Federal Register Vol. 80, No.162,

The U.S. Department of Energy (DOE) published a final rule in the Federal Register on August 5, 2015 (“the August 2015 final rule”), amending the test procedures for clothes washers. 80 FR 46729. In the rule, DOE made a drafting error in the regulatory text within section 3.10, Energy consumption for the purpose of determining the cycle selection(s) to be included in the energy test cycle, of Appendix J2 to subpart B of 10 CFR part 430, Uniform Test Method for Measuring the Energy Consumption of Automatic and Semi-automatic Clothes Washers. Specifically, DOE inadvertently designated two provisions as section 3.10.3 of that appendix. However, the substance of both provisions are correct and are to be retained in the test procedure. The effective date for this rule is September 4, 2015.

In order to remedy this error, DOE is renumbering the relevant provisions on page 46781 of the Federal Register in the August 2015 final rule at 80 FR 46729, as set forth below. The effective date of the August 2015 final rule at 80 FR 46729 remains September 4, 2015.

In FR Doc. 2014-18330 appearing on page 46729 in the issue of Wednesday, August 5, 2015, the following correction is made:

On page 46781, third column, section 3.10.4 is redesignated as 3.10.5, and the two sections 3.10.3 are redesignated as 3.10.3 and 3.10.4, respectively.

I. Background

The U.S. Department of Energy (DOE) published a final rule in the Federal Register on August 11, 2015 (“the August 2015 final rule”) to place in the Code of Federal Regulations (CFR) the energy conservation standards and related definitions that Congress prescribed for grid-enabled water heaters in the Energy Efficiency Improvement Act of 2015 (EEIA 2015), which amended the Energy Policy and Conservation Act of 1975 (EPCA). 80 FR 48004. Since the publication of that final rule, it has come to DOE's attention that, due to a drafting oversight, the August 2015 final rule incorrectly omitted a numeral in the equation to determine the energy factor for grid-enabled water heaters. This final rule corrects this error, adding the missing numeral.

As published, the August 2015 final rule contains a typographical error in the first column of 80 FR 48010, in § 430.32(d)(2), “Grid-enabled water heaters.” The equation in that paragraph, “1.06−(0.00168 × Rated Storage Volume in gallons)” should read “1.061−(0.00168 × Rated Storage Volume in gallons).” This revision accurately reflects the values found in the energy factor equation in the preamble (80 FR 48007), as well as the text in EEIA 2015 and, consequently, EPCA. Thus, the final rule has been corrected to eliminate this error. DOE notes that this equation to measure the energy factor for grid-enabled water heaters has been the law under EPCA through EEIA 2015 since April 30, 2015, and that the August 2015 final rule and this correction simply place that language into DOE's codified regulations.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the August 2015 final rule remain unchanged for this final rule technical correction. These determinations are set forth in the August 2015 final rule. 80 FR 48004, 48009-10 (Aug. 11, 2015).

For the reasons set forth in the preamble, DOE amends part 430 of Chapter II, Subchapter D, of Title 10 of the Code of Federal Regulations as set forth below:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore— (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part § 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—-(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

The Defense Priorities and Allocations System (DPAS) Regulations implement priorities and allocations authority of the Defense Production Act of 1950, as amended. Through the regulations, certain national defense and energy programs may be supported through the prioritization of contracts, or the allocation of resources. The priorities authority applies to the prioritization of contracts to support an approved national defense and/or energy program. Once a program is approved, the Bureau of Industry and Security (BIS) (or another agency to which BIS has delegated authority) may place priority ratings on certain contracts. These ratings effectively expedite contractual performance to support the approved program.

The Department of Defense (DOD) has entered into bilateral security of supply arrangements with certain countries that allow DOD to request priority delivery of DOD contracts, subcontracts or orders from companies in those countries. Persons in the United States who need assistance in obtaining priority delivery for such a contract, subcontract or order in those countries may request DOD to provide assistance in obtaining priority delivery. The DPAS Regulations list the countries with which DOD has entered into such arrangements to provide readers whose need for contract prioritization may extend beyond the United States with information about how to seek such prioritizations. Recently, DOD entered into a bilateral security of supply arrangement with Spain. Accordingly, this rule adds Spain to the list of countries with which DOD has such arrangements. The list is informational only and does not affect any right, duty or prohibition that applies to any person under the DPAS Regulations. DOD would be able to request priority delivery in countries with which it has security of supply arrangements and persons in the United States would be able to request assistance from DOD in obtaining priority delivery even if the list did not appear in the DPAS Regulations.

With the addition of Spain, the list will read: Australia, Finland, Italy, The Netherlands, Spain, Sweden and the United Kingdom.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any regulatory burden on the public and is consistent with the goals of Executive Order 13563. This rule has been determined not to be significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), unless that collection of information displays a currently valid Office of Management and Budget control number. This rule does not involve a collection of information that is subject to the Paperwork Reduction Act.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. BIS finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice of proposed rulemaking and the opportunity for public comment because it is unnecessary. This rule merely updates the list of countries with which the DOD has entered into security of supply arrangements and thus may seek prioritization of contracts in those countries. Persons in the United States who need such prioritization may request DOD assistance to obtain it. The lists are in the DPAS regulations to inform persons whose need for contract prioritization may extend beyond the United States of where they may be able to obtain assistance. DOD may seek such prioritization and persons in the United States may request DOD assistance regardless whether or not the countries with which DOD has entered into security of supply arrangements are identified in the DPAS Regulations. Listing these countries in the DPAS Regulations does not affect any right, duty or prohibition that applies to any person under those regulations. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. Because neither the Administrative Procedure Act nor any other law requires that notice and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

In addition, the 30-day delay in effectiveness otherwise required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule.

For the reasons set forth in the preamble, the Defense Priorities and Allocations System Regulations (15 CFR part 700) are amended as follows:

In a notice published in the Federal Register of October 22, 2014 (79 FR 63062), we announced that we had filed a color additive petition (CAP 4C0300), submitted by Colorcon, Inc. (petitioner), 275 Ruth Rd., Harleysville, PA 19438. The petition proposed to amend the color additive regulations in Title 21, Code of Federal Regulations (CFR) part 73 Listing of Color Additives Exempt From Certification to provide for the safe use of spirulina extract, prepared by the filtered aqueous extraction of the dried biomass of Arthrospira platensis (A. platensis), as a color additive in coating formulations applied to dietary supplement and drug tablets and capsules.

In the Federal Register of August 13, 2013 (78 FR 49117), we issued a final rule in response to a color additive petition (CAP 2C0293) approving the use of a filtered aqueous extract of the dried biomass of A. platensis as a color additive in candy and chewing gum at levels consistent with good manufacturing practice (GMP). We established spirulina extract as the common or usual name for the color additive and listed it in § 73.530 (21 CFR 73.530). In addition to the identity of the color additive, the regulation in § 73.530 includes specifications that must be met for lead, arsenic, mercury, and microcystin toxin.

In the Federal Register of April 11, 2014 (79 FR 20095), we issued a final rule in response to a color additive petition (CAP 2C0297) amending § 73.530 to include the use of spirulina extract as a color additive in confections (including candy and chewing gum), frostings, ice cream and frozen desserts, dessert coatings and toppings, beverage mixes and powders, yogurts, custards, puddings, cottage cheese, gelatin, breadcrumbs, and ready-to-eat cereals (excluding extruded cereals), at levels consistent with GMP.

The spirulina extract used for the purposes of CAP 4C0300 is a blue-colored powder produced by the filtered aqueous extraction of the spray-dried biomass of A. platensis (also known as Spirulina platensis), an edible blue-green cyanobacterium. The color additive contains phycocyanins as the principal coloring component. The maximum phycocyanin content of the color additive is 28 percent. Based on data and information provided in the petition on the identity, physical and chemical properties, manufacturing process, and composition of the color additive, we have determined that the color additive meets the specifications for spirulina extract in § 73.530 (Ref. 1).

Spirulina extract is intended to be used as a color additive in film coating formulations applied to dietary supplement and drug tablets and capsules in amounts consistent with GMP. The maximum GMP use level for spirulina extract in an individual coating will be determined by the desired coloring effect. Therefore, because the amount of the color additive used in these coatings is self-limiting, we have determined that there is no need for a specific upper limit on the percent by weight of spirulina extract in coating formulations applied to dietary supplement and drug tablets and capsules (Ref. 1).

Under section 721(b)(4) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379e(b)(4)), a color additive may not be listed for a particular use unless the data and information available to FDA establish that the color additive is safe for that use. Our color additive regulations at 21 CFR 70.3(i) define “safe” to mean that there is convincing evidence that establishes with reasonable certainty that no harm will result from the intended use of the color additive. To establish with reasonable certainty that a color additive intended for use in food is not harmful under its intended conditions of use, we consider the projected human dietary exposure to the additive, the additive's toxicological data, and other relevant information (such as published literature) available to us. We compare an individual's estimated exposure, or estimated daily intake (EDI), of the additive from all food sources to an acceptable daily intake level established by toxicological data. The EDI is determined by projections based on the amount of the additive proposed for use in particular foods or drugs and on data regarding the amount consumed from all ingested sources of the additive. We commonly use the EDI for the 90th percentile consumer of a color additive as a measure of high chronic exposure.

To support the safety of the petitioned use of spirulina extract as a color additive in coating formulations applied to dietary supplement and drug tablets and capsules, Colorcon submitted an exposure estimate for phycocyanins (the principal coloring component). Colorcon estimated that the petitioned use of spirulina extract in coating formulations applied to dietary supplement and drug tablets and capsules will result in an exposure to phycocyanins of 20.9 milligrams/person/day (mg/p/d) for the 90th percentile consumer (Ref. 2). We agree with Colorcon's exposure estimate for phycocyanins and conclude that it is sufficiently conservative (Ref. 2).1

Regarding cumulative exposure (cumulative EDI, or CEDI) to phycocyanins from spirulina and spirulina-derived substances, FDA discussed in the final rule for use of spirulina extract as a color additive in candy and chewing gum that spirulina and spirulina-derived substances have been the subject of four notices submitted by firms to FDA informing us of their determinations that certain uses of spirulina-derived substances are generally recognized as safe (GRAS) (78 FR 49117 at 49118). One of the GRAS notices (GRN 000424) pertains to the use of a spirulina-derived substance similar in chemical composition to the subject color additive but with a much higher phycocyanin content ranging from 42 to 47 percent, and included use in all foods (except infant formula and foods under U.S. Department of Agriculture's jurisdiction) at levels consistent with GMP. The upper bound CEDI for phycocyanins resulting from the notified uses of spirulina extract was estimated to be 1,140 mg/p/d in GRN 000424 based on conservative assumptions (Ref. 3). This exposure estimate does not appear to include exposure to phycocyanins from use of spirulina extract in dietary supplements. Colorcon estimated that the use of spirulina extract in coating formulations applied to dietary supplement and drug tablets and capsules would increase the previously estimated upper bound CEDI of phycocyanins by 1.8 percent. We agree that Colorcon's estimate is conservative, and that the petitioned use of spirulina extract would not contribute significantly to the previously estimated upper bound CEDI of 1,140 mg/p/d for phycocyanins (Ref. 2).

In support of safety of the use of spirulina extract as a color additive in coating formulations applied to dietary supplement and drug tablets and capsules in the subject petition, Colorcon referenced the safety determinations made by FDA for CAP 2C0293 (78 FR 49117) and CAP 2C0297 (79 FR 20095). The petitioner also conducted a search of the peer-reviewed scientific literature for animal and human oral consumption studies that tested spirulina, spirulina-derived ingredients, and phycocyanins that have been published since 2011. The petitioner submitted the published animal and human studies that they had identified as being relevant to their petition. We reviewed the relevant studies and determined that these publications did not raise any safety concerns.

In our previous evaluations of the use of spirulina extract as a color additive in food, we had selected as the pivotal safety study a 21-month chronic feeding study that tested spirulina powder in rats at dietary concentrations of 10, 20, or 30 percent (equivalent to 5,000, 10,000, or 15,000 milligrams per kilogram bodyweight per day (mg/kg bw/d)). The results of this study showed that prolonged oral consumption of spirulina powder up to a dietary concentration of 15,000 mg/kg bw/d was without adverse effects. Therefore, we concluded that the no-observed-effect level (NOEL) for spirulina is 15,000 mg/kg bw/d (900,000 mg/p/d for a 60 kg person) based on the absence of treatment-related adverse effects at the highest concentration tested in this study. We had also determined the NOEL for phycocyanins for humans to be between 108,000 and 184,500 mg/p/d (78 FR 49117 at 49119). Taking into account all the available safety information, the estimated exposure to phycocyanins from the petitioned use of the spirulina extract, and the margin of safety between the CEDI for phycocyanin (1,140 mg/p/d) and the NOEL for phycocyanin (108,000 to 184,500 mg/p/d), we conclude that the petitioned use of spirulina extract as a color additive in coating formulations applied to dietary supplement and drug tablets and capsules is safe (Ref. 4).

The potential allergenicity of spirulina phycocyanins was discussed in the final rule for the use of spirulina extract as a color additive in candy and chewing gum (78 FR 49117 at 49119). Based on our review of a comparison of the known amino acid sequences of phycocyanins with the sequences of known protein allergens, we had determined that there is a low probability that phycocyanins are protein allergens. We therefore concluded that the spirulina phycocyanins present an insignificant allergy risk to consumers of the color additive. We are not aware of any new information that would cause us to change this conclusion.

Based on the data and information in the petition and other relevant material, we conclude that the petitioned use of spirulina extract in coating formulations applied to dietary supplement and drug tablets and capsules is safe. We further conclude that the additive will achieve its intended technical effect and is suitable for the petitioned use. Consequently, we are amending the color additive regulations in part 73 as set forth in this document. In addition, based upon the factors listed in 21 CFR 71.20(b), we conclude that certification of spirulina extract is not necessary for the protection of the public health.

In accordance with § 71.15 (21 CFR 71.15), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 71.15, we will delete from the documents any materials that are not available for public disclosure.

We previously considered the environmental effects of this rule, as stated in the October 22, 2014, notice of filing for CAP 4C0300. We stated that we had determined, under 21 CFR 25.32(r), that this action “is of a type that does not individually or cumulatively have a significant effect on the human environment” such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Our review of this petition was limited to section 721 of the FD&C Act. This final rule is not a statement regarding compliance with other sections of the FD&C Act. For example, section 301(ll) of the FD&C Act (21 U.S.C. 331(ll) prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the exemptions in section 301(ll)(1) to (4) of the FD&C Act applies. In our review of this petition, we did not consider whether section 301(ll) of the FD&C Act or any of its exemptions apply to food containing this color additive. Accordingly, this final rule should not be construed to be a statement that a food containing this color additive, if introduced or delivered for introduction into interstate commerce, would not violate section 301(ll) of the FD&C Act. Furthermore, this language is included in all color additive final rules that pertain to food and therefore should not be construed to be a statement of the likelihood that section 301(ll) of the FD&C Act applies.

This rule is effective as shown in the DATES section except as to any provisions that may be stayed by the filing of proper objections. If you will be adversely affected by one or more provisions of this regulation, you may file with the Division of Dockets Management (see ADDRESSES) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) of the regulation to which you object, and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

It is only necessary to send one set of documents. Identify documents with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov. We will publish notice of the objections that we have received or lack thereof in the Federal Register.

The following references have been placed on display in the Division of Dockets Management (see ADDRESSES) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and are available electronically at http://www.regulations.gov. (FDA has verified the Web site address in this reference section, but FDA is not responsible for any subsequent changes to the Web site after this document publishes in the Federal Register).

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and re-delegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 73 is amended as follows:

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is proposing to amend the Special Local Regulation on the waters of the Gulf of Mexico in the vicinity of Sarasota, Florida during the Suncoast Super Boat Grand Prix. The event is scheduled to take place the first Friday, Saturday, and Sunday in July from 10 a.m. to 5 p.m. This final rule is necessary to protect the safety of race participants, participant vessels, spectators, and the general public on the navigable waters of the United States during the event.

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233.

The purpose of the proposed rule is to provide for the safety of life on navigable waters of the United States during the Suncoast Super Boat Grand Prix.

There were no comments related to this event during the comment period and there was no request for a public meeting made during the comment period.

This special local regulation will be enforced annually during the first Friday, Saturday, and Sunday of July from 10 a.m. to 5 p.m. The special local regulations will establish the following three areas: (1) A race area, where all persons and vessels, except those persons and vessels participating in the high speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within; (2) a spectator area, where all vessels must be anchored or operate at No Wake Speed; and (3) an enforcement area where designated representatives may control vessel traffic as determined by the prevailing conditions.

Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the race area or enforcement area by contacting the Captain of the Port St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the race area or enforcement area is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The economic impact of this final rule is not significant for the following reasons: (1) The special local regulations will be enforced for only seven hours a day for three days; (2) although persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the race area or enforcement area without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the race area and enforcement area if authorized by the Captain of the Port St. Petersburg or a designated representative; and (4) the Coast Guard would provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners, Broadcast Notice to Mariners and/or on-scene designate representatives.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This final rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

Washington Department of Transportation (WSDOT) has requested that the Hood Canal Floating Drawbridge only open half of the span to facilitate safe and uninterrupted bridge anchor replacements. The Hood Canal Floating Drawbridge crosses Hood Canal, mile 5.0, near Port Gamble, WA. The bridge has two fixed spans (East and West), and one draw span (Main). The East span provides 50 feet of vertical clearance, and the West span provides 35 feet of vertical clearance. The Main span provides zero feet of vertical clearance in the closed-to-navigation position, and unlimited vertical clearance in the open-to-navigation position. Vertical clearances are referenced to mean high-water elevation.

The deviation period allows the draw span of the Hood Canal Floating Drawbridge across Hood Canal, mile 5.0, to open half-way from 6 a.m. on August 27, 2015 until 7 p.m. on September 30, 2015.

During the time of the deviation, the drawbridge will not be able to operate according to the normal operating schedule. The normal operating schedule for the bridge is in accordance with 33 CFR 117.1045, which allows, with at least one hour's notice, on signal, for the draw to open horizontally for 300 feet unless the maximum opening of 600 feet is requested; and need not open for vessel traffic from 3 p.m. to 6:15 p.m. daily from 3 p.m. on May 22 to 6:16 p.m. on September 30. The bridge shall operate in accordance to 33 CFR 117.1045 at all other times. Waterway usage on this part of Hood Canal includes vessels ranging from commercial tug and barge to U.S. Navy vessels, and vessels attending the missions of the U.S. Navy to small pleasure craft.

Vessels able to pass through the East and West spans may do so at anytime. The Main span does not provide passage in the closed-to-navigation position. The bridge will be able to open half the Main span for Navy vessels during emergencies, when requested by the Department of the Navy. The Hood Canal Floating Drawbridge has two immediate alternate spans for vessels to pass (East span and West span). The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Oregon Department of Transportation (ODOT) has requested that the Lewis and Clark River Bridge, mile 1.0, remain in the closed-to-navigation position, and need not open to vessel traffic Monday, Tuesday, Wednesday, Friday and Saturday. The bascule span will be available to open on Thursdays from 7 a.m. to 4 p.m., when given 3 hours advanced notice. The bridge will operate as normal on Sundays. The deviation is necessary to facilitate bridge maintenance activities to include repairing and preserving the bascule drawbridge structural steel. The Lewis and Clark Bridge provides a vertical clearance of 17.3 feet above mean high water when in the closed-to-navigation position. The normal operating schedule of the Oregon State highway bridge can be found in 33 CFR 117.899(c). This deviation period is from 7 a.m. on August 20, 2015 to 5 p.m. on October 30, 2015. The deviation allows the bascule span of the Lewis and Clark River Bridge to remain in the closed-to-navigation position Monday, Tuesday, Wednesday, Friday and Saturday throughout the deviation period. In addition, the span will be in the closed-to-navigation position on Thursdays, but available to open from 7 a.m. to 4 p.m. when given 3 hours advanced notice. The bridge will operate as normal on Sundays in accordance with 33 CFR 117.899(c). Waterway usage on the Lewis and Clark River is primarily small recreational boaters and fishing vessels transiting to and from Astoria Marine Construction Company.

The bascule span of the bridge will have a containment system installed which will reduce the vertical clearance by 5 feet from 17.3 feet above mean high water to 12.3 feet above mean high water. Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for any emergency if a three-hour notice is given from 7 a.m. to 4 p.m. Monday through Saturday; on Sundays the bridge will be able to open in accordance with 33 CFR 117.899(c), and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking TFR Temporary Final Rule A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable.

The legal basis and authorities for this rule are found in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.

The Cleveland National Air Show has been taking place annually since 1964. During the 2015 show, as with shows in the past, there will be various high speed aerial and military tactical demonstrations on and over Burke Lakefront to include various maneuvers by U. S. Air Force Thunderbirds and civilian aircraft and by personnel on the Burke Lakefront Airport grounds. Specifically, this year's aerial and military tactical demonstrations will take place between 2:20 p.m. to 4:30 p.m. on September 3, 2015, 10:00 a.m. to 4:30 p.m. on September 4, 2015, and 8:00 a.m. to 6:00 p.m. on September 5, 2015 through September 7, 2015. A heavy amount of recreational boating traffic is expected for these demonstrations. The Captain of the Port Buffalo has determined that the maneuvers combined with a high concentration of recreational vessels will create significant risks for the boating public.

With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone is necessary to ensure the safety of participants and the boating public during the Cleveland National Air Show. This zone will be enforced from 2:20 p.m. until 4:30 p.m. on September 3, 2015, from 10 a.m. until 4:30 p.m. on September 4, 2015, from 8 a.m. until 6 p.m. on September 5, 2015, from 8 a.m. until 6 p.m. on September 6, 2015, and from 8 a.m. until 6 p.m. on September 7, 2015. This zone will encompass a portion of Lake Erie and Cleveland Harbor; Cleveland, OH starting at position 41°30′20″ N. and 081°42′20″ W. to 41°30′50″ N. and 081°42′49″ W., then to 41°32′09″ N. and 081°39′49″ W., then to 41°31′53″N. and 081°39′24″ W., then return to the point of origin (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Lake Erie and Cleveland Harbor from 2:20 p.m. to 4:30 p.m. on September 3, 2015, 10:00 a.m. to 4:30 p.m. on September 4, 2015, and 8:00 a.m. to 6:00 p.m. on September 5, 2015 through September 7, 2015.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be effective, and thus subject to enforcement, for approximately ten hours each day in an area with low commercial vessel traffic. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the enforcement of the zone, we would issue local Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 165 as follows:

On May 26, 2015, we published a notice of proposed rulemaking (NPRM) entitled Safety Zone; Swim Around Charleston, Charleston, SC in the Federal Register (80 FR 30005). We received no comments on the proposed rule. No public meeting was requested, and none was held.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to ensure the safety of the swimmers, participant vessels, spectators, and the general public during the Swim Around Charleston.

The Coast Guard did not receive any comments to the proposed rule, and no changes were made to the regulatory text.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for a total of six hours; (2) the safety zone will move with the participant vessels so that once the swimmers clear a portion of the waterway, the safety zone will no longer be enforced in that portion of the waterway; (3) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the enforcement period; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port Charleston or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received zero comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Wando River, the Cooper River, Charleston Harbor, or the Ashley River in Charleston, South Carolina from noon until 6 p.m. on September 26, 2015. Due to the limited duration and geographical scope of this rule, it will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist and Categorical Exclusion Determination was completed for 2015. The environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

High standards and high expectations for all students and an accountability system that provides teachers, parents, students, and the public with information about students' academic progress are essential to ensure that students graduate from high school prepared for college and careers in the 21st century. In 2007, the Department amended the Title I regulations to permit States to define modified academic achievement standards for eligible students with disabilities and to assess those students with alternate assessments based on those modified academic achievement standards. The Department promulgated those regulations based on the understanding that (1) there was a small group of students whose disabilities precluded them from achieving grade-level proficiency and whose progress was such that they would not reach grade-level achievement standards in the same time frame as other students, and (2) the regular State assessment would be too difficult for this group of students and the assessment based on alternate academic achievement standards would be too easy for them. 72 FR 17748 (Apr. 9, 2007). In addition, at that time, the Department acknowledged that measuring the academic achievement of students with disabilities, particularly those eligible to be assessed based on modified academic achievement standards, was “an area in which there is much to learn and improve” and indicated that “[a]s data and research on assessments for students with disabilities improve, the Department may decide to issue additional regulations or guidance.” 72 FR 17748, 17763 (Apr. 9, 2007).

Since these regulations went into effect, additional research 1 has demonstrated that students with disabilities who struggle in reading and mathematics can successfully learn grade-level content and make significant academic progress when appropriate instruction, services, and supports are provided. For example, a research study conducted a meta-analysis of 70 independent studies investigating the effects of special education interventions on student achievement. The study found that children with disabilities made significant progress across different content areas and across different educational settings when they received systematic, explicit instruction; learning strategy instruction; and other evidence-based instructional strategies and supports.2

In addition, nearly all States have developed new college- and career-ready standards and new assessments aligned with those standards. These new assessments have been designed to facilitate the valid, reliable, and fair assessment of most students, including students with disabilities who previously took an alternate assessment based on modified academic achievement standards. For these reasons, we believe that the removal of the authority for States to define modified academic achievement standards and to administer assessments based on those standards is necessary to ensure that students with disabilities are held to the same high standards as their nondisabled peers, and that they benefit from high expectations, access to the general education curriculum based on a State's academic content standards, and instruction that will prepare them for success in college and careers.

Public Comment: On August 23, 2013, we published in the Federal Register (78 FR 52467) a notice of proposed rulemaking (NPRM) that would amend the Title I regulations to no longer authorize a State to define modified academic achievement standards and administer alternate assessments based on those modified academic achievement standards for eligible children with disabilities. The NPRM established an October 7, 2013, deadline for the submission of written comments. Although the Federal eRulemaking Portal was in operation during the government shutdown in October 2013, which included the final seven days of the original public comment period, we recognized that interested parties reasonably may have believed that the government shutdown resulted in a suspension of the public comment period. To ensure that all interested parties were provided the opportunity to submit comments, we reopened the public comment period for seven days. The final due date for comments was November 23, 2013.

In response to our invitation in the NPRM, 156 parties submitted comments. We group major issues according to subject. In some cases, comments addressed issues beyond the scope of the proposed regulations. Although we appreciate commenters' concerns for broader issues affecting the education of students with disabilities, because those comments are beyond the scope of this regulatory action, we do not discuss them here. Generally, we do not address technical and other minor revisions.

Analysis of Comments and Changes: An analysis of the comments and changes in the regulations since publication of the NPRM follows.

Comments: Several commenters stated that general assessments that are accessible for all students are in the best interest of students with disabilities and provide better information about the achievement of those students for parents, educators, and the public. Several commenters pointed to developments in the field of assessment that are contributing to general assessments that are accessible for the vast majority of students. The commenters noted that using principles of “universal design for learning” and considering accessibility issues when designing assessments have resulted in more accessible general assessments and have eliminated the need for alternate assessments based on modified academic achievement standards. A few commenters urged the Department to promote the use of universal design for learning in developing assessments, as well as to support the development of accessible assessments and accommodations for students with disabilities.

Discussion: Nearly all States have developed and are administering new high-quality general assessments that are valid and reliable and measure students with disabilities' knowledge and skills against college- and career-ready standards. Including students with disabilities in more accessible general assessments aligned to college- and career-ready standards promotes high expectations for students with disabilities, ensures that they will have access to grade-level content, and supports high-quality instruction designed to enable students with disabilities to be involved in, and make progress in, the general education curriculum—that is, the same curriculum as for nondisabled students.

In response to those commenters who urged the Department to support the adoption of universal design principles for student assessments, we note that the Department has a history of supporting and promoting universal design for learning, assessments that are accessible for all students, and appropriate accommodations for students with disabilities. Most recently, we included “universal design for learning” in defining “high-quality assessments” required under the Race to the Top programs and the ESEA flexibility initiative.3 We have also focused funding on improving the accessibility of assessments through the General Supervision Enhancement Grants (GSEG) and Enhanced Assessment Grants (EAG) programs.

Changes: None.

Comments: Some commenters from States that administered alternate assessments based on modified academic achievement standards discussed how these assessments were helpful in meeting the needs of students with disabilities. One commenter stated that the assessments improved instruction and student achievement while providing students with access to the general curriculum. A representative from a State educational agency (SEA) commented that five years of research and development went into developing their State's alternate assessments, which are based on grade-level content, are aligned with college- and career-ready standards, and do not compromise academic rigor and expectations. The SEA representative stated that the existing regulations provide the most flexibility for States and that, without access to the State's alternate assessments based on modified academic achievement standards, students who would otherwise take the alternate assessments would no longer have the opportunity to demonstrate their knowledge and skills.

Discussion: We recognize that some States expended considerable resources to develop alternate assessments based on modified academic achievement standards. As one commenter suggests, these States' research and development efforts generated valuable information on how best to teach and assess students with disabilities. States may still use this information to prepare and support students to take the new general assessments aligned with college- and career-ready standards that States have developed since the Department issued the regulations in April 2007. Those assessments are more accessible to students with disabilities than those in place at the time States began developing alternate assessments based on modified academic achievement standards. The new general assessments will facilitate the valid, reliable, and fair assessment of most students with disabilities, including those for whom alternate assessments based on modified academic achievement standards were intended. Moreover, we know the key to successful achievement of students with disabilities begins with appropriate instruction, services, and supports. More than six years of research spurred by the opportunity that States had to research, develop, and administer alternate assessments based on modified academic achievement standards have dramatically increased the knowledge base about students who are struggling in school. States that received funding from the Department through the GSEG and EAG programs to develop alternate assessments based on modified academic achievement standards focused on several topics, including the characteristics of students who were participating in such assessments, barriers to these students' learning and performance, and approaches to making assessments more accessible. For example, research in several States found that some students deemed eligible for taking alternate assessments based on modified academic achievement standards may not have had an opportunity to learn grade-level content, and that more effort was needed to support teachers in ensuring students have meaningful opportunities to learn grade-level content. Other research focused on the appropriateness of test items and identified various ways to improve the accessibility of test items, such as adjusting format characteristics or content, or carefully examining the difficulty of the test items and making items more accessible and understandable (e.g., reducing unimportant or extraneous details) while still measuring grade-level content.4 Therefore, we believe that alternate assessments based on modified academic achievement standards are no longer needed and, with high-quality instruction and appropriate accommodations, students with disabilities who took an alternate assessment based on modified academic achievement standards will be able to demonstrate their knowledge and skills by participating in the new general assessments.

Changes: None.

Comments: A parent whose child participated in an alternate assessment based on modified academic achievement standards expressed concern that, without the assessment, the child would not be able to graduate with a high school diploma. Another commenter asked that States be allowed to continue to administer alternate assessments based on modified academic achievement standards for State purposes, such as promotion decisions and graduation requirements. One commenter stated that the assessments allowed students with disabilities to be successful and meet State exit exam requirements.

Discussion: Under the final regulations, a State may no longer define modified academic achievement standards and administer alternate assessments based on modified academic achievement standards to meet ESEA requirements. Accordingly, these regulations do not affect State promotion decisions and graduation requirements because the Federal government does not set promotion or graduation standards for any students, including students with disabilities. Rather, States, and, in some cases, local educational agencies (LEAs), establish requirements for high school graduation and promotion.

However, we note that, regardless of State or local promotion or graduation requirements for a regular high school diploma, in order to ensure a free appropriate public education (FAPE) is made available to students with disabilities under the IDEA, individualized education programs (IEPs), including IEP goals, must be aligned with the State's academic content standards, and contain the content required by the IDEA to enable students with disabilities to be involved in, and make progress in, the general education curriculum based on the State's academic content standards. Therefore, in order to ensure that a State makes FAPE available to all eligible students with disabilities,5 promotion or graduation requirements for such students may not be lowered if doing so means including goals, special education and related services, and supplementary aids and services and other supports in a student's IEP that are not designed to enable the student to be involved in, and make progress in, the general education curriculum based on the State's academic content standards. The general education curriculum is the curriculum that is applicable to all children and is based on the State's academic content standards that apply to all children within the State.

Changes: None.

Comments: Several commenters who expressed support for the proposed regulations noted that they are aligned with the requirements in several current Department programs, such as the requirement that assessments funded under the Race to the Top Assessment (RTTA) program be accessible to all students, including students with disabilities eligible to participate in an alternate assessment based on modified academic achievement standards; the requirement that State recipients of Race to the Top grants phase out alternate assessments based on modified academic achievement standards; and the requirement that SEAs phase out alternate assessments based on modified academic achievement standards as a condition of receiving ESEA flexibility.

One commenter who opposed the proposed regulations expressed an understanding that they are based on the premise that States have adopted Common Core State Standards, joined an RTTA consortium, or received waivers under ESEA flexibility. The commenter stated that aligning the proposed regulations with these initiatives would set policy for all States based on those participating in voluntary Department initiatives and would send a message to States not participating in these initiatives that they are disadvantaged for not doing so. Another commenter expressed concern that the proposed regulations would result in permanent regulatory changes predicated on temporary ESEA flexibility waivers.

Discussion: The purpose of the these regulatory changes is to promote high expectations for students with disabilities by encouraging teaching and learning to high academic achievement standards for the grade in which a student is enrolled, measured by a State's general assessments. These regulations are driven by research and advances in the development of general assessments aligned with college- and career-ready standards that are more accessible to students with disabilities than those in place at the time States began developing alternate assessments based on modified academic achievement standards. The purpose of the regulations is not, as suggested by some commenters, to align them with voluntary Department initiatives. To clarify, State recipients of Race to the Top grants were not required to phase out alternate assessments based on modified academic achievement standards as a condition of the grants. States approved for ESEA flexibility did agree to phase out those assessments by school year 2014-2015; however, these final regulations are not predicated on that agreement. Rather, the ESEA flexibility requirement is consistent with the purpose of the regulations to promote high expectations for students with disabilities by encouraging teaching and learning to high academic achievement standards for the grade in which a student is enrolled measured by a State's general assessments. Therefore, we disagree with the commenters who claimed that the regulations would set policy based on the Department's voluntary initiatives. Likewise, the regulations do not place any State at a disadvantage as a result of its decision not to participate in voluntary Department initiatives.

Changes: None.

Comments: One commenter expressed concern that the assessments being developed by the Partnership for Assessment of Readiness for College and Careers (PARCC), although based on universal design features to make them more accessible, will not eliminate the need for alternate assessments.

Discussion: The assessments being developed by States based on college- and career-ready standards, including those developed by PARCC and the Smarter Balanced Assessment Consortium, do not eliminate the authority or need for States to administer alternate assessments based on alternate academic achievement standards for students with the most significant cognitive disabilities. States may also continue to administer alternate assessments based on grade-level academic achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A). We note that the Department is supporting, through the GSEG program, the development of alternate assessments based on alternate academic achievement standards that will serve as companion assessments to the general assessments that States are developing and implementing.

Changes: None.

Comments: One commenter questioned the Department's authority to amend the Title I regulations in light of the negotiated rulemaking requirements in section 1901(b) of the ESEA, including the requirement that the rulemaking process be conducted in a timely manner to ensure that final regulations are issued by the Secretary not later than one year after the date of enactment of the No Child Left Behind Act of 2001 (NCLB). Similarly, the commenter questioned whether the proposed regulations meet the requirement in section 1908 of the ESEA that the Secretary issue regulations for sections 1111 and 1116 of the ESEA not later than six months after the date of enactment of NCLB.

Discussion: The statutory requirements for negotiated rulemaking in section 1901(b) of the ESEA apply to title I standards and assessment regulations required to be implemented within one year of enactment of NCLB, not to subsequent regulatory amendments such as those included in these regulations. Similarly, with respect to the timeline for issuing regulations implementing title I, the requirements in sections 1901 and 1908 of the ESEA apply only to the issuance of initial regulations following enactment of NCLB, not to subsequent amendments such as these final regulations.

Changes: None.

Comments: We received many comments on the standards to which students with disabilities should be held. Several commenters stated that all students should be held and taught to the same standards and that modified academic achievement standards and alternate assessments based on those standards inappropriately lower expectations for students with disabilities and result in instruction that is less challenging than the instruction provided to their nondisabled peers. Other commenters stated that students with disabilities have the ability to learn grade-level content and can achieve at the same levels as their nondisabled peers when provided with appropriate instruction, services, and supports. One commenter stated that, when students receive instruction based on modified academic achievement standards, a negative cycle begins in which the students never learn what they need to succeed. One commenter stated that a State's standards and assessments should be designed to be appropriate for the vast majority of students with disabilities, with the exception of students with the most significant cognitive disabilities. Other commenters stated that a large number of students with disabilities taking alternate assessments based on modified academic achievement standards creates a separate education system for students with disabilities and focuses on students' limitations, rather than strengths.

On the other hand, some commenters stated that holding students with disabilities to the same standards as nondisabled students is unfair because students who qualify for special education services have a disability that affects their academic functioning. They noted that what may be a high standard for one student may not necessarily be the same for another student, and that students with disabilities should take assessments that reflect realistic expectations for them.

Discussion: The importance of holding all students, including students with disabilities, to high standards cannot be over-emphasized. Low expectations can lead to students with disabilities receiving less challenging instruction that reflects below grade-level achievement standards, and thereby not learning what they need to succeed at the grade in which they are enrolled.

Although the Department agrees that some students may have a disability that affects their academic functioning, we disagree that students with disabilities, except for those with the most significant cognitive disabilities, should be held to different academic achievement standards than their nondisabled peers. Research demonstrates that low-achieving students with disabilities who struggle in reading 6 and low-achieving students with disabilities who struggle in mathematics 7 can successfully learn grade-level content when they have access to high-quality instruction. The inclusion of students with disabilities in the new, more accessible general assessments will promote high expectations for students with disabilities, which research demonstrates is associated with improved educational outcomes.8 Therefore, we disagree with commenters' statements that it is unfair to hold students with disabilities, other than those with the most significant cognitive disabilities, to the same academic achievement standards as their nondisabled peers.

Changes: None.

Comments: Many commenters, mostly teachers and parents, stated that modified academic achievement standards and assessments based on those standards meet the needs of certain students with disabilities for whom the general assessment is too difficult. The commenters stated that the general assessment does not provide meaningful data on these students and that alternate assessments based on modified academic achievement standards allow students to demonstrate their knowledge, show progress, and experience success.

Several commenters expressed concern about providing assessments to students when they know the students will struggle to complete the general assessment because, without more supports, it would be too challenging for the students. The commenters expressed concern that this experience would affect their self-esteem and result in higher drop-out rates for students with disabilities.

Discussion: Since the regulations permitting States to define modified academic achievement standards and develop alternate assessments based on those standards were promulgated in 2007, there has been significant research and progress in developing assessments that are appropriate and accessible for most students, including students with disabilities for whom alternate assessments based on modified academic achievement standards were intended. As discussed in the NPRM, the application of universal design principles, new technologies, and new research on accommodations has led to the development of general assessments that are not only more accessible to students with disabilities, but also improve the validity of their scores. As a number of commenters noted, the developers of the new generation of assessments considered the needs of students with disabilities to ensure that the assessments are designed to allow those students to demonstrate their knowledge.9

The Department shares the goal that students with disabilities experience success. Removing the authority for modified academic achievement standards and an alternate assessment based on those standards furthers this goal because students with disabilities who are assessed based on grade-level academic achievement standards will receive instruction aligned with such an assessment.

Changes: None.

Comments: Some commenters stated that it is unfair for students with disabilities to have modifications in instruction during the school year and then be assessed with a test that is not modified.

Discussion: For purposes of this response, we assume “modifications in instruction” means accommodations authorized under the IDEA. While the IDEA does authorize adaptations in the content, methodology, or delivery of instruction (34 CFR 300.39(b)(3)), it also requires appropriate accommodations during testing (34 CFR 300.160(a) and 300.320(a)(6)(i)). These accommodations, as agreed upon by a child's IEP team, which includes the child's parents along with school officials, may include, among other things, small group testing, frequent breaks, a separate or alternate location, a specified area or seating, and adaptive and specialized equipment or furniture. As permitted under the IDEA and determined appropriate by a student's IEP team, the Department believes that students with disabilities who take a general assessment based on a State's challenging academic achievement standards should be provided with accommodations during the assessment that are similar to the IEP accommodations they receive for instructional purposes and for other academic tests or assessments so that the students can be involved in, and make progress in, the general education curriculum. These regulations will not prevent the provision of needed supports to students with disabilities during general assessments or for other instructional purposes.

Changes: None.

Comments: One commenter expressed support for the proposed regulations, stating that alternate assessments based on modified academic achievement standards do not take into account a student's disability and the content of the instruction he or she is provided, and do not provide meaningful information to school districts or accurately measure the student's progress. However, the commenter maintained that the new general assessments, although more accessible, may be too difficult for students who currently participate in an alternate assessment based on modified academic achievement standards. Instead, the commenter recommended allowing States to base participation in the general assessment on a student's instructional level, rather than chronological age, with a cap of counting no more than two percent of proficient scores for ESEA accountability purposes.

Discussion: The commenter's recommendation to allow States to base participation in the general assessment on a student's instructional level is often referred to as “out-of-level” or “off-grade level” testing and generally refers to the practice of assessing a student enrolled in one grade using a measure that was developed for students in a lower grade. By definition, an out-of-level assessment cannot meet the requirements of a grade-level assessment because it does not measure mastery of grade-level content or academic achievement standards. In addition, out-of-level testing is often associated with lower expectations for students with disabilities, tracking such students into lower-level curricula with limited opportunities to succeed in the general education curriculum.

The Department disagrees with the commenter's statement that the new general assessments may be too difficult for students who currently participate in an alternate assessment based on modified academic achievement standards. We learned through States that received funding from the Department through the GSEG and EAG programs that some students with disabilities who might be candidates for an alternate assessment based on modified academic achievement standards may not have had an opportunity to learn grade-level content, and more effort was needed to support teachers in ensuring students have meaningful opportunities to learn grade-level content. Six of the projects found that students who might be candidates for an alternate assessment based on modified academic achievement standards had difficulty using printed materials in certain formats or demonstrated other specific challenges related to some components of reading. Other projects focused on the appropriateness of test items and identified various ways to improve the accessibility of test items, while still measuring grade-level content.10

Changes: None.

Comments: Some commenters stated that preparing students to be “college ready” should not be a goal for all public school students.

Discussion: We understand that not all students will enter a four-year college upon graduating from high school. However, we strongly believe that public schools should prepare all children to be ready for college or the workforce. According to research from the American Diploma Project, nearly two-thirds of new jobs require some form of postsecondary education.11 Therefore, in order to compete in the 21st century, regardless of whether a student has a disability, some form of postsecondary training or education is increasingly important for the student to become a productive and contributing adult.

Changes: None.

Comments: Many commenters expressed concern that no longer permitting the use of alternate assessments based on modified academic achievement standards and requiring students to take the general State assessments conflict with IDEA requirements. The commenters argued that the IDEA requires a student's education to be individualized in an IEP and not standardized with an assessment designed for the general student population. A few commenters stated that a student's IEP team is responsible for making educational decisions for the student and should decide whether an alternate assessment based on modified academic achievement standards or a new more accessible general assessment is the more appropriate assessment for the student.

Discussion: The commenters are correct that the IDEA assigns the IEP team the responsibility for determining how a student with a disability participates in a State or district-wide assessment, including assessments required under title I of the ESEA (34 CFR 300.320(a)(6) and 300.160(a)). This IEP team responsibility is essential, given the importance of including all children with disabilities in a State's accountability system. These final regulations do not contravene this IEP team responsibility.

The IDEA, Part B regulations at 34 CFR 300.320(a)(6) address what each student's IEP must contain regarding participation in State and district-wide assessments. Each child's IEP must include, among other things: (1) A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and district-wide assessments and (2) if the IEP team determines that a student with a disability must take an alternate assessment, a statement of why the child cannot participate in the regular assessment, and why the particular alternate assessment selected is appropriate for the child.

Under these final regulations, to ensure that students with disabilities are appropriately included in assessments conducted under title I, an IEP team will continue to have the authority and responsibility to determine whether students with disabilities should take the regular assessment with or without appropriate accommodations, an alternate assessment based on grade-level academic achievement standards, if any, or, for students with the most significant cognitive disabilities, an alternate assessment based on alternate academic achievement standards.

Although an IEP team determines how a student with a disability participates in general State and district-wide assessments, States are responsible for adopting general and alternate assessments, consistent with applicable Title I regulations. Accordingly, IEP teams will continue to determine which assessment a student with a disability will take in accordance with 34 CFR 300.320(a)(6), and the final regulations in 34 CFR 300.160(c) and 200.6(a)(2). However, under these final regulations, an IEP team may no longer select an alternate assessment based on modified academic achievement standards to assess students with disabilities under title I of the ESEA.

Changes: None.

Comments: Many commenters opposed the proposed amendments because they oppose standardized tests for students with disabilities. Some commenters stated that standardized tests cannot measure the achievement and progress of a student with a disability, particularly a student who is far behind academically. The commenters offered several alternatives to standardized assessments for students with disabilities including assessments that are specialized and personalized for each student; assessments that are based on each student's daily class work and cognitive level, rather than their age; assessments that use standards for passing that are developed by a student's IEP team; and individualized assessments that measure growth. Other commenters suggested allowing States to use a number of assessments to measure achievement for students with disabilities, rather than a single general assessment. A few commenters recommended using measures other than assessments to document the achievement of students with disabilities such as data on classroom performance collected by teachers and a student's progress toward meeting his or her IEP goals.

Finally, some commenters recommended that States, districts, and schools use measures other than performance on standardized assessments as evidence of success in educating students with disabilities. For example, commenters recommended using the number of students passing workforce certification tests, the number of students employed in a skilled job after high school, or the number of students who effectively use a college's disability assistance center.

Discussion: The assessment and accountability provisions of title I require that all students, including students with disabilities, be included in Statewide standardized assessments. 20 U.S.C. 6311(b)(3)(C)(ix); 34 CFR 200.6. Section 612(a)(16)(A) of the IDEA and 34 CFR 300.160(a) also provide that all children with disabilities must be included in all general State and district-wide assessments, including assessments described under section 1111 of the ESEA, with appropriate accommodations and alternate assessments where necessary and as indicated in their respective IEPs. Parents and teachers have the right and need to know how much progress all students, including students with disabilities, are making each year toward college and career readiness. That means all students, including students with disabilities, need to take annual Statewide assessments. Accordingly, the commenters' proposals of alternative methods to measure the achievement of students with disabilities are inconsistent with title I and IDEA.

Changes: None.

Comments: Some commenters who supported the proposed regulations stated that not holding all students to the same standards has resulted in excusing districts from their responsibility to educate students with disabilities based on the general curriculum. For example, one parent whose child participated in an alternate assessment based on modified academic achievement standards commented that the child received instruction that was not based on the general education curriculum, contrary to the requirements of the IDEA.

Discussion: Current IDEA regulations (34 CFR 300.320(a)(1)(i) and (4)(ii)) require that each child with a disability must receive instruction designed to enable the child to be involved in, and make progress in, the general education curriculum—i.e., the same curriculum as for nondisabled students. The importance of this requirement cannot be overemphasized. As the Department stated in the Analysis of Comments to the 2006 IDEA, Part B regulations, “[w]ith regard to the alignment of the IEP with the State's content standards, § 300.320(a)(1)(i) clarifies that the general education curriculum means the same curriculum as all other children. Therefore, an IEP that focuses on ensuring that a child is involved in the general education curriculum will necessarily be aligned with the State's content standards.” 71 FR 46540, 46662 (Aug. 14, 2006).

Under section 1111(b)(1)(B) of the ESEA, a State must apply its challenging academic content standards to all children in the State, including all children with disabilities. Section § 200.1(a)-(b) of the current title I regulations defines State academic content standards as grade-level standards. The Title I regulations permitting a State to define modified academic achievement standards and to administer alternate assessments based on those standards in assessing the academic progress of students with disabilities were not intended to change the requirement that those standards be based on challenging academic content standards. In fact, § 200.1(f)(2)(iii) of the current title I regulations provides that, if the IEPs of students assessed against modified academic achievement standards include goals for the subjects to be assessed, the IEPs of such students assessed based on modified academic achievement standards must include “goals based on the academic content standards for the grade in which a student is enrolled.” This provision has been removed because the authority to define modified academic achievement standards and administer alternate assessments based on those standards, has been removed. However, IEPs for all students with disabilities must continue to be aligned with a State's academic content standards and include annual goals, special education and related services, and supplementary aids and services and other supports that are designed to enable the student to be involved in, and make progress in, the general education curriculum based on the State's academic content standards.

As explained in the Senate Report accompanying the 2004 reauthorization of the IDEA, “[f]or most students with disabilities, many of their IEP goals would likely conform to State and district wide academic content standards and progress indicators consistent with standards based reform within education and the new requirements of NCLB. IEPs would also include other goals that the IEP Team deemed appropriate for the student, such as life skills, self-advocacy, social skills, and desired post-school activities. Moreover, since parents will receive individual student reports on their child with a disability's achievement on assessments under NCLB, they will have additional information to evaluate how well their children are doing against grade-level standards.” S. Rep. No. 108-185, 105th Cong., 1st Sess. 29 (Nov. 3, 2003). Reading the IDEA and ESEA requirements together, it is incumbent upon States and school districts to ensure that the IEPs of students with disabilities who are being assessed against grade-level academic achievement standards include content and instruction that gives these students the opportunity to gain the knowledge and skills necessary for them to meet those challenging standards. We strongly urge States and school districts to provide IEP Teams with technical assistance on ways to accomplish this, consistent with the purposes of the IDEA and the ESEA. Technical assistance is available from the following resources: National Center on Educational Outcomes http://www.cehd.umn.edu/nceo/default.html and The Center on Standards and Assessments Implementation http://csai-online.org/.

Changes: None.

Comments: A number of commenters stated that eliminating the authority of a State to use alternate assessments based on modified academic achievement standards beginning in the 2014-2015 school year is premature. Some commenters stated that a more appropriate time to discontinue use of alternate assessments based on modified academic achievement standards would be after the 2014-2015 school year when many States would have completed their field tests and implemented new assessments aligned with college- and career-ready standards. One commenter referenced a report that stated that 10 to 15 percent of students with disabilities have disabilities that would preclude them from meeting new college- and career-ready standards. The commenter concluded that these estimates raise questions as to whether the new general assessments will be appropriate for all students with disabilities (with the exception of students with the most significant cognitive disabilities who are eligible to take an alternate assessment based on alternate academic achievement standards). The commenters asserted that a State should retain the authority to administer alternate assessments based on modified academic achievement standards until there is information about how adequately the new general assessments include students with disabilities who currently take an alternate assessment based on modified academic achievement standards.

Another commenter raised concerns about phasing out alternate assessments based on modified academic achievement standards at the same time that States are implementing new general assessments. The commenter stated that, at such a time of change, more flexibility rather than less flexibility should be provided to States. One commenter stated that there are indications that implementation of the new assessments will be delayed and that these delays would negatively affect students with disabilities who currently take an alternate assessment based on modified academic achievement standards.

Discussion: With respect to the commenters who stated that eliminating the authority of a State to use alternate assessments based on modified academic achievement standards beginning in the 2014-2015 school year is premature, we disagree. We continue to believe that eliminating the authority for alternate assessments based on modified academic achievement standards to assess the academic progress of students with disabilities under title I of the ESEA at the same time those students are included in new general assessments is in the best interest of the students. All States that had implemented alternate assessments based on modified academic achievement standards have now adopted college- and career-ready standards. These States are all administering general assessments aligned to college- and career-ready standards in 2014-2015. To the extent those are RTTA assessments, they will not be delayed. Moreover, the RTTA assessments were field tested in 2013-2014 and those field tests included students assessed with an alternate assessment based on modified academic achievement standards. As a result, students with disabilities who previously participated in an alternate assessment based on modified academic achievement standards are making the transition to new general assessments along with their peers and have had the same benefit as their peers of instruction designed to meet new college- and career-ready standards. Therefore, it is appropriate that students with disabilities be assessed in 2014-2015 with the new general assessments that are aligned with their instruction.

Changes: None.

Comments: None.

Discussion: When the proposed regulations were published on August 23, 2013 (78 FR 52467), we anticipated finalizing the regulations prior to the end of the 2013-2014 school year. Therefore, we proposed regulations to allow States that administered alternate assessments based on modified academic achievement standards during the 2013-2014 school year to continue to administer those assessments and to use the results for accountability purposes through the 2013-2014 school year. Given that the final regulations were not published prior to the end of the 2013-2014 school year, several of the proposed regulations are no longer necessary. We are, therefore, removing proposed regulations that refer to the conditions under which a State could continue to use modified academic achievement standards and to administer alternate assessments based on those standards until the end of the 2013-2014 school year.

We also are amending current Title I regulations and making conforming changes to current IDEA regulations to remove provisions related to alternate assessments based on modified academic achievement standards and references to “modified academic achievement standards.” We did not include these changes in the NPRM because these provisions were still necessary during the 2013-2014 transition year provided for in the proposed regulations. Now that the transition year has passed, there is no longer a need to retain references to “modified academic achievement standards” or alternate assessments aligned with those standards, except for the provisions regarding reporting on the number of students with disabilities taking alternate assessments based on modified academic achievement standards in years prior to 2015-2016. In assessing the academic progress of students with disabilities under title I of the ESEA, a State retains its authority to continue to administer alternate assessments based on grade-level academic achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A) and revised 300.160(c)(1). Additionally, a State retains its authority to adopt alternate academic achievement standards, as permitted in 34 CFR 200.1(d), and to measure the achievement of students with the most significant cognitive disabilities against those standards, as permitted in 34 CFR 200.6(a)(2)(ii)(B) and 300.160(c)(2)(iii) (new 300.160(c)(2)(ii)). As described below, we are making changes to §§ 200.1, 200.6, 200.13, and 200.20 in the Title I regulations and § 300.160 in the IDEA regulations.

Changes: Changes to § 200.1: We are removing proposed paragraphs (e)(2) and (e)(4) (both of which refer to conditions under which a State could continue to administer alternate assessments based on modified academic achievement standards until the end of the 2013-2014 school year) and revising proposed paragraph (e)(1) (now paragraph (e)) to state that a State may not define modified academic achievement standards for any students with disabilities. We are removing as no longer necessary current paragraph (e)(2) (proposed redesignated paragraph (e)(3)), which sets out the criteria a State must establish for IEP teams to use to identify students with disabilities who were eligible to be assessed based on modified academic achievement standards. In addition, we are revising current paragraph (f) regarding State guidelines to remove all references to “modified academic achievement standards.” The requirements in current paragraph (f) applicable to alternate academic achievement standards remain unchanged and fully applicable to a State that has adopted such standards.

Changes to § 200.6: We are removing proposed paragraph (a)(3) so that a State may no longer measure the achievement of students with disabilities based on modified academic achievement standards, redesignating current paragraph (a)(4) as new paragraph (a)(3), and revising new paragraph (a)(3)(iv) (current paragraph (a)(4)(iv)) to require a State to report to the Secretary the number and percentage of children with disabilities, if any, participating in alternate assessments based on modified academic achievement standards in school years prior to 2015-2016.

Changes to current § 200.13: We are revising current paragraph (c) to remove references to “modified academic achievement standards,” references to the 2.0 percent cap on proficient and advanced scores of students taking alternate assessments based on modified academic achievement standards, and the Appendix.

The requirements in current paragraph (c) applicable to alternate academic achievement standards remain unchanged and fully applicable to a State that has adopted such standards.

Changes to current § 200.20: We are revising current paragraph (c)(3) to remove the reference to “modified academic achievement standards.” The requirements in current paragraph (c)(3) applicable to alternate academic achievement standards remain unchanged and fully applicable to a State that has adopted such standards. We also are removing current paragraph (g) (which describes a transition provision related to modified academic achievement standards) and redesignating current paragraph (h) as new paragraph (g).

Changes to current § 300.160: We are revising § 300.160 of the IDEA regulations, which addresses participation of students with disabilities in assessments, to make conforming changes with those made in the Title I regulations. We are removing current paragraph (c)(2)(ii), which authorizes alternate assessments based on modified academic achievement standards, as permitted in 34 CFR 200.1(e), in assessing the academic progress of students with disabilities under title I of the ESEA; and redesignating current paragraph (c)(2)(iii) as paragraph (c)(2)(ii). We are adding a new paragraph (c)(2)(iii) to make clear that, except as provided in paragraph (c)(2)(ii), a State's alternate assessments, if any, must measure the achievement of children with disabilities against the State's grade-level academic achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A).

Consistent with 34 CFR 200.1(e), we are adding paragraph (c)(3) to make clear that a State may no longer adopt modified academic achievement standards for any students with disabilities under section 602(3) of the IDEA. We are revising current paragraphs (d) and (e) to remove references to “modified academic achievement standards”. Finally, we are revising current paragraphs (f)(3) and (f)(5) to require a State to report to the Secretary the number and performance results, respectively, of children with disabilities, if any, participating in alternate assessments based on modified academic achievement standards in school years prior to 2015-2016.

The requirements in current paragraphs (c), (d), (e), and (f) applicable to alternate academic achievement standards for students with the most significant cognitive disabilities remain unchanged and fully applicable to a State that has adopted such standards.

Comments: Several commenters offered suggestions regarding the technical assistance needed to help States, teachers, and students transition from alternate assessments based on modified academic achievement standards to new, more accessible general assessments. Some commenters recommended providing technical assistance to help States develop plans to phase out alternate assessments based on modified academic achievement standards, including support for technical issues such as measuring student growth when data on two years of performance on the same assessment are not available. Other commenters stated that technical assistance is needed to ensure that students with disabilities receive appropriate instruction and supports to allow them to successfully participate in the general assessment. Commenters also emphasized the need to provide training and professional development to all educators to ensure that students with disabilities have meaningful access to the general curriculum, and to emphasize the importance of educating IEP teams, including parents, on determining the appropriate assessments for students with disabilities.

Other commenters stated that States that implemented alternate assessments based on modified academic achievement standards learned important lessons, as did States that elected not to administer these alternate assessments and focus on improving student outcomes. The commenters recommended that the Department gather this information and use it to promote best practices for including students with disabilities in assessments required for accountability measures under the ESEA.

Some commenters encouraged the Department to monitor schools and States to ensure that supports are provided to students with disabilities who previously participated in alternate assessments based on modified academic achievement standards.

Discussion: The Department is supporting States in their transition to more accessible general assessment systems. In February 2014, the Department's Office of Elementary and Secondary Education (OESE) and Office of Special Education and Rehabilitative Services (OSERS) sponsored a meeting, “Successfully Transitioning Away from the 2% Assessment,” for State teams to jointly learn from and plan for discontinuing the implementation of alternate assessments based on modified academic achievement standards. Materials from this meeting are posted at www.cehd.umn.edu/nceo/AAMAStransition/default.html. The Department currently funds several technical assistance centers that provide resources on students with disabilities and the instructional supports they need to access the general curriculum and participate in the general assessment (e.g., the Center for Standards and Assessment Implementation; see http://csai-online.org/). Moreover, several technical assistance centers provide resources that specifically address the needs of students who have persistent academic and behavioral needs that require intensive intervention to succeed in school and prepare them to be college and career ready (e.g., the National Center on Intensive Intervention; see http://www.intensiveintervention.org/). In addition, the federally funded Parent Training and Information Centers (http://www.parentcenterhub.org/) focus on ensuring that parents of children with disabilities have the information they need to participate effectively in their child's education, including making decisions about the assessments that are appropriate for their child. OESE and OSERS will continue to work collaboratively with the Department's federally funded technical assistance and dissemination partners to ensure that all students, including students with disabilities, have the supports and instruction they need to meet college- and career-ready standards.

With regard to commenters who recommended the Department compile information learned by States that implemented alternate assessments based on modified academic achievement standards, we note that the work funded by the Department through the GSEG and EAG programs has contributed to the knowledge base about students who are struggling in school. Projects funded by these programs focused on a number of topics, including the characteristics of students who participated in alternate assessments based on modified academic achievement standards, barriers to their learning and performance, and approaches to making assessments more accessible. Several State projects that focused on instructional matters found that more effort was needed to support teachers in ensuring students with disabilities have meaningful opportunities to learn grade-level content. Other projects focused on the appropriateness of test items and identified various ways to improve the accessibility of test items, such as examining the difficulty of test items and making items more accessible and understandable without changing the knowledge or skill that is being measured (e.g., reducing unimportant or extraneous details from test items). The lessons learned from these projects are in “Lessons Learned in Federally Funded Projects that Can Improve the Instruction and Assessment of Low Performing Students with Disabilities,” available at: http://www.cehd.umn.edu/nceo/onlinepubs/lessonslearned.pdf.

With respect to commenters who urged the Department to monitor to ensure that supports are provided to students with disabilities who previously participated in alternate assessments based on modified academic achievement standards, pursuant to 34 CFR 300.149(b) and 300.600, an SEA must monitor public agencies' implementation of the Act and Part B regulations and ensure timely correction of any identified noncompliance. We expect, therefore, that SEAs will monitor compliance with the provisions in 34 CFR 300.160.

Changes: None.

Comments: A few commenters advised the Department to monitor data on the percentage of students participating in alternate assessments based on alternate academic achievement standards following the phase out of alternate assessments based on modified academic achievement standards. One commenter stated that the Department should publish the assessment data from the 2012-2013 school year as part of the final regulations, including the number and percentage of students with disabilities who took the general assessment and the number and percentage of students who took an alternate assessment based on modified academic achievement standards, and the proficiency rates for each group.

Discussion: Pursuant to the authority of section 618(a)(3) of the IDEA, the Secretary requires States to report the number of students with disabilities who took (1) the general assessment, with and without accommodations; (2) the alternate assessment based on modified academic achievement standards; (3) the alternate assessment based on grade-level academic achievement standards; and (4) the alternate assessment based on alternate academic achievement standards. These data will help SEAs monitor whether the number of students who take an alternate assessment based on alternate academic achievement standards increases significantly with the elimination of alternate assessments based on modified academic achievement standards.

Under title I and IDEA, States also are required to report the number of students with disabilities who scored at each academic achievement (performance) level (e.g., basic, proficient, above proficient). These numbers can be aggregated to derive the number of students with disabilities who scored at or above proficient on each assessment. However, States are not required to report the percentages of students with disabilities who scored at or above proficient on each assessment. The most recent year for which data are available is 2011-2012. For additional information on these data and links to the data files see: https://inventory.data.gov/dataset/95ca1187-69f5-4e70-9f8c-6bbbb3d6d94a/resource/446d130d-5160-4c27-a428-317c6333b38f. In addition, the Department routinely publishes on its Web site States' Consolidated State Performance Reports (CSPR), which include data on the number and percentage of students with disabilities who participate in the general assessment and each type of alternate assessment (i.e., an alternate assessment based on alternate academic achievement standards, an alternate assessment based on modified academic achievement standards, and an alternate assessment based on grade-level academic achievement standards). The percentage of students with disabilities who score at or above proficient is also reported, but is not disaggregated by type of assessment (general versus alternate assessment). These data are posted at: www2.ed.gov/admins/lead/account/consolidated/index.html. Therefore, we decline to include the assessment data from the 2012-2013 school year in the final regulations, as requested by one commenter.

Changes: None.

Comments: Several commenters wrote about the need for alternate assessments for students with the most significant cognitive disabilities. One commenter asked how the proposed regulations would affect students with the most significant cognitive disabilities who take alternate assessments based on alternate academic achievement standards.

Discussion: The proposed regulations do not affect the assessment of students with the most significant cognitive disabilities. A State continues to have the authority under 34 CFR 200.1(d) and 200.6(a)(2)(ii)(B) to define alternate academic achievement standards, administer alternate assessments based on those alternate academic achievement standards, and, subject to the one percent limitation on the number of proficient scores that may be counted for accountability purposes, include the results in accountability determinations.

Changes: None.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, or tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined are necessary for administering the Department's programs and activities.

Potential Costs and Benefits: Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action and have determined that these regulations would not impose additional costs to States and LEAs or to the Federal government. For example, forty-two States, the District of Columbia, and Puerto Rico agreed, in order to receive ESEA flexibility, to phase out their use of alternate assessments based on modified academic achievement standards, if they had those assessments, by the 2014-2015 school year. Only two States have an alternate assessment based on modified academic achievement standards but have not received ESEA flexibility. Moreover, these regulations do not impose additional costs or administrative burdens because States, including the two discussed in the preceding sentence, are already developing and implementing general assessments aligned with college- and career-ready standards that will be more accessible to students with disabilities than those in place at the time States began developing alternate assessments based on modified academic achievement standards. These new assessments must be valid, reliable, and fair for all student subgroups, including students with disabilities, with the exception of students with the most significant cognitive disabilities who are eligible to participate in alternate assessments based on alternate academic achievement standards consistent with 34 CFR 200.6(a)(2)(ii)(B) (see 75 FR 18171, 18173 (Apr. 9, 2010)).

In this context, these regulations largely reflect already planned and funded changes in assessment practices and do not impose additional costs on States or LEAs or the Federal government. On the contrary, to the extent that these regulations reinforce the transition to State assessment systems with fewer components, the Department believes these regulations ultimately will reduce the costs of complying with ESEA assessment requirements, because States would no longer develop and implement separate alternate assessments based on modified academic achievement standards based on the new college- and career-ready standards.

Further, to the extent that States must transition students with disabilities who took an alternate assessment based on modified academic achievement standards to new general assessments, funding to support such a transition is available through existing ESEA programs, such as the Grants for State Assessments program, which made available $378 million in State formula grant assistance in fiscal year 2015.

In sum, any additional costs imposed on States by these final regulations are estimated to be negligible, primarily because they reflect changes already under way in State assessment systems under the ESEA. Moreover, we believe any costs will be significantly outweighed by the potential educational benefits of increasing the access of students with disabilities to the general assessments as States develop new, more accessible assessments, including assessments aligned with college- and career-ready standards.

An alternative to these final regulations would be for the Secretary to leave in place the existing regulations permitting a State to define modified academic achievement standards and to develop and administer alternate assessments based on those standards. However, the Secretary believes that these amended regulations are needed to help refocus assessment efforts and resources on the development of new general assessments that are accessible to a broader range of students with disabilities. Such new general assessments will eliminate the usefulness of separate alternate assessments based on modified academic achievement standards for eligible students with disabilities.

These regulations do not contain any information collection requirements.

Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to either of the program contact persons listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

For the reasons discussed in the preamble, the Secretary amends parts 200 and 300 of title 34 of the Code of Federal Regulations as follows:

I. Background

On July 16, 2015, the District of Columbia (the District), through the District Department of the Environment (DDOE), submitted a formal revision to its SIP. The SIP revision addresses the infrastructure requirements for interstate transport of pollution under section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2006 24-hour PM2.5 NAAQS.

Whenever new or revised NAAQS are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including, but not limited to, regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure attainment and maintenance of the standards. These elements are referred to as infrastructure requirements.

On September 21, 2006, EPA promulgated a new 24-hour PM2.5 standard of 35 micrograms per cubic meter (μg/m3), based on a 3-year average of the 98th percentile of 24-hour concentrations. See 71 FR 61144 (October 17, 2006). The 2006 24-hour PM2.5 NAAQS became effective on December 18, 2006. See 40 CFR 50.13.

This rulemaking action pertains to the District's July 16, 2015 infrastructure SIP revision addressing the interstate transport pollution requirements under section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2006 24-hour PM2.5 NAAQS. EPA has taken previous rulemaking actions on the District's SIP revision addressing infrastructure elements in section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) with respect to the 2006 24-hour PM2.5 NAAQS. See 76 FR 20237 (April 12, 2011) (final approval of the District's September 21, 2009 SIP revision addressing several section 110(a)(2) requirements for the 2006 24-hour PM2.5 NAAQS) and 77 FR 5191 (February 2, 2012) (final approval of the District's SIP revision addressing section 110(a)(2)(i)(II) for visibility protection).

Pursuant to section 110(a)(1), states must make infrastructure SIP submissions “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).” Infrastructure SIP submissions should provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Infrastructure Guidance).1 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions. The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2).2 EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

Additionally, EPA has provided in previous rulemaking actions a detailed discussion of the Agency's approach in reviewing infrastructure SIPs, including the Agency's longstanding interpretation of requirements for section 110(a)(1) and (2), the interpretation that the CAA allows states to make multiple SIP submissions separately addressing infrastructure SIP elements in section 110(a)(2) for a specific NAAQS, and the interpretation that EPA has the ability to act on separate elements of 110(a)(2) for a NAAQS in separate rulemaking actions. For example, see EPA's proposed rulemaking action approving portions of the District's infrastructure SIP submissions for the 2008 ozone NAAQS and the 2010 nitrogen dioxide (NO2) and sulfur dioxide (SO2) NAAQS. See 80 FR 2865 (January 21, 2015).

In particular, section 110(a)(2)(D)(i)(I) requires state SIPs to address any emissions activity in one state that contributes significantly to nonattainment, or interferes with maintenance, of the NAAQS in any downwind state. EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or conjointly, the interstate pollution transport requirements. EPA also commonly refers to these provisions conjointly as the “good neighbor” provision of the CAA. Specifically, section 110(a)(2)(D)(i)(I) of the CAA requires the elimination of upwind state emissions that significantly contribute to nonattainment or interference with maintenance of the NAAQS in another state.

A combination of local emissions and emissions from upwind sources impacts air quality in any given location. Emissions of SO2 and nitrogen oxides (NOX) can react in the atmosphere to form PM2.5 pollution. Similarly, NOX emissions can react in the atmosphere to create ground-level ozone pollution. These pollutants can travel great distances affecting air quality and public health locally and regionally. The transport of these pollutants across state borders makes it difficult for downwind states to meet health-based air quality standards for PM2.5 and ozone. EPA has taken actions to facilitate implementing the “good neighbor” provision, including the promulgation and administration of various rules, such as the NOX Budget Trading Program, the Clean Air Interstate Rule (CAIR), and most recently, the Cross-State Air Pollution Rule (CSAPR).

On August 8, 2011, EPA promulgated CSAPR to address SO2 and NOX emissions from electric generating units (EGUs) in several states in the Eastern United States that significantly contribute to nonattainment or interfere with maintenance in one or more downwind states with respect to one or more of the 1997 annual PM2.5 and ozone NAAQS and 2006 24-hour PM2.5 NAAQS. See 76 FR 48208 (August 8, 2011).3

In CSAPR, EPA defined what portion of an upwind state's emissions “significantly contributed” to ozone or PM2.5 nonattainment or interference with maintenance areas in downwind states with respect to the 1997 annual PM2.5 and ozone NAAQS and 2006 24-hour PM2.5 NAAQS. CSAPR requires states to eliminate their “significant contribution” emissions by setting a pollution limit (or budget). EPA used a state-specific methodology to identify necessary emission reductions required by CAA section 110(a)(2)(D)(i)(I) and used a detailed air quality analysis to determine whether a state's contribution to downwind air quality problems was at or above specific thresholds. EPA defined “significant contribution” using a multi-factor analysis that took into account both air quality and cost considerations.

In promulgating CSAPR, EPA concluded that the District's SIP satisfied the requirements of section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS and concluded no emission sources in the District were subject to CSAPR. As discussed in the preamble of the CSAPR rulemaking, EPA had combined emission contributions projected in the air quality modeling from the State of Maryland and the District to determine whether those jurisdictions collectively contribute to any downwind nonattainment or maintenance receptor in amounts equal to or greater than the one percent thresholds which EPA used to identify “significant contribution” for CAA section 110(a)(2)(D)(i) for the ozone and PM2.5 NAAQS. EPA's modeling confirmed that the combined contributions exceeded the air quality threshold at downwind receptors for the 1997 ozone and 1997 and 2006 PM2.5 NAAQS. However, the District was not included in CSAPR because in the second step of EPA's significant contribution analysis, EPA concluded that there are no emission reductions available from EGUs in the District of Columbia at the cost thresholds deemed sufficient to eliminate significant contribution to nonattainment and interference with maintenance of the NAAQS considered at the linked receptors. See 76 FR 48208.

In 2011, EPA found only one facility, Benning Road Generating Station, with units meeting CSAPR applicability requirements in the District, and EPA's projections did not show any generation from this facility to be economic under any scenario analyzed and the facility had also announced plans to retire its units in early 2012. Subsequently, Benning Road permanently retired as an air pollution source in 2012. Because EPA projected Benning Road to have zero emissions in 2012, EPA also projected zero emissions of SO2 and NOX in the District for EGUs that would meet the CSAPR applicability requirements. Therefore, EPA did not identify any emission reductions available at any of the cost thresholds considered in CSAPR's multi-factor analysis to identify significant contribution to nonattainment and interference with maintenance. For that reason, EPA concluded that no additional limits or reductions were necessary, at that time, in the District to satisfy the requirements of section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS. Id. 4

The July 16, 2015 SIP revision consists of a letter from the DDOE affirming that the District has already satisfied the transport requirements under section 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour PM2.5 NAAQS. As explained in this letter, the District's determination is based on two aspects: (1) EPA's conclusion in the preamble for CSAPR that the District had no emission reductions at cost thresholds determined by EPA as necessary to address the District's transport requirements for the 1997 and 2006 PM2.5 and 1997 ozone NAAQS; and (2) the District's declaration provided in the SIP submittal that it currently has no EGUs within the District and the District's prior EGU, the Benning Road Generating Station, permanently shut down in 2012.

As discussed in the preamble of the final CSAPR rulemaking and explained in the District's July 16, 2015 SIP submittal, EPA had concluded that there are no emission reductions available from EGUs in the District at the cost thresholds deemed sufficient to eliminate significant contribution to nonattainment and interference with maintenance of the NAAQS considered at the linked receptors. Therefore, EPA had concluded that the District satisfied the requirements of section 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour PM2.5 NAAQS. See 78 FR at 48262.

The District's July 16, 2015 SIP submission also certifies that the District currently has no EGUs that could significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM2.5 NAAQS. The District confirms that Benning Road Generating Station, an EGU which was operational at the time of the promulgation of CSAPR in 2011, permanently retired as expected in 2012. The District's negative declaration further supports EPA's determination in the CSAPR preamble that the District's SIP needs no further measures or revisions to satisfy section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.

EPA is approving the District's SIP revision submitted on July 16, 2015 addressing the requirements for the District under section 110(a)(2)(D)(i)(I) regarding interstate transport pollution for the 2006 24-hour PM2.5 NAAQS. EPA concurs with the District's determination that it has no EGUs and no emissions reductions are needed for the SIP to address significant contribution to nonattainment or interference with maintenance for section 110(a)(2)(D)(i)(I) of the CAA for the 2006 24-hour PM2.5 NAAQS. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 20, 2015 without further notice unless EPA receives adverse comment by September 21, 2015. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 20, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This rulemaking action, addressing the interstate pollution transport requirements for the District of Columbia with respect to the 2006 24-hour PM2.5 NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:

EPA is taking direct final action to approve revisions to the SIP submitted by the State of Kansas in a letter dated March 30, 2015, that modifies the allocations of annual NOX allowances established by EPA under the CSAPR FIPs for existing EGUs for the 2016 control periods.1 The CSAPR allows a subject state, instead of EPA, to allocate allowances under the SO2 annual, NOX annual, and NOX ozone season trading programs to existing EGUs in the State for the 2016 control periods provided that the state meets certain regulatory requirements.2 EPA issued the CSAPR on August 8, 2011, to address CAA section 110(a)(2)(D)(i)(I) requirements concerning the interstate transport of air pollution and to replace the Clean Air Interstate Rule 3 (CAIR), which the United States Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded to EPA for replacement.4 EPA found that emissions of SO2 and NOX in 28 eastern, midwestern, and southern states 5 contribute significantly to nonattainment or interfere with maintenance in one or more downwind states with respect to one or more of three air quality standards—the annual PM2.5 NAAQS promulgated in 1997 6 (15 micrograms per cubic meter (µg/m3)), the 24-hour PM2.5 NAAQS promulgated in 2006 7 (35 µg/m3), and the 8-hour ozone NAAQS promulgated in 1997 8 (0.08 parts per million). The CSAPR identified emission reduction responsibilities of upwind states, and also promulgated enforceable FIPs to achieve the required emission reductions in each of these states through cost effective and flexible requirements for power plants.

Kansas is subject to the FIPs that implement the CSAPR and require certain EGUs to participate in the EPA-administered Federal SO2 annual and NOX annual cap-and trade programs.9 Kansas' March 30, 2015, SIP revision allocates allowances under the CSAPR to existing EGUs in the State for the 2016 control periods only. Kansas' SIP revision includes state-determined allocations for the CSAPR NOX annual trading program, and complies with the 2016 NOX allowance allocation SIP requirements set forth at 40 CFR 52.38. Pursuant to these regulations, a state may replace EPA's CSAPR NOX allowance allocations for existing EGUs for the 2016 control periods provided that the state submits a timely SIP revision containing those allocations to EPA that meets the requirements in 40 CFR 52.38.

Through this action, EPA is approving Kansas' March 30, 2015, SIP revision, incorporating the allocations into the SIP, and amending the CSAPR FIP's regulatory text for Kansas at 40 CFR 52.882 to reflect this approval and inclusion of the state-determined allowance allocation for the 2016 control periods. EPA's allocations of CSAPR trading program allowances for Kansas for control periods in 2017 and beyond remain in place until the State submits and EPA approves state-determined allocations for those control periods through another SIP revision. EPA is not making any other changes to the CSAPR FIPs for Kansas in this action. The CSAPR FIPs for Kansas remain in place until such time the State decides to replace the FIPs with a SIP revision. EPA is taking direct final action to approve Kansas' March 30, 2015, SIP submission because it complies with the CAA and the CSAPR regulations. Below is a summary of the provisions allowing a state to submit SIP revisions to EPA to modify the 2016 allowance allocations. For more detailed information on the CSAPR, refer to the August 8, 2011, preamble and other subsequent related rulemakings referenced throughout this rulemaking.

The CSAPR allows states to determine allowance allocations for 2016 control periods through submittal of a complete SIP revision that is narrower in scope than an abbreviated or full SIP submission that states may use to replace the FIPs and/or to determine allocations for control periods in 2017 and beyond. Pursuant to the CSAPR, a state may adopt and include in a SIP revision for the 2016 control period a list of units and the amount of allowances allocated to each unit on the list, provided the list of units and the allocations meet specific requirements set forth in 40 CFR 52.38(a)(3) and (b)(3) for NOX and 52.39(d) and (g) for SO2. If these requirements are met, the Administrator will approve the SIP allowance allocation provisions as replacing the comparable provisions in 40 CFR part 97 for the State. SIP revisions under this expedited process may only allocate the amount of each state budget minus the new unit set-aside and the Indian country new unit set-aside. For states subject to multiple trading programs, options are available to submit 2016 state-determined allocations for one or more of the applicable trading programs while leaving unchanged the EPA-determined allocations for 2016 in the remaining applicable trading programs.10

In developing this procedure, EPA set deadlines for submitting the SIP revisions for 2016 allocations and for recordation of the allocations that balanced the need to record allowances sufficiently ahead of the control periods with the desire to allow state flexibility for 2016 control periods. These deadlines allow sufficient time for EPA to review and approve these SIP revisions, taking into account that EPA approval must be final and effective before the 2016 allocations can be recorded and the allowances are available for trading. The CSAPR, as revised, set a deadline of October 17, 2011, or March 6, 2015, (in the case of allocations of ozone season allowances for states covered by the Supplemental Rule) for states to notify EPA of their intent to submit these SIP revisions.11 See 40 CFR 52.38 and 52.39.

Twelve states, including Kansas, notified EPA by the applicable deadlines of their intentions to submit SIP revisions affecting 2016 allocations.12 Pursuant to EPA's December 3, 2014, Interim Final Rule,13 the deadlines to submit these SIPs were delayed by three years, making the deadline for these twelve states to submit a 2016 allocation SIP revision April 1, 2015, or October 1, 2015 (in the case of allocations of ozone season NOX allowances for states covered by the Supplemental Rule). Each state may submit a SIP to allocate allowances for the 2016 control periods provided it meets the following requirements pursuant to 40 CFR 52.38 and 52.39:

• Notify the EPA Administrator by October 17, 2011 or March 6, 2015, (in the case of allocations of ozone season NOX allowances for states covered by the Supplemental Rule) of intent to submit state allocations for the 2016 control periods in a format specified by the Administrator. See 40 CFR 52.38(a)(3)(v)(A), 52.38(b)(3)(v)(A), 52.39(d)(5)(i), and 52.39(g)(5)(i).

• Submit to EPA the SIP revision modifying allowance allocations for the 2016 control periods no later than April 1, 2015, or October 1, 2015 (in the case of allocations of ozone season NOX allowances for states covered by the Supplemental Rule). See 40 CFR 52.38(a)(3)(v)(B), 52.38(b)(3)(v)(B), 52.39(d)(5)(ii), and 52.39(g)(5)(ii).

• Provide 2016 state-determined allocations only for units within the State that commenced commercial operation before January 1, 2010. See 40 CFR 52.38(a)(3)(i), 52.38(b)(3)(i), 52.39(d)(1), and 52.39(g)(1).

• Ensure that the sum of the state-determined allocations is equal to or less than the amount of the total state budget for 2016 minus the sum of the new unit set-aside and the Indian country new unit set-aside. See 40 CFR 52.38(a)(3)(ii), 52.38(b)(3)(ii), 52.39(d)(2), and 52.39(g)(2).

• Submit the list of units and the 2016 state-determined allowance allocations as a SIP revision electronically to EPA in the format specified by the Administrator. See 40 CFR 52.38(a)(3)(iii), 52.38(b)(3)(iii), 52.39(d)(3), and 52.39(g)(3).

• Confirm that the SIP revision does not provide for any changes to the listed units or allocations after approval of the SIP revision by EPA and does not provide for any change to any allocation determined and recorded by the Administrator under subpart AAAAA, BBBBB, CCCCC, or DDDDD of 40 CFR part 97. See 40 CFR 52.38(a)(3)(iv), 52.38(b)(3)(iv), 52.39(d)(4), and 52.39(g)(4).

Additionally, these limited SIP revisions for the 2016 state-determined allocations are required to comply with SIP completeness elements set forth in 40 CFR part 51, appendix V (i.e., conduct adequate public notice of the submission, provide evidence of legal authority to adopt SIP revisions, and ensure that the SIP is submitted to EPA by the State's Governor or his/her designee). If a state submits to EPA a 2016 CSAPR SIP revision meeting all the above-described requirements, including compliance with the applicable notification and submission deadlines, and EPA approves the SIP submission by October 1, 2015 (or April 1, 2016, in the case of allocations of ozone season NOX allowances for states covered by the Supplemental Rule), EPA will record state-determined allocations for 2016 by October 1, 2015, (or April 1, 2016) into the Allowance Management System (AMS). Kansas' March 30, 2015 SIP submission addresses the aforementioned requirements allowing a state to allocate 2016 CSAPR allowances for the annual NOX trading program. EPA's analysis of Kansas's SIP submission is explained below.

On March 30, 2015, Kansas submitted a SIP revision intended to replace the CSAPR FIP allocations of the CSAPR NOX annual allowances for the 2016 control periods. For approval, this SIP revision must meet the applicable requirements found in 40 CFR 52.38(a)(3) described in section II of this document. The following is a list of criteria under 40 CFR 52.38(a)(3) and (b)(3) and 52.39(d) and (g), described above in this document, and the results of EPA's analysis of Kansas' SIP revision:

A. Notification from a State to EPA must be received by October 17, 2011, or March 6, 2015, in the case of ozone season NOX SIP revisions for states covered by the December 27, 2011 Supplemental Rule (76 FR 80760), of its intent to submit a complete SIP revision for 2016 existing unit allocations (40 CFR 52.38(a)(3)(v)(A), 52.38(b)(3)(v)(A), 52.39(d)(5)(i), and 52.39(g)(5)(i)).

On October 14, 2011, Kansas notified EPA via a letter of the State's intent to submit complete SIP revisions for allocating TR NOX Annual allowances 14 to existing units (i.e., units that commenced commercial operation before January 1, 2010) for the second implementation year of the CSAPR trading programs.15

B. A complete SIP revision must be submitted to EPA no later than April 1, 2015, or October 1, 2015, in the case of ozone season NOX SIP revisions for states covered by the December 27, 2011 Supplemental Rule (76 FR 80760) (40 CFR 52.38(a)(3)(v)(B), 52.38(b)(3)(v)(B), 52.39(d)(5)(ii), and 52.39(g)(5)(ii)).

EPA has reviewed the March 30, 2015 submittal from Kansas and found it to be complete. This submittal satisfies the applicable elements of SIP completeness set forth in appendix V to 40 CFR part 51.

C. The SIP revision should include a list of TR NOX Annual, TR NOX Ozone Season, TR SO2 Group 1 or Group 2 units, whichever is applicable, that are in the State and commenced commercial operation before January 1, 2010 (40 CFR 52.38(a)(3)(i), 52.38(b)(3)(i), 52.39(d)(1), and 52.39(g)(1)).

As part of Kansas' SIP revision, the State submitted a list of units to be allocated TR NOX Annual allowances for the 2016 control period. The list identifies the same units as were identified in the notice of data availability (NODA) published by EPA on December 3, 2014 (79 FR 71674). Hence, EPA has determined that each unit on the list submitted by Kansas as part of the SIP revision is located in the State of Kansas and had commenced commercial operation before January 1, 2010.

D. The total amount of TR NOX Annual, TR NOX Ozone Season, or TR SO2 Group 1 or Group 2 allowance allocations, whichever is applicable, must not exceed the amount, under 40 CFR 97.410(a), 97.510(a), 97.610(a), or 97.710(a), whichever is applicable, for the State and the control periods in 2016, of the TR NOX Annual, TR NOX Ozone Season, TR SO2 Group 1 or Group 2 trading budget minus the sum of the new unit set-aside and Indian country new unit set-aside (40 CFR 52.38(a)(3)(ii), 52.38(b)(3)(ii), 52.39(d)(2), and 52.39(g)(2)).

As amended, the CSAPR established the NOX Annual budget, new unit set-aside, and Indian country new unit set-aside for Kansas for the 2016 control period as 31,354 tons, 596 tons, and 31 tons, respectively. Kansas' SIP revision, for approval in this action, does not affect this budget, which is a total amount of allowances available for allocation for the 2016 control period under the EPA-administered cap-and-trade program under the CSAPR FIPs. In short, the abbreviated SIP revision only affects allocations of allowances under the established state budget.

The Kansas SIP revision allocating TR NOX Annual allowances for the 2016 control period does not establish allocations exceeding the amount of the budget under § 97.410(a) minus the sum of the new unit set-aside and the Indian County new unit set aside (31,354 tons−(596 tons + 31 tons) = 30,727 tons). The Kansas SIP revision allocates 30,727 TR NOX Annual allowances to existing units in the State.

E. The list should be submitted electronically in the format specified by the EPA (40 CFR 52.38(a)(3)(iii), 52.38(b)(3)(iii), 52.39(d)(3), and 52.39(g)(3)).

On March 30, 2015, EPA received an email submittal from Kansas in the EPA-approved format.

F. The SIP revision should not provide for any changes to the listed units or allocations after approval of the SIP revision and should not provide for any change to any allocation determined and recorded by the Administrator under subpart AAAAA, BBBBB, CCCCC, or DDDDD of 40 CFR part 97 (40 CFR 52.38(a)(3)(iv), 52.38(b)(3)(iv), 52.39(d)(4), and 52.39(g)(4)).

The Kansas SIP revision does not provide for any changes to the listed units or allocations after approval of the SIP revision and does not provide for any change to any allocation determined and recorded by the Administrator under subpart AAAAA, BBBBB, CCCCC, or DDDDD of 40 CFR part 97.

For the reasons discussed above, Kansas' SIP revision complies with the 2016 allowance allocation SIP requirements established in the CSAPR FIPs as codified at 40 CFR 52.38. Through this action, EPA is approving Kansas' March 30, 2015, SIP revision, incorporating the allocations into the SIP, and amending the CSAPR FIPs' regulatory text for Kansas at 40 CFR 52.882 to reflect this approval and inclusion of the state-determined allowance allocations for the 2016 control periods. EPA is not making any other changes to the CSAPR FIPs for Kansas in this action. EPA is taking final action to approve Kansas' March 30, 2015 SIP revision because it is in accordance with the CAA and its implementing regulations.

EPA is taking final action to approve Kansas' March 30, 2015, CSAPR SIP revisions that provide Kansas' state-determined allowance allocations for existing EGUs in the State for the 2016 control periods to replace certain allowance allocations for the 2016 control periods established by EPA under the CSAPR. Consistent with the flexibility given to states in the CSAPR FIPs at 40 CFR 52.38, Kansas' SIP revision allocates allowances to existing EGUs in the State under the CSAPR's NOX annual trading program. Kansas' SIP revision meets the applicable requirements in 40 CFR 52.38 for NOX annual allowance allocations for the 2016 control periods. EPA is approving Kansas' SIP revision because it is in accordance with the CAA and its implementing regulations.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective September 30, 2015 without further notice unless the Agency receives adverse comments by September 21, 2015.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 30, 2015 and no further action will be taken on the proposed rule.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 20, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask the EPA to authorize their changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations codified in Title 40 of the Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

Idaho's hazardous waste management program received final authorization effective on April 9, 1990 (55 FR 11015, March 29, 1990). Subsequently, the EPA authorized revisions to the State's program effective June 5, 1992 (57 FR 11580, April 6, 1992), August 10, 1992 (57 FR 24757, June 11, 1992), June 11, 1995 (60 FR 18549, April 12, 1995), January 19, 1999 (63 FR 56086, October 21, 1998), July 1, 2002 (67 FR 44069, July 1, 2002), March 10, 2004 (69 FR 11322, March 10, 2004), July 22, 2005 (70 FR 42273, July 22, 2005), February 26, 2007 (72 FR 8283, February 26, 2007), December 23, 2008 (73 FR 78647, December 23, 2008), and July 11, 2012 (77 FR 34229, June 11, 2012).

This final rule addresses a program revision application that Idaho submitted to the EPA in February 2015, in accordance with 40 CFR 271.21, seeking authorization of changes to the State program. On June 2, 2015, the EPA published a proposed rule (80 FR 31338) stating the Agency's intent to grant final authorization for revisions to Idaho's hazardous waste management program. The public comment period on this proposed rule ended on July 2, 2015, with no comments received.

The EPA has made a final determination that Idaho's revisions to its authorized hazardous waste management program meet all the statutory and regulatory requirements established by RCRA for authorization. Therefore, the EPA is authorizing the revised State of Idaho hazardous waste management program for all delegable Federal hazardous waste regulations codified by Idaho as of July 1, 2013, as described in the Attorney General's Statement in the February 2015 program revision application, and as discussed in Section E of this rule. Idaho's authorized program will be responsible for carrying out the aspects of the RCRA program described in its program revision application subject to the limitations of RCRA, including the Hazardous and Solid Waste Amendments (HSWA) 42 U.S.C. 6924, et seq. (1984). New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA, and which are not less stringent than existing requirements, take effect in authorized states before the states are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Idaho, including issuing permits, until the State is granted authorization to do so.

The effect of this action is that a facility in Idaho subject to RCRA must comply with the authorized state program requirements in lieu of the corresponding Federal requirements to comply with RCRA. Additionally, such persons must comply with any applicable Federal requirements, such as, for example, HSWA regulations issued by the EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized state requirements. Idaho continues to have enforcement responsibilities under its state hazardous waste management program for violations of this program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions, which includes, among others, the authority to:

• Conduct inspections;

• Require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements;

• Suspend, terminate, modify or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This final action authorizing these revisions will not impose additional requirements on the regulated community because the regulations for which Idaho will be authorized are already effective under state law and are not changed by the act of authorization.

On February 11, 2015, Idaho submitted a program revision application to the EPA requesting authorization for all delegable Federal hazardous waste regulations codified as of July 1, 2012, incorporated by reference in IDAPA 58.01.05.000, et seq, which were adopted and effective in the State of Idaho on April 4, 2013. This authorization revision request includes the following federal rules for which Idaho is being authorized for the first time: Removal of Saccharin and its Salts from the Lists of Hazardous Constituents, Hazardous Wastes, and Hazardous Substances, 75 FR 78918, December 17, 2010; Technical Corrections to the Academics Lab Rule, 75 FR 79304, December 20, 2010; Revisions to the Treatment Standards for Carbamate Wastes, 76 FR 34147, June, 13, 2011; Hazardous Waste Manifest Printing Specifications Corrections, 76 FR 36363, June 22, 2011; and Hazardous Waste Technical Corrections and Clarifications Rule, 77 FR 22229, April 13, 2012. The EPA is authorizing the state's hazardous waste program in its entirety through July 1, 2013. There were no final federal RCRA hazardous waste regulations promulgated by the EPA from July 1, 2012 to July 1, 2013.

Under RCRA Section 3009, the EPA may not authorize state law that is less stringent than the Federal program. Any state law that is less stringent does not supplant the Federal regulations. State law that is broader in scope than the Federal program requirements is not authorized. State law that is equivalent to, and state law that is more stringent than, the Federal program may be authorized, in which case those provisions are enforceable by the EPA. This section discusses certain rules where the EPA has made the finding that Idaho's program is more stringent and will be authorized, and discusses certain portions of the Federal program that are not delegable to the State because of the Federal government's special role in foreign policy matters and because of national concerns that arise with certain decisions.

The EPA does not authorize states to administer Federal import and export functions in any section of the RCRA hazardous waste regulations. Even though states do not receive authorization to administer the Federal government's import and export functions, found in 40 CFR part 262, subparts E, F and H, state programs are required to adopt the Federal import and export provisions to maintain their equivalency with the Federal program. Idaho amended its import and export laws to include the Federal rule on Organization for Economic Cooperation and Development (OECD) Requirements; Export Shipments of Spend Lead-Acid Batteries (75 FR 1236, January 8, 2010). The State's rule is found at IDAPA 58.01.05.006. The EPA will continue to implement those requirements directly through the RCRA regulations.

The EPA has found that Idaho's Emergency Notification Requirements (IDAPA 58.01.05.006.02), are more stringent than the Federal program. This is because the State's regulations require that the State Communications Center be contacted along with the Federal Center. The EPA has found the State's statutory requirement requiring hazardous waste generators and commercial hazardous waste disposal facilities to file annual hazardous waste generation reports, Idaho Code § 39-4411(4) and 39-4411(5), to be more stringent than the Federal program. As the EPA can authorize rules that are determined to be more stringent than the Federal program, these requirements are authorized.

Idaho will continue to issue permits for all the provisions for which it is authorized and administer the permits it issues. If the EPA issued permits prior to authorizing Idaho for these revisions, these permits would continue in force until the effective date of the State's issuance or denial of a state hazardous waste permit, at which time the EPA would modify the existing EPA permit to expire at an earlier date, terminate the existing EPA permit for cause, or allow the existing EPA permit to otherwise expire by its terms, except for those facilities located in Indian Country. The EPA will not issue new permits or new portions of permits for provisions for which Idaho is authorized after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which Idaho is not yet authorized.

Idaho is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. Indian country includes:

1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Idaho;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation, that qualifies as Indian country.

Therefore, this action has no effect on Indian country. The EPA will continue to implement and administer the RCRA program on these lands.

This final rule revises the State of Idaho's authorized hazardous waste management program pursuant to Section 3006 of RCRA and imposes no requirements other than those currently imposed by state law. This final rule complies with applicable executive orders and statutory provisions as follows:

This action authorizes revisions to the federally approved hazardous waste program in Idaho. This type of action is exempt from review under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), and Executive Order 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This final rule does not establish or modify any information or recordkeeping requirements for the regulated community.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et seq., generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business, as codified in the Small Business Size Regulations at 13 CFR part 121; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. The EPA has determined that this action will not have a significant impact on small entities because the final rule will only have the effect of authorizing existing requirements under state law and imposes no additional requirements beyond those imposed by state law. After considering the economic impacts of this action, I certify that this action will not have a significant economic impact on a substantial number of small entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. This action imposes no new enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of Section 203 of the UMRA because it contains no regulatory requirements that might significantly or uniquely affect small government entities.

This action does not have federalism implications. It will not 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, as specified in Executive Order 13132. This final rule authorizes existing state rules. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicited comment on the proposed action from state and local officials but did not receive any comments.

This action does not have tribal implications, as specified in Executive order 13175, because the EPA retains its authority over Indian Country and does not authorize the state to implement its authorized program in Indian Country within the state's boundaries. Thus, the EPA has determined that Executive Order 13175 does not apply to this final rule. The EPA specifically solicited comment on the proposed rule from tribal officials and received no comments.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to EO 13045 because it approves a state program and is authorizing existing state rules.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a “significant regulatory action” as defined under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs the EPA to provide Congress, through the OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, the EPA did not consider the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action authorizes existing state rules which are equivalent to, and no less stringent than existing federal requirements.

Congressional Review Act (CRA), 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the US Senate, the US House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective September 15, 2015.

The EPA Region 4 is publishing this direct final Notice of Deletion of the National Southwire Aluminum (Site), from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which the EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. The EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare or the environment. Sites on the NPL may be the subject of remedial act ions financed by the Hazardous Substance Superfund (Fund). As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that the EPA is using for this action. Section IV discusses the National Southwire Aluminum Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses the EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that the EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), the EPA will consider, in consultation with the state, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, the EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. The EPA conducts such five-year reviews even if a site is deleted from the NPL. The EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) The EPA consulted with the state of Kentucky prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register.

(2) The EPA has provided the state 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the state, through the Kentucky Division of Waste Management (KDWM), has concurred on the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in the Hancock County Clarion. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, the EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter the EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist the EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides the EPA's rationale for deleting the Site from the NPL:

The Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS) EPA ID Number of the NSA Site is KYD049062375. The Site is an active aluminum reduction facility located in Hancock County, Kentucky, a sparsely populated area on the south bank of the Ohio River. The Site is located 4 miles northwest of the town of Hawesville and across the Ohio River from the Indiana cities of Cannelton and Tell City. The land surface is characterized by low relief and lies approximately 40 feet above the local normal water level of the Ohio River.

The facility area, including adjacent agricultural land, is 1,100 acres. The aluminum reduction activities take place in a 475-acre area located to the east of State Route 334 and to the north of State Route 3543. Public access to the Site is restricted by a chain-link fence. In addition, access to and from the plant area is controlled by a guardhouse located at the State Route 3543 entrance. Southwire operated the facility from 1969 to 2001. In April 2001, Southwire transferred ownership of the facility and the majority of the former NSA property to Century Aluminum of Kentucky, LLC (Century). Century continues to operate the aluminum reduction facility. Southwire retained responsibility for completion of the remedy and also maintains ownership of a small parcel on the northwestern part of the property (referred to as the Southwire Outlot).

There were two primary historic practices that contributed to the contamination at the Site. These included the removal, replacement and disposal of spent potliners in an uncontrolled manner and the use of polychlorinated biphenyl (PCB) heat transfer fluids as part of pitch operations. These activities adversely affected the Site soil and groundwater. In 1986, the KDWM performed a preliminary assessment at the Site and identified the presence of cyanide in groundwater. A Site Scoring Investigation was performed by the EPA and completed in 1991. The EPA proposed to add the Site to the NPL in the June 29, 1991 Federal Register. The Site was listed final on the NPL: 27989-27996 Federal Register Vol. 59, No. 103, on May 31, 1994.

A Non-Time Critical Removal Action (NTCRA) was completed in 1997 at the South Slurry Pond to reduce the migration of fluoride and cyanide to groundwater.

The Remedial Investigation (RI) was performed to further characterize the nature and extent of known areas of contamination, to ascertain the presence or absence of any additional areas of concern at the Site, and to describe the fate and transport of the contaminants present.

The analytical results of the RI/FS indicated the presence of two cyanide contaminated groundwater plumes. The north plume extended eastward from the Potliner Disposal Area to the Ohio River, and contained maximum concentrations of 21 milligrams per Liter (mg/L) total cyanide and 1.5 mg/L free cyanide. The total and free cyanide concentrations decreased at the river to 0.723 mg/L and 0.445 mg/L, respectively. The south plume extended bi-directionally from the area of the Spent Potliner Accumulation Building eastward to the river and southwestward to the plant's industrial water supply wells. Total cyanide levels were 0.142 mg/L or less, while free cyanide levels in groundwater sampled from wells near the river were 0.02 mg/L or less. The RI/FS also reported the presence of fluoride and heavy metals in groundwater. The RI/FS indicated that fluoride mobility was naturally limited by precipitation of calcium fluoride. The heavy metals identified in groundwater were addressed by the Record of Decision (ROD), and the EPA determined that it seemed unlikely that the expenditure of resources on an area-wide sampling and cleanup effort would bring a measurable improvement to ecological risk with regard to metals.

The analytical results of the RI/FS also indicated the presence of PCBs and polycyclic aromatic hydrocarbons (PAHs) in Site soils. These constituents were generally identified in carbon and/or pitch handling areas at the Site. Concentrations of PCBs were as high as 2,800 milligrams per kilogram (mg/Kg) in the subsurface soil at the Green Carbon pitch handling areas where spills occurred. Low concentrations of PCBs (<50 mg/Kg) were also identified in a few other isolated areas of the Site, such as the Refractory Brick Disposal Areas (RBDAs). Detailed information regarding the findings of the RI/FS activities can be found in the 1997 Remedial Investigation Report and the 1998 Feasibility Study Report.

The ROD identified seven (7) areas of concern based on the results of the RI/FS, the Baseline Risk Assessment (BRA) and the Ecological Risk Assessment (ERA). These focus areas included the following:

The remedial action objectives (RAOs) presented in the ROD for the seven (7) focus areas, consisted of the following:

Minimize direct contact by Site workers and the public with soil containing excessive levels of PCBs,

Minimize direct contact by Site workers and the public with soil containing excessive levels of PAH compounds,

Minimize transport of contaminated soil by erosion to water courses, including the Ohio River,

Minimize potential leaching of total PCBs to Site groundwater from areas of high concentrations,

Remediate groundwater contaminated with elevated levels of cyanide and fluoride, and

Prevent deterioration of the Old South Slurry Pond containment system.

The NTCRA at the South Slurry Pond was conducted to reduce the migration of fluoride and cyanide to groundwater. Groundwater with elevated levels of fluoride is naturally limited by the precipitation of calcium fluoride. Groundwater with elevated levels of cyanide was treated at the OU1 Groundwater Extraction and Treatment System (GETS).

The ROD presented the selected remedy to achieve these RAOs at each of the seven (7) focus areas. These seven (7) focus areas and the selected remedy presented in the ROD for each area is as follows:

Land-use and groundwater-use deed restrictions; surface and subsurface “hot spot” removal to off-site secure landfill; rerouting utilities, where necessary; installation of a low-permeability multimedia cap; operational controls to limit physical contact; monitoring of groundwater for PCBs; material with lower-level PCB contamination disposed under the new Taylors Wash Landfill cap and cover.

Land-use and groundwater-use deed restrictions; install soil erosion cap, establish a grass cover, and install fencing with warning signs; remove layer of sediment from lengths of the Drainage Ditch and Muddy Gut Tributary and dispose under the new Taylors Wash Landfill cap and cover or dispose off-site with other PCB soils.

Deed restrictions; collection and treatment of leachate utilizing a new force main from the Landfill to the existing groundwater treatment plant; install RCRA Subtitle D multi-media cap and cover; install fencing with warning signs.

Determine PCB and other contaminant of concern (COC) concentrations of `hotspots'; excavate `hot spots' and dispose of contaminated material under the new Taylors Wash Landfill cap; cover excavations with clean fill and appropriate surface treatment.

Excavate one foot of existing surface soils over the entire Area and dispose under the Taylors Wash Landfill cap after confirming PCB concentrations; install erosion cap over Area and establish grass cover.

Impose deed restrictions for groundwater use where not already imposed; continue groundwater extraction and treatment as required by April 14, 1994 Remedial Design/Remedial Action (RD/RA) Consent Decree (operate and maintain Groundwater Extraction and Treatment System); monitor Site-wide groundwater and Groundwater Treatment System Kentucky Pollution Discharge Elimination System (KPDES) discharge; investigate soils under Spent Potliner Accumulation Building.

Maintain existing cap and cover; impose land-use deed restrictions for all four (4) ponds; monitor groundwater as a part of the Site-wide groundwater monitoring.

The ROD was completed in July 2000, the SOW was completed in November 2000 and the Consent Decree (CD) was entered in U.S. District Court on March 8, 2004. The initial response activities associated with OU1 and the NTCRA were completed in 1997 before issuance of the ROD. The remedial design activities associated with OU2 commenced following execution of the CD. There are no Amendments or Explanations of Significant Differences to the 2000 ROD.

The Interim Record of Decision (IROD) was issued in 1993, and a CD for the interim remedial action activities was executed in 1994. The IROD focused on reducing cyanide in groundwater and is referred to as OU1. The Interim Remedial Action Groundwater Pumping and Treatment System Remedial Design (IRA RD) was completed in 1994. The GETS design included an extraction well network consisting of six total wells installed in the cores of the north and south plume to maximize the withdrawal of cyanide-contaminated groundwater. The groundwater treatment plant was designed to remove iron-complexed cyanide using ferrous precipitation and settling. The treatment process involved five basic steps: cyanide precipitation, cyanide solids removal, ferric iron precipitation, iron solids removal, and dewatering of the combined sludge from the two solids removal steps. The GETS was designed to discharge treated groundwater to the Ohio River under the terms of a KPDES Permit. In addition, the Performance Standards Verification Plan (PSVP) developed as part of the IRA RD included a system of thirty-seven (37) groundwater monitoring wells sampled on a quarterly or annual basis for total and free cyanide.

The remedial action activities associated with OU1 commenced in 1995, with the startup of the GETS. The GETS operated from 1995 through 2010, when the performance standards for OU1 were met. The GETS collected groundwater from up to six extraction wells operating in the north and/or south plumes at rates of up to 690,000 gallons per month under Kentucky Water Withdrawal Permit No. 1330. Groundwater was treated at the on-site groundwater treatment plant and discharged to the Ohio River in accordance with a KPDES Permit. Effluent from the groundwater treatment plant was monitored bi-weekly in accordance with the permit. The extraction wells were monitored on a monthly basis, and monitoring wells associated with OU1 were monitored on a quarterly or annual basis during GETS operation. The GETS operation and monitoring results have been documented in the Monthly Progress Reports required by the CD. Detailed information regarding the OU1 cleanup activities can primarily be found in the 2011 Remedial Action Report, which includes the 2011 OU1 Performance Standards Verification Report as an attachment.

The ROD was issued in 2000, and a CD for the remedial action activities was executed in 2004. With regard to OU2, the ROD primarily focused on the removal and management and/or containment of surface and subsurface soils from five specific focus areas contaminated with PCBs. The design criteria established in the ROD followed the self-implementing provisions of the Toxic Substances Control Act (TSCA) defined in 40 Code of Federal Regulations (CFR) 761.61(a)(4)(i). In summary, the design criteria under TSCA required:

High-Occupancy Areas: The removal of PCB bulk remediation waste to a level less than 1.0 mg/Kg total PCBs, or removal to a level less than 10.0 mg/Kg total PCBs and covered with a protective soil cap.

Low-Occupancy Areas: The removal of PCB bulk remediation waste to a level less than or equal to 25 mg/Kg total PCBs, to a level less than or equal to 50 mg/Kg total PCBs if the areas is secured by a fence and marked with signage, or to a level of less than or equal to 100 mg/Kg total PCBs if the area is appropriately capped.

The plans for meeting the criteria established in the ROD were developed in the Final RD/RA Submittal and approved by the EPA in 2006. The RD/RA was designed to meet the criteria defined above through a series of remedial actions that are further described below.

The remedial action activities associated with OU2 commenced in 2007, and were substantially complete in 2008, when the performance standards associated with this operable unit were achieved. The remedial action activities were specific to five focus areas and are summarized below:

Green Carbon PCB Spill Area: The remedial action activities in the Green Carbon Area primarily required the excavation and removal of materials (mainly soils) potentially contaminated with PCBs from depths of 2 to 14 feet. During material removal activities, confirmatory/verification sampling and material characterization activities were conducted in accordance with the approved RD/RA. Following material characterization, the removed materials were staged in the Taylor's Wash Landfill Area and ultimately disposed of either at Taylor's Wash, at a RCRA Subtitle D Landfill or at a TSCA-equivalent disposal facility in accordance with the provisions of the ROD and RD/RA. A multi-layer cap was installed in the deep excavation areas (depths up to 14). Clean fill materials and, ultimately, pavements (concrete or asphalt) were installed above the multi-layer cap. In shallow excavation areas (depths up to 2 feet), the RD/RA included a layer of clean fill materials and/or concrete pavement. The activities were completed in December 2007.

Drum Storage Area: The remedial action activities in the Drum Storage Area primarily required the excavation of soil materials potentially contaminated with PCBs or PAHs to depths of up to 2 feet. During material removal activities, confirmatory/verification sampling and material characterization activities were conducted in accordance with the approved RD/RA. Following material characterization, the removed materials were staged in the Taylor's Wash Landfill Area and ultimately disposed of either at Taylor's Wash, at a RCRA Subtitle D Landfill or at a TSCA-equivalent disposal facility in accordance with the provisions of the ROD and RD/RA. Clean fill materials were placed in the excavation areas. The activities were completed in September 2007.

Refractory Brick Disposal Areas: The cleanup activities in the RBDAs primarily required the regrading of existing materials and the installation of a 2-foot soil cap with a minimum of one percent slope. In addition, the preliminary design activities conducted in 2005 identified wetlands in the vicinity of the RBDAs. The RD/RA included provisions to minimize disturbance to wetlands in the vicinity of the RBDAs and to restore the areas following wetlands mitigation principles. The activities were completed in November 2007.

PCB Soil Stockpile Area: The cleanup activities at the PCB Soil Stockpile Area primarily required the installation of a 2-foot soil cap with a minimum of one percent slope. The activities were completed in September 2007.

Taylor's Wash Landfill: The cleanup activities at the Taylor's Wash Landfill primarily consisted of the regrading of excavated soils from the Green Carbon and Drum Storage Areas with PCB concentrations of less than 25 mg/Kg. Following the regrading activities, the ROD required the installation of a multi-layer cap and vegetative cover system. These activities were completed in July 2008. In addition, as the ROD required, activities related to the collection and treatment of leachate from the landfill for a period of one year, or until other established criteria had been met, were implemented. Leachate from the landfill was pre-treated adjacent to the Taylor's Wash Landfill area and treated at the OU1 groundwater treatment plant. The leachate treatment activities were completed in August 2009.

In addition to the cleanup activities described above, the ROD also required the installation of fencing at the Taylor's Wash Landfill and the RBDAs, and the installation of warning signs to prevent digging or excavation at the Green Carbon Area, RBDAs, PCB Soil Stockpile Area and Taylor's Wash Landfill. These activities were completed by August 2008. Detailed information regarding the OU2 cleanup activities can be found in the 2011 Remedial Action Report.

The EPA and the KDWM have indicated that all remedial action construction activities, including the implementation of institutional controls, were performed in compliance with the ROD and in accordance with the Final Remedial Design (RD). In 2013, the EPA prepared a Final Close Out Report to document the completion of the remedial action activities.

The construction and operation and maintenance QA/QC requirements related to the Site are included as appendices to the 2006 RD/RA that encompassed all areas of concern and was approved by the EPA in June 2006. The RD/RA included the Construction Quality Assurance Project Plan (specific to OU2) and the Field Sampling Plan (inclusive of OU1 and OU2). These work controlling documents are consistent with the requirements of the IROD and ROD. Southwire retained URS to serve in the role of the Quality Assurance firm and to document that the QA/QC protocol was followed.

A significant number of QA/QC reports were developed during implementation of cleanup activities at both OU1 and OU2. The reports consisted of, but were not limited to, material certifications, air monitoring data, groundwater monitoring and extraction well analytical data, treatment system discharge analytical data, soil confirmation data, liner testing results, waste characterization data, Site surveys and field observations. As demonstrated by the reports, the requirements and standards of performance for the various remedy components have been met and sampling and analysis protocol has been followed.

The QA/QC information and activities described above have been documented in the Monthly Progress Reports for the Site, the 2011 Remedial Action Report and the 2013 Final Close-Out Report.

A detailed description of the required Operations and Maintenance Manual (O&M) activities specific to the Site can be found in the 2008 Operations and Maintenance Manual for OU1, OU2 and South Slurry Pond Remedial Action Activities (O&M Manual). The manual was developed to be inclusive of all Superfund-related O&M activities required at the Site and will be updated as needed.

The O&M activities for OU1 were related to groundwater monitoring and operation of the GETS. The activities related to OU1 were completed in May 2010. The O&M activities for South Slurry Pond are related to groundwater monitoring and inspection of the cap/cover system. The South Slurry Pond activities are anticipated to continue for a total of thirty (30) years, or through 2027. The O&M activities for OU2 are primarily related to inspection of the installed cap and/or cover systems. These activities related to OU2 are anticipated to continue for a total of thirty (30) years, or through 2038.

The O&M activities for OU2 and the South Slurry Pond are ongoing and consist primarily of field inspection/observation activities and groundwater monitoring. The following list is a general overview of the O&M activities at the Site.

Inspect vegetative/erosion/pavement caps for erosion, rutting, settlement, ponding or other significant damage.

Inspect fencing, gates and locks for significant breaches and operability.

Observe signage is in required locations and visible.

Observe stormwater systems and confirm operating without restrictions, significant silt buildup, debris, etc.

Observe monitoring well casings and locks for damage.

Review groundwater monitoring records to confirm that the appropriate monitoring has been conducted.

Continued groundwater monitoring associated with the south slurry pond.

The O&M activities will continue to be implemented by Southwire and an annual O&M Monitoring Report for the Site will be prepared in accordance with the O&M Manual. More detailed information related to the required O&M at the Site can be found in the O&M Manual.

The ROD required the development of Institutional Controls in the form of Environmental Covenants to restrict groundwater and land use at the Site. Two Environmental Covenants were prepared for the Site, one for Century's property and one for the Out lot containing the former waste impoundments owned by Southwire. These Environmental Covenants were developed, approved by the EPA and KDWM\ and recorded at the Hancock County Court in November 2010. The Environmental Covenants include the following provisions, as required by the ROD:

No residential use of the Site,

No potable water use of groundwater at the Site, and

No soil disturbance, cap disturbance or construction is permitted within the identified focus areas without first obtaining approval from the EPA and KDWM.

The Institutional Controls are maintained and enforced by the current Site owners, Southwire and Century.

Pursuant to CERCLA section 121(c), 42 U.S.C. 9601 et seq., and the EPA's Five-Year Review Guidance, and because this remedy will result in hazardous substances, pollutants or contaminants remaining on-site above levels that allow for unlimited use and unrestricted exposure, a statutory review must be conducted every five years after initiation of remedial activities at the Site. The objective of the Five-Year Review is to ensure that the remedy continues to be protective of human health and the environment. The First Five-Year Review was completed in 2001, and the Second Five-Year Review was completed in 2006. The Third-Five Year Review was signed on September 1, 2011.

The protectiveness statement from the Third Five-Year Review indicated that all remedial activities at the Site are complete, the cleanup requirements have been met and the remedial action is protective of human health and the environment. The Fourth Five-Year Review is required to be completed on or before September 1, 2016.

As part of preparation for the IROD, a public comment period was held from January 7, 1993 to February 7, 1993, and comment response was included in the IROD.

As part of preparation for the ROD, a public comment period was held from July 28, 1999 to August 28, 1999 and comment response was included in the ROD.

As part of the preparation for the Five-Year Review—a public notice was published in the Hancock County Clarion (local newspaper), on May 5, 2011, announcing the commencement of the Five-Year Review process for the National Southwire Aluminum Superfund Site inviting community participation. In addition, the Five-Year Review report will be made available to the public once it has been finalized.

The NSA Site meets all of the site completion requirements specified in 40 CFR 400.325(e) and the Office of Solid Waste and Emergency Response (OSWER) Directive 9320.2-22, Close Out Procedures for NPL Sites. Specifically, the QA/QC information for the Site indicates that the ROD specified performance standards and remedial action objectives have been achieved at all identified areas of concern. Therefore, the implemented remedy achieves the degree of cleanup and protection specified in the ROD, and no further Superfund response is needed at the Site to be protective of human health and the environment. The selected remedial and removal actions and associated cleanup goals are consistent with EPA policy and guidance. The O&M activities will be continued by Southwire to ensure continued protectiveness of the remedy.

The EPA, with concurrence of the State of Kentucky through the Kentucky Division of Waste Management, has determined that all appropriate response actions under CERCLA, other than operation, maintenance, monitoring and five-year reviews have been completed. Therefore, the EPA is deleting the Site from the NPL.

Because the EPA considers this action to be noncontroversial and routine, the EPA is taking it without prior publication. This action will be effective October 5, 2015 unless the EPA receives adverse comments by September 21, 2015. If adverse comments are received within the 30-day public comment period, the EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion, and it will not take effect. The EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows: