part D likewise have to meet the
relevant subsections of section 110(a)(2) such as section 110(a)(2)(A)
or (E). By contrast, it is clear that nonattainment SIPs would not need
to meet the portion of section 110(a)(2)(C) that pertains to part C,
i.e., the PSD requirements applicable in attainment areas.
Nonattainment SIPs required by part D also would not need to address
the requirements of section 110(a)(2)(G) with respect to emergency
episodes, as such requirements would not be limited to nonattainment
areas. As this example illustrates, each type of SIP submission may
implicate some subsections of section 110(a)(2) and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ However, for the one exception to that general
assumption (i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS), EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
State would work with its corresponding EPA regional office to refine
the scope of a State's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the State's implementation plans for the NAAQS in
question.
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    \11\ See ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director, Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by the
Commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions. The same holds
true for this action on the infrastructure SIPs for South Carolina.
---------------------------------------------------------------------------

    \15\ See ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director, Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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    EPA believes that this approach to the infrastructure SIP
requirement is reasonable because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to

need a specific SIP revision in light of the new or revised NAAQS.
Thus, for example, EPA's 2007 Guidance specifically directed states to
focus on the requirements of section 110(a)(2)(G) for the 1997
PM2.5 NAAQS because of the absence of underlying EPA
regulations for emergency episodes for this NAAQS and an anticipated
absence of relevant provisions in existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
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    \16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa, Arizona, California,
Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004)
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 2010) (proposed
disapproval of director's discretion provisions); 76 FR 4540
(January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how South Carolina addressed the elements
of sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    South Carolina's infrastructure submission addresses the provisions
of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: South
Carolina's infrastructure submissions provide an overview of the
provisions of the South Carolina's Air Pollution Control Requirements
relevant to air quality control regulations. The regulations listed
below have been federally approved in the South Carolina SIP and
include enforceable emission limitations and other control measures:
     Regulation 61-62.1--Definitions, Permit Requirements, and
Emissions Inventory;
     Regulation 61-62.2--Prohibition of Open Burning;
     Regulation 61-62.5--Standard No. 1, Emissions form Fuel
Burning Operations; Standard No. 2, Ambient Air Quality Standards; and
Standard No. 4, Emission from Process Industries; Standard No. 6,
Alternative Emissions Limitation Options;
     Regulation 61-62.6-- Control of Fugitive Particulate
Matter; and,
     Regulation 61-30--(state-only regulation)--Environmental
Protection Fees.
    EPA has made the preliminary determination that the provisions
contained in these chapters and South Carolina's practices are adequate
to protect the PM2.5 annual and 24-hour NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during SSM of
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency plans to address such state regulations in the future. In the
meantime, EPA encourages any state having deficient SSM provisions to
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: South
Carolina's Regulation 61-62.1, Section II, Permit Requirements, and
Section IV, Source Tests, along with the South Carolina Network
Description and Ambient Air Monitoring Network Plan, provide for an
ambient air quality monitoring system in the State. Annually, EPA
approves the ambient air monitoring network plan for the state
agencies. On July 18, 2011, South Carolina submitted its plan to EPA.
On October 12, 2011, EPA approved South Carolina's monitoring network
plan. South Carolina's approved monitoring network plan can be accessed
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0238. EPA
has made the preliminary determination that South Carolina's SIP and
practices are adequate for the ambient air quality monitoring and data
systems related to the 1997 annual and 2006 24-hour PM2.5
NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures
including review of proposed new sources: The regulations described
below have been federally approved in the South Carolina SIP and
pertain to the construction or modification of any major stationary
source in areas designated as attainment, nonattainment or
unclassifiable:
     Regulation 61-62.1, Section II, Permit Requirements;
     Regulation 61-62.5, Standard No. 7, Prevention of
Significant Deterioration; and,
     Regulation 61-62.5, Standard No. 7.1, Nonattainment New
Source Review.

South Carolina's SIP is current with regard to PSD requirements.\19\ On
June 23, 2011, EPA approved several revisions to South Carolina's SIP
to

update requirements for the State's PSD program. See 76 FR 36875.
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    \19\ On June 11, 2010, the South Carolina Governor signed an
Executive Order to confirm that the State had authority to implement
appropriate emission thresholds for determining which new stationary
sources and modification projects become subject to PSD permitting
requirements for their Greenhouse Gas emissions at the state level.
A copy of the Executive Order and a letter of clarification can be
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0238.
---------------------------------------------------------------------------

    In this action, EPA is proposing to approve South Carolina's
infrastructure SIP for the 1997 annual and 2006 24-hour
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. EPA is not proposing to approve or
disapprove the State's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
    EPA has made the preliminary determination that South Carolina's
SIP and practices are adequate for program enforcement of control
measures including review of proposed new sources related to the 1997
annual and 2006 24-hour PM2.5 NAAQS.
    4. 110(a)(2)(D)(ii) Interstate and International transport
provisions: Regulation 61-62.5 Standard 7, Prevention of Significant
Deterioration, outlines how the State will notify neighboring states of
potential impacts from new or modified sources. South Carolina does not
have any pending obligation under sections 115 and 126 of the CAA. EPA
has made the preliminary determination that South Carolina's SIP and
practices are adequate for insuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    5. 110(a)(2)(E) Adequate resources: Section 110(a)(2)(E) requires
that each implementation plan provide (i) necessary assurances that the
State will have adequate personnel, funding, and authority under state
law to carry out its implementation plan, (ii) that the State comply
with the requirements respecting State Boards pursuant to section 128
of the Act, and (iii) necessary assurances that, where the State has
relied on a local or regional government, agency, or instrumentality
for the implementation of any plan provision, the State has
responsibility for ensuring adequate implementation of such plan
provisions. As with the remainder of the infrastructure elements
addressed by this notice, EPA is proposing to approve South Carolina's
SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i) and
(iii). With respect to 110(a)(2)(E)(ii) (regarding state boards), South
Carolina's submission is being addressed in a separate action. EPA's
rationale for today's proposals respecting sub-elements (i) and (iii)
is described in turn below.
    In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), DHEC's legal authority to establish SIPs and
implement related plans, in general, is prescribed in S.C. Code Ann.
Title 48, Chapter 1, Pollution Control Act. Specifically, S.C. Code
Ann. Section 48-1-50(12) grants DHEC the statutory authority to
``[a]ccept, receive and administer grants or other funds or gifts for
the purpose of carrying out any of the purposes of this chapter;
accept, receive and receipt for Federal money given by the Federal
government under any Federal law to the State of South Carolina for air
or water control activities, surveys or programs * * *.'' S.C. Code
Ann. Title 48, Chapter 2, Environmental Protection Funds, grants DHEC
statutory authority to establish environmental protection funds.
Additionally, Regulation 61-30, Environmental Protection Fees, provides
DHEC with the ability to access fees for environmental permitting
programs. In addition, the requirements of 110(a)(2)(E)(i) and
110(a)(2)(E)(iii) are met when EPA performs a completeness
determination for each SIP submittal. This determination ensures that
each submittal provides evidence that adequate personnel, funding, and
legal authority under State Law has been used to carry out the state's
implementation plan and related issues. South Carolina's authority is
included in all prehearings and final SIP submittal packages for
approval by EPA.
    Annually, states update grant commitments based on current SIP
requirements, air quality planning, and applicable requirements related
to the NAAQS, including 1997 annual and 2006 24-hour PM2.5
NAAQS. On March 8, 2012, EPA submitted a letter to South Carolina
outlining 105 grant commitments and current status for fiscal year
2011. The letter EPA submitted to South Carolina can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0238. There
were no outstanding issues, therefore South Carolina's grants were
finalized and closed out. EPA has made the preliminary determination
that South Carolina has adequate resources for implementation of the
1997 annual and 2006 24-hour PM2.5 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with
section 128 of the CAA. Section 128 requires that: (1) The majority of
members of the state body which approves permits or enforcement orders
represent the public interest and do not derive any significant portion
of their income from persons subject to permitting or enforcement
orders under the CAA; and (2) any potential conflicts of interest by
such body be adequately disclosed. As stated above section
110(a)(2)(E)(ii) is being addressed in a separate action.
    6. 110(a)(2)(F) Stationary source monitoring system: Regulation 61-
62.1, Definitions and General Requirements, Section III--Emissions
Inventory, of the South Carolina SIP provides for an emission inventory
plan that establishes reporting requirements. DHEC uses this data to
track progress towards maintaining the NAAQS, develop control and
maintenance strategies, identify sources and general emission levels,
and determine compliance with emission regulations and additional EPA
requirements.
    Additionally, South Carolina is required to submit emissions data
to EPA for purposes of the National Emissions Inventory (NEI). The NEI
is EPA's central repository for air emissions data. EPA published the
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory System
(EIS). States report emissions data for the six criteria pollutants and
the precursors that form them--NOX, SO2, ammonia,
lead, carbon monoxide, particulate matter, and volatile organic
compounds (VOCs). Many states also voluntarily report emissions of
hazardous air pollutants. South Carolina made its latest update to the
NEI on December 21, 2011. EPA compiles the emissions data,
supplementing it where necessary, and releases it to the general public
through

the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has
made the preliminary determination that South Carolina's SIP and
practices are adequate for the stationary source monitoring systems
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    7. 110(a)(2)(H) Future SIP revisions: As previously discussed, DHEC
is responsible for adopting air quality rules and revising SIPs as
needed to attain or maintain the NAAQS. South Carolina has the ability
and authority to respond to calls for SIP revisions, and has provided a
number of SIP revisions over the years for implementation of the PM
NAAQS. Specific to the 1997 annual and 2006 24-hour PM2.5
NAAQS, South Carolina has provided the following submissions:
     November 19, 2004, SIP Revision--(EPA approval, 72 FR
46903, August 22, 2007) Revisions to Ambient Air Quality Standards;
     August 14, 2007, SIP Revision--(EPA approval, 72 FR 57209,
October 9, 2007) Clean Air Interstate Rule;
     December 2, 2010, SIP Revision--(EPA approval, 76 FR
36875, June 23, 2011) New Source Review PM2.5; and,
     March 14, 2011, SIP Revision--(EPA approval, 76 FR 36875,
June 23, 2011) New Source Review PM2.5.
    EPA has made the preliminary determination that South Carolina's
SIP and practices adequately demonstrate a commitment to provide future
SIP revisions related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
    8. 110(a)(2)(J) (121 consultation) Consultation with government
officials: South Carolina Air Regulation 61-62.5, Air Pollution Control
Standards, Standard No. 7, Prevention of Significant Deterioration, as
well as the Regional Haze Implementation Plan (which allows for
consultation between appropriate state, local, and tribal air pollution
control agencies as well as the corresponding Federal Land Managers),
provide for consultation with government officials whose jurisdictions
might be affected by SIP development activities. More specifically,
South Carolina adopted state-wide consultation procedures for the
implementation of transportation conformity which includes the
consideration of the development of mobile inventories for SIP
development. Required partners covered by South Carolina's consultation
procedures include federal, state and local transportation and air
quality agency officials. EPA approved South Carolina's consultation
procedures on July 28, 2009 (See 74 FR 37168). EPA has made the
preliminary determination that South Carolina's SIP and practices
adequately demonstrate consultation with government officials related
to the 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
    9. 110(a)(2)(J) (127 public notification) Public notification: DHEC
has several public notice mechanisms in place to notify the public of
PM2.5 and other pollutant forecasting, including an air
quality monitoring Web site. South Carolina also has an extensive
outreach program to educate the public and promote the use of voluntary
emissions reduction measures. Such outreach programs include the
State's open burning awareness program. In addition DHEC has produced
public education materials including factsheets on the following
topics: PM generally including a link to EPA PM Web page, ``How smoke
from fires can affect your health, ``Particle pollution and your
health'' and ``Protect your lungs from wildlife smoke.'' Regulation 61-
62.3, Air Pollution Episodes, requires that DHEC notify the public of
any air pollution episode or NAAQS violation. EPA has made the
preliminary determination that South Carolina's SIP and practices
adequately demonstrate the State's ability to provide public
notification related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
    10. 110(a)(2)(J) (PSD) PSD and visibility protection: South
Carolina demonstrates its authority to regulate new and modified
sources of PM to assist in the protection of air quality in Regulation
61-62.1, Definitions and General Requirements, Section II, Permit
Resources, and Regulation 61-62.5, Air Pollution Control Standards,
Standard No. 7, Prevention of Significant Deterioration, and 7.1,
Nonattainment New Source Review. South Carolina's SIP is current with
regard to PSD requirements. On June 23, 2011, EPA approved several
revisions to South Carolina's SIP to update requirements for the
State's PSD program. See 76 FR 36875.
    With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under Part C of the Act (which
includes sections 169A and 169B). In the event of the establishment of
a new NAAQS, however, the visibility and regional haze program
requirements under part C do not change. Thus, EPA finds that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. This would be the case even in the
event a secondary PM2.5 NAAQS for visibility is established,
because this NAAQS would not affect visibility requirements under part
C. South Carolina has submitted SIP revisions for approval to satisfy
the requirements of the CAA Section 169A, and the regional haze and
best available retrofit technology rules contained in 40 CFR 51.308.
These revisions are currently under review and will be acted on in a
separate action. EPA has made the preliminary determination that South
Carolina's SIP and practices adequately demonstrate the State's ability
to implement PSD programs and to provide for visibility protection
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
    11. 110(a)(2)(K) Air quality and modeling/data: South Carolina
Regulation 61-62.5, Air Pollution Control Standards, Standards No. 2,
Ambient Air Quality Standards, and No. 7, Prevention of Significant
Deterioration, require that air modeling be conducted to determine
permit applicability. These standards demonstrate that South Carolina
has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 1997 annual and
2006 24-hour PM2.5 NAAQS. Additionally, South Carolina
supports a regional effort to coordinate the development of emissions
inventories and conduct regional modeling for several NAAQS, including
the 1997 annual and 2006 24-hour PM2.5 NAAQS, for the
Southeastern states. Taken as a whole, South Carolina's air quality
regulations demonstrate that South Carolina has the authority to
provide relevant data for the purpose of predicting the effect on
ambient air quality of the 1997 annual and 2006 24-hour
PM2.5 NAAQS. EPA has made the preliminary determination that
South Carolina's SIP and practices adequately demonstrate the State's
ability to provide for air quality and modeling, along with analysis of
the associated data, related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: Pursuant to S.C. Code Ann.
Section 48-2-50, DHEC shall charge fees for environmental programs it
administers pursuant to federal and state law and regulations.
Regulation 61-30, Environmental Protection Fees, prescribes fees
applicable to applicants and holders of permits, licenses,
certificates, certifications, and registrations as well as establishes
procedures for the payment of fees, provides for the assessment of
penalties for nonpayment, and establishes an appeals process for
refuting fees. EPA has made the preliminary determination

that South Carolina's SIP and practices adequately provide for
permitting fees related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
    13. 110(a)(2)(M) Consultation/participation by affected local
entities: Regulation 61-62.5, Air Pollution Control Standards, Standard
No. 7, Prevention of Significant Deterioration, of the South Carolina
SIP requires that DHEC notify the public of the application,
preliminary determination, degree of incremental consumption, and the
opportunity for comment prior to making a final permitting decision.
DHEC has worked closely with local political subdivisions when
developing its Transportation Conformity SIP, Regional Haze
Implementation Plan, Early Action Compacts, and the 8-hour Ozone
Attainment Demonstration for York County, South Carolina portion of the
Charlotte-Gastonia-Rock Hill NC-SC nonattainment area. EPA has made the
preliminary determination that South Carolina's SIP and practices
adequately demonstrate consultation with affected local entities when
necessary.

V. Proposed Action

    As described above, DHEC has addressed the elements of the CAA
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007,
and September 25, 2009, guidance to ensure that the 1997 annual and
2006 24-hour PM2.5 NAAQS are implemented, enforced, and
maintained in South Carolina. EPA is proposing to approve South
Carolina's infrastructure submission for the 1997 annual and 2006 24-
hour PM2.5 NAAQS, specifically 1997 annual and 2006 24-hour
PM2.5 NAAQS for sections 110(a)(2)(A)-(H), (J)-(M), with the
exception of 110(a)(2)(C) the nonattainment area requirements,
110(a)(2)(D)(i), sub-element 110(a)(2)(E)(ii) and 110(a)(2)(G) for
section because its March 14, 2008, and September 18, 2009, submissions
are consistent with section 110 of the CAA.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 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 state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National 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).

EPA has preliminarily determined that this proposed rule does not have
tribal implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because there are no ``substantial direct effects''
on an Indian Tribe as a result of this action. The Catawba Indian
Nation Reservation is located within the South Carolina portion of the
bi-state Charlotte nonattainment area. Pursuant to the Catawba Indian
Claims Settlement Act, S.C. Code Ann. 27-16-120, ``all state and local
environmental laws and regulations apply to the Catawba Indian Nation
and Reservation and are fully enforceable by all relevant state and
local agencies and authorities.'' Thus, the South Carolina SIP applies
to the Catawba Reservation. EPA has also preliminarily determined that
these revisions will not impose any substantial direct costs on tribal
governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Particulate Matter, Reporting and
recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 24, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-13716 Filed 6-5-12; 8:45 am]
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[Federal Register Volume 79, Number 168 (Friday, August 29, 2014)]
[Notices]
[Pages 51621-51623]
[FR Doc No: 2014-20591]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2013-0017]

QAI Laboratories, LTD.: Application for Recognition

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: In this notice, OSHA announces the application of QAI
Laboratories, LTD., for recognition as a Nationally Recognized Testing
Laboratory (NRTL) under 29 CFR 1910.7, and presents the Agency's
preliminary finding to grant this recognition.

DATES: Submit comments, information, and documents in response to this
notice, or requests for an extension of time to make a submission, on
or before September 29, 2014.

ADDRESSES: Submit comments by any of the following methods:
    1. Electronically: Submit comments and attachments electronically
at http:[sol][sol]www.regulations.gov, which is the Federal eRulemaking
Portal. Follow the instructions online for making electronic
submissions.
    2. Facsimile: If submissions, including attachments, are not longer
than 10 pages, commenters may fax them to the OSHA Docket Office at
(202) 693-1648.
    3. Regular or express mail, hand delivery, or messenger (courier)
service: Submit comments, requests, and any attachments to the OSHA
Docket Office, Docket No. OSHA-2013-0017, Technical Data Center, U.S.
Department of Labor, 200 Constitution Avenue NW., Room N-2625,
Washington, DC 20210; telephone:<PHONE_NUMBER> (TTY number: (877) 889-
5627). Note that security procedures may result in significant delays
in receiving comments and other written materials by regular mail.
Contact the OSHA Docket Office for information about security
procedures concerning delivery of materials by express mail, hand
delivery, or messenger service. The hours of operation for the OSHA
Docket Office are 8:15 a.m.-4:45 p.m., e.t.
    4. Instructions: All submissions must include the Agency name and
the OSHA docket number (OSHA-2013-0017). OSHA places comments and other
materials, including any personal information, in the public docket
without revision, and these materials will be available online at
http:[sol][sol]www.regulations.gov. Therefore, the Agency cautions
commenters about submitting statements they do not want made available
to the public, or submitting comments that contain personal information
(either about themselves or others) such as Social Security numbers,
birth dates, and medical data.
    5. Docket: To read or download submissions or other material in the
docket, go to http:[sol][sol]www.regulations.gov or the OSHA Docket
Office at the address above. All documents in the docket are listed in
the http:[sol][sol]www.regulations.gov index; however, some information
(e.g., copyrighted material) is not publicly available to read or
download through the Web site. All submissions, including copyrighted
material, are available for inspection and copying at the OSHA Docket
Office. Contact the OSHA Docket Office for assistance in locating
docket submissions.
    6. Extension of comment period: Submit requests for an extension of
the comment period on or before September 29, 2014 to the Office of
Technical Programs and Coordination Activities, Directorate of
Technical Support and Emergency Management, Occupational Safety and
Health Administration, U.S. Department of Labor, 200 Constitution
Avenue NW., Room N-3655, Washington, DC 20210, or by fax to (202) 693-
1644.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office
of Communications, U.S. Department of Labor, 200 Constitution Avenue
NW., Room N-3647, Washington, DC 20210; telephone:<PHONE_NUMBER>;
email<EMAIL_ADDRESS>    General and technical information: Contact Mr. David W. Johnson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-3655, Washington, DC 20210; phone:
(202) 693-2110 or email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    Many of OSHA's workplace standards require that an NRTL approve
(i.e., test and certify) certain types of equipment as safe for use in
the workplace. NRTLs are independent laboratories that meet OSHA's
requirements for performing safety testing and certification of
products used in the workplace. To obtain and retain OSHA recognition,
NRTLs must meet the requirements in the NRTL Program regulations at 29
CFR 1910.7. More specifically, to be recognized by OSHA, an
organization must: (1) Have the appropriate capability to test,
evaluate, and approve products to assure their safe use in the
workplace; (2) be completely independent of employers subject to the
tested equipment requirements, and manufacturers and vendors of
products for which OSHA requires certification; (3) have internal
programs that ensure proper control of the testing and certification
process; and (4) have effective reporting and complaint handling
procedures. Recognition is an acknowledgement by OSHA that the NRTL has
the capability to perform independent safety testing and certification
of the specific products covered within the NRTL's scope of
recognition, and is not a delegation or grant of government authority.
Recognition of an NRTL by OSHA also allows employers to use products
certified by that NRTL to meet those OSHA standards that require
product testing and certification.
    The Agency processes applications for initial recognition following
requirements in Appendix A of 29 CFR 1910.7. This appendix requires
OSHA to publish two notices in the Federal Register in processing an
application. In

the first notice, OSHA announces the application, provides its
preliminary finding, and solicits comments on its preliminary findings.
In the second notice, the Agency provides its final decision on the
application. These notices set forth the NRTL's scope of recognition.

II. Notice of the Application for Recognition

    OSHA is providing notice that QAI Laboratories, LTD., (QAI) is
applying for recognition as an NRTL. According to public information
(see http:[sol][sol]qai.org/about-us/), QAI states that it was founded
in 1994 by a group of certification and testing experts, and it is an
independent third-party testing, inspection and certification
organization which serves the building industry, government and
individuals with solutions through its in-house capabilities/services,
and a world-wide network of qualified affiliates. In its application,
QAI lists the current address of its headquarters as: QAI Laboratories,
LTD., 16-211 Schoolhouse Street, Coquitlam, British Columbia,
Canada V3K 4X9.
    Each NRTL's scope of recognition has three elements: (1) The type
of products the NRTL may test, with each type specified by its
applicable test standard; (2) the recognized site(s) that have the
technical capability to perform the product-testing and product-
certification activities for the applicable test standards within the
NRTL's scope of recognition; and (3) the supplemental program(s) that
the NRTL may use, each of which allows the NRTL to rely on other
parties to perform activities necessary for testing and certification.
QAI applied for initial recognition as an NRTL on May 28, 2013. In its
application, QAI requested recognition for three test standards, two
sites, and one supplemental program (Exhibit 14-1--QAI Initial
Application for Recognition). The following sections set forth the
requested scope of recognition included in QAI's application.

A. Standards Requested for Recognition

    Table 1 below lists the appropriate test standards found in QAI's
application for testing and certification of products under the NRTL
Program.

  Table 1--Proposed List of Appropriate Test Standards for Inclusion in
                     QAI's NRTL Scope of Recognition
------------------------------------------------------------------------
             Test standard                     Test standard title
------------------------------------------------------------------------
UL 10B.................................  Fire Tests of Door Assemblies.
UL 10C.................................  Positive Pressure Fire Tests of
                                          Door Assemblies.
UL 1598................................  Luminaires.
------------------------------------------------------------------------

    The test standards listed above may be approved as U.S. test
standards by the American National Standards Institute (ANSI). However,
for convenience, the Agency may use the designations of the standards-
developing organization for the test standards instead of the ANSI
designation. Under the NRTL Program's policy (see OSHA Instruction CPL
1-0.3, Appendix C, paragraph XIV), any NRTL recognized for a particular
test standard may use either the proprietary version of the test
standard or the ANSI version of that standard.

B. Sites Requested for Recognition

    The addresses of QAI's sites included in its application for
recognition as an NRTL are:
    1. QAI Coquitlam, 16-211 Schoolhouse Street, Coquitlam,
British Columbia, CANADA V3K 4X9; and
    2. QAI Los Angeles, 8385 White Oak Avenue, Rancho Cucamonga,
California 91730.
    The NRTL Program requires that at least one of the recognized sites
listed above have the capability to conduct the product-testing in
accordance with the appropriate test standard for the equipment or
material being tested and certified.

C. Supplemental Programs

    The supplemental program listed in QAI's application for
recognition as an NRTL includes:
    Program 9: Acceptance of services other than testing or evaluation
performed by subcontractors or agents (for calibration services only).

III. Preliminary Finding on the Application for Recognition as an NRTL

    OSHA's NRTL Program recognition process involves a thorough
analysis of an NRTL applicant's policies and procedures, and a
comprehensive on-site review of the applicant's testing and
certification activities to ensure that the applicant meets the
requirements of 29 CFR 1910.7. OSHA staff performed a detailed analysis
of QAI's application packet and reviewed other pertinent information.
One or more of the sites listed above have the capability to conduct
testing and certification in accordance with requirements outlined in
the test standard specifications for the test standards listed in
Section II.A above. OSHA staff also performed a comprehensive on-site
assessment of QAI's testing facilities on February 25, 2014, at QAI
Coquitlam and February 26, 2014, at QAI Los Angeles. An overview of
OSHA's assessment of the four requirements for recognition (i.e.,
capability, control procedures, independence, and creditable reports
and complaint handling) is provided below.

A. Capability

    Section 1910.7(b)(1) states that, for each specified item of
equipment or material to be listed, labeled, or accepted, the NRTL must
have the capability (including proper testing equipment and facilities,
trained staff, written testing procedures, and calibration and quality-
control programs) to perform appropriate testing. OSHA staff performed
a detailed analysis of QAI's application packet and reviewed other
pertinent information to assess its capabilities to perform test and
certification activities. OSHA determined that QAI has demonstrated
these capabilities through the following:
     The QAI facility has adequate test areas and energy
sources, and procedures for controlling incompatible activities.
     QAI provided a detailed list of its testing equipment.
Review of the application shows that the equipment listed is available
and adequate for the standards for which it seeks recognition.
     QAI has detailed procedures for conducting testing,
review, and evaluation, and for capturing the test and other data
required by the test standards for which it seeks recognition.
     QAI has detailed procedures addressing the maintenance and
calibration of equipment, and the types of records maintained for, or
supporting laboratory activities.
     QAI has sufficient qualified personnel to perform the
proposed scope of testing based on their education, training, technical
knowledge, and experience.
     QAI has an adequate quality-control system in place to
conduct internal audits, and track and resolve non-conformances.
    OSHA's on-site assessment of QAI's facilities confirmed the
capabilities described in its application packet. While the assessors
found some non-conformances with the requirements of 29 CFR 1910.7, QAI
addressed these

issues sufficiently to meet the applicable NRTL requirements.

B. Control Procedures

    Section 1910.7(b)(2) requires that the NRTL provide controls and
services, to the extent necessary, for the particular equipment or
material to be listed, labeled, or accepted. These controls and
services include procedures for identifying the listed or labeled
equipment or materials, inspections of production runs at factories to
assure conformance with test standards, and field inspections to
monitor and assure the proper use of identifying marks or labels. OSHA
staff performed a detailed analysis of QAI's application packet and
reviewed other pertinent information to assess its control procedures.
OSHA determined that QAI has demonstrated these capabilities through
the following:
     QAI has a quality-control manual and detailed procedures
to address the steps involved to list and certify products.
     QAI has a registered certification mark.
     QAI has certification procedures to address the
authorization of certifications and audits of factory facilities. The
audits apply to both the initial evaluations and the follow-up
inspections of manufacturers' facilities.
    OSHA's on-site assessment of QAI's facilities confirmed the control
procedures described in its application packet. While the assessors
found some non-conformances with the requirements of 29 CFR 1910.7, QAI
addressed these issues sufficiently to meet the applicable NRTL
requirements.

C. Independence

    Section 1910.7(b)(3) requires that the NRTL be completely
independent of employers that are subject to the testing requirements,
and of any manufacturers or vendors of equipment or materials tested
under the NRTL Program. OSHA has a policy for the independence of NRTLs
that specifies the criteria used for determining whether an
organization meets the above requirement (see OSHA Instruction CPL 1-
0.3, Appendix C, paragraph V). This policy contains a non-exhaustive
list of relationships that would cause an organization to fail to meet
the specified criteria. OSHA staff performed a detailed analysis of
QAI's application packet and reviewed other pertinent information to
assess its independence. OSHA determined that QAI has demonstrated
independence through the following:
     QAI is a privately owned organization, and OSHA found no
information regarding ownership that would qualify as a conflict under
OSHA's independence policy.
     QAI shows that it has none of the relationships described
above or any other relationship that could subject it to undue
influence when testing for product safety.

D. Credible Reports and Complaint Handling

    Section 1910.7(b)(4) specifies that a NRTL must maintain effective
procedures for producing credible findings and reports that are
objective and free of bias. The NRTL must also have procedures for
handling complaints and disputes under a fair and reasonable system.
OSHA staff performed a detailed analysis of QAI's application packet
and reviewed other pertinent information to assess its ability to
produce credible results and handle complaints. OSHA determined that
QAI has demonstrated these capabilities through the following:
     QAI has detailed procedures describing the content of the
test reports, and other detailed procedures describing the preparation
and approval of these reports.
     QAI has procedures for recording, analyzing, and
processing complaints from users, manufacturers, and other parties in a
fair manner.
    OSHA's on-site assessment of QAI's facilities confirmed the
creditable reports and complaint handling procedures described in its
application packet. While the assessors found some non-conformances
with the requirements of 29 CFR 1910.7, QAI addressed these issues
sufficiently to meet the applicable NRTL requirements.
    OSHA's review of the application file and pertinent documentation,
as well as the results of the on-site assessment, indicate that QAI can
meet the requirements prescribed by 29 CFR 1910.7 for recognition as an
NRTL for both of its sites. The OSHA staff, therefore, preliminarily
recommended that the Assistant Secretary approve the application. This
preliminary finding does not constitute an interim or temporary
approval of QAI's application.
    OSHA welcomes public comment as to whether QAI meets the
requirements of 29 CFR 1910.7 for recognition as an NRTL. Comments
should consist of pertinent written documents and exhibits. Commenters
needing more time to comment must submit a request in writing, stating
the reasons for the request. Commenters must submit the written request
for an extension on or before the comment due date. OSHA will limit any
extension to 10 days unless the requester justifies a longer period.
OSHA may deny a request for an extension if it is not adequately
justified. To obtain or review copies of the publicly available
information in QAI's application, including pertinent documents (e.g.,
exhibits), and all submitted comments, contact the Docket Office, Room
N-2625, Occupational Safety and Health Administration, U.S. Department
of Labor, at the above address; these materials also are available
online at http://www.regulations.gov under Docket No. OSHA-2013-0017.
    OSHA staff will review all comments submitted to the docket in a
timely manner and, after addressing the issues raised by these
comments, will recommend to the Assistant Secretary whether to grant
QAI's application for recognition as an NRTL. The Assistant Secretary
will make the final decision on granting the application. In making
this decision, the Assistant Secretary may undertake other proceedings
prescribed in Appendix A to 29 CFR 1910.7. OSHA will publish a public
notice of this final decision in the Federal Register.

IV. Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue NW.,
Washington, DC 20210, authorized the preparation of this notice.
Accordingly, the Agency is issuing this notice pursuant to 29 U.S.C.
657(g)(2), Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25,
2012), and 29 CFR 1910.7.

    Signed at Washington, DC, on August 25, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-20591 Filed 8-28-14; 8:45 am]
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